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tinted windowsIn the past, we have written several blogs about the importance of suppression in criminal cases in general and specifically with DWI cases.  Recently, a court granted a defendant’s motion to suppress in a New York DUI case that was initiated by police officers pulling the defendant over for having tinted windows. The court granted the motion based on a total lack of testimony regarding the officers’ observations of the degree of tint on the defendant’s windows. The court noted that excessive tint is a valid basis for a New York traffic stop. However, here the prosecution failed to elicit evidence that the tint on the defendant’s windows was greater than that which was legally permissible.

The Facts of the Case

The defendant was pulled over by an off-duty police officer based on the vehicle’s tinted windows. The off-duty officer testified that he instructed the defendant to pull over and, through his open window, could smell the odor of alcohol and could see that the defendant’s eyes were watery and bloodshot. The officer also testified that he based these conclusions on his twelve years as a New York City police officer. The officer explained that the only reason he pulled the defendant over was that he noticed “tinted windows.”

The off-duty officer called in back-up, who arrived a short time later. The back-up officer was less experienced than the off-duty officer, but testified to having made between 12-15 DUI arrests in his 15 months as a New York City police officer. The officer also noted that the defendant smelled of alcohol.

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Refusing to take a chemical test in New York can come with very serious consequences.  For example, a motorist who refuses a properly requested best-dwi-attybadgebreath test can have his or her license revoked for a minimum period of one year even if they beat the DWI case.  If a person has prior alcohol related incidents, the period of revocation can be much longer, even life.  Fortunately, before revoking a license because of an alleged refusal, the motorist is entitled to some level of due process.  In New York this requires that the Department of Motor Vehicles hold a hearing to determine whether the motorists’ license will be revoked.  In New York the criminal case, the DWI, and the refusal follow two different tracks.  The DWI is handled in Court while the refusal goes to a hearing before an administrative law judge that works for DMV.  In addition, the burden of proof is lower in refusal hearings.

Last week, Tilem & Associates Partner Peter Tilem conducted  a “refusal hearing” in the New York and beat the refusal. That means that the police did not sustain their burden of proving the elements necessary to revoke the license and the matter was dismissed by the DMV administrative law judge. This particular motorist was charged with both DWI and had the refusal.  He had two prior convictions for Driving While Ability Impaired by Alcohol (DWAI) and either a conviction in the DWI case (including a conviction for a reduced DWAI) or a finding that he refused could have resulted in a lifetime revocation of his New York driving privileges. Thankfully, after an almost one hour cross-examination of the police officer the DMV judge dismissed the refusal.

At a New York DWI Refusal hearing the police must establish 4 separate elements in order to win the refusal hearing.

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Legal News GavelIn a recent New York court opinion, the court analyzed whether a police officer can enter a license plate into a government database to check for any suspensions, outstanding violations, and the registration of the vehicle without first developing any suspicion that the vehicle was engaged in criminal activity. More specifically, the court ruled that this review of the license plate information does not constitute a search.  Given the fact that many modern police cars are equipped with license plate readers and fixed license plate readers are becoming more commonplace, the issue is of paramount importance.

The facts of the case that gave rise to this opinion are as follows. In 2014, a police officer saw a vehicle drive past him. The vehicle was operated by the defendant. During the eventual trial on the matter, the officer stated that he did not see the vehicle engaging in any traffic violations or otherwise erratic behaviors. The police officer entered the vehicle’s license plate into his computer system, which was linked to the Department of Motor Vehicles. The analysis indicated that the registration for the vehicle was suspended due to outstanding parking tickets. The officer then initiated a stop of the vehicle. During that stop, the officer conducted a database search of the defendant’s driver’s license and discovered that his license was also suspended. Ultimately, the officer initiated an arrest of the defendant for driving while intoxicated as well as for operating a vehicle with a suspended license and registration.

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As very experienced New York DWI Attorneys we are often asked to assist other attorneys on complex DWI cases.  Recently, that request paid off for the attorney and his client after all charges related to a Rockland County DWI were dismissed.   In November Tilem & Associates was hired to take the lead in a suppression hearing for a client who was facing DWI charges and who was not being offered any plea bargain.  We had sought the suppression of statements and breath that we asserted were taken illegally from our client after he was illegally taken out of his car.

At the suppression hearing, one police officer testified.  The officer claimed that in response to a 911 call the officer responded to a location and saw our client in a vehicle that matched the description given to the 911 operator.  On cross-examination, by me, the officer admitted that at the time the officer approached the vehicle and removed the driver from the vehicle that there was no reason to believe that the motorist had committed any offense other than a parking violation for parking on the line in a parking lot.  The officer claimed that the motorist was asleep in the vehicle and tried to justify further action as a “welfare check” to ensure that the motorist was ok.  However after responding that he was ok, I attacked the officers continued investigation, including: removing the motorist from the vehicle, bringing the motorist to the back of the vehicle, questioned the motorist, conducted standardized field sobriety tests and detained the motorists while other witnesses were questioned.  The Judge ruled that all of those actions exceeded the authority that the officer had at the the time of incident.

As we have discussed extensively in the past, in a case called People v. Debour, New York’s highest Court recognized four different levels of intrusion that police officers may have based on the police officers level of suspicion.  The lowest level, level one, the right to inquire, gives the police officer very limited authority to make inquiries about a person.  Such inquiries may not be pointed or accusatory in nature.  In the case in Rockland County, the Judge correctly ruled that the police officers authority capped at Debour level one there by only giving the officer the very limited right to inquire. Therefore, all of the statements and other evidence derived after that illegal conduct were suppressed, leaving no evidence and therefore no provable case.

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New York Traffic Court Attorneys, Tilem & Associates has been able to verify rumors that have made the rounds of social media that for the first time New York State Troopers have been patrolling New York City Highways including the Belt Parkway in Brooklyn, The FDR Drive in Manhattan and the New England Thruway in the Bronx.  The Troopers have been seen pulling over cars and handing out summonses for unknown traffic violations most likely speeding and failing to signal lane changes.

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CLICK HERE TO CONTACT US ABOUT A DISCOUNT ON FIGHTING TICKETS ISSUED BY TROOPERS

In reality the New York State Police do have a small Troop in New York City that is headquartered at Wards Island by the TriBoro (Robert F Kennedy) Bridge.  Although the State Police have chosen not to engage in many law enforcement functions inside of New York City, New York State troopers are Police Officers as defined in the Criminal Procedure Law (CPL 1.20 (34a)) and have the power to issue simplified traffic informations also known as summonses or traffic tickets.  In addition, subdivision 34-a of Criminal Procedure Law 1.20 defines the “geographical area of employment” of a police officer employed by a state agency as “New York State”.  Meaning that State Police Officers maintain their jurisdiction throughout all of New York State including the five boroughs of New York City.

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For those driving their kids to school at Binghamton or Syracuse Universities or taking summer vacations in upstate New York, Tilem & Associates is pleased to offer a limited time offer to help  out with those inevitable but costly traffic tickets.  With the cost of traffic violations  through the roof and the summer driving season  in full swing drivers need experienced legal representation that they can afford.  For a limited time and in limited locations we are offering legal representation on traffic infractions for only $285 in Broome, Delaware, Lewis, Onondaga, Oswego and Seneca Counties.  Those Counties contain the below Cities,  Towns and Villages that will be handling a lot of traffic tickets that are issued over the summer.

CONTACT US NOW TO TAKE ADVANTAGE OF THIS SPECIAL BEFORE TIME RUNS OUT!

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Broome County: Barker, Binghamton, Chenango, Colesville, Conklin, Dickinson, Fenton, Kirkwood, Lisle, Maine, Nanticoke, Sanford, Triangle, Union,

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New York Traffic Lawyers Tilem & Associates successfully won a motion which resulted in a speeding ticket being dismissed completely on novel grounds. Our client was charged with a violation of VTL §1180 (c) for traveling 40 miles per hour in a 25 mile an hour zone. Approximately 15 days after receiving the ticket, the Defendant mailed the ticket to court indicating that he was pleading not guilty and further indicating that he was requesting supporting depositions.

New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier.

Approximately six days after receiving the Defendant’s request, the Court mailed an order for the supporting deposition to the local sheriff’s department and acknowledged the Defendant’s request. Approximately six days after that the Defendant received a copy of the supporting deposition. However, the affidavit of service accompanying the supporting deposition says that it was mailed to the Defendant but it not specify the address of the Defendant to which the supporting deposition was allegedly mailed.

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New York Criminal Defense law firm, Tilem & Associates has seen an increase in the number of Reckless Driving tickets and other related moving violations, which is consistent with recent media reports that a crackdown on hazardous driving is underway by the NYPD. According to the media a 24 hour per day, 7 day per week crackdown will target drivers who speed, run red lights and use cell phones or other portable electronic devices. These violations which are among the most common also carry the most points and can have the greatest impact on a driver’s license and a driver’s insurance rates. A reckless driving ticket carries 5 points and is a criminal offense under New York Law, a cell phone ticket, which up until several years ago was a no-point violation now also carries 5 points. Speeding tickets can carry anywhere from between 3 and 11 points and Red light tickets carry 3 points. A motorist generally loses their license at 11 points.

The latest NYPD reckless driving crackdown is consistent with Mayor de Blasio’s “Vision Zero” plan which has the goal of eliminating traffic fatalities and comes after a serious accident left a pedestrian serious injured after crossing Linden Boulevard in Brooklyn earlier this week.

“The good news for motorists is that an experienced traffic lawyer can generally get substantial reductions in the points associated with tickets and very often eliminate the points altogether,” according to traffic lawyer Jasmine Hernandez. “An experienced traffic lawyer can especially have the greatest impact on reckless driving tickets which are among the most serious,” according to Ms. Hernandez.

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If you’re stopped by the police in New York (Greenburgh, White Plains, Harrison, etc) for a traffic infraction such as speeding, should the police read you your “rights” prior to questioning you about where you coming from, if you had anything to drink or if you knew why you were stopped? When a person is arrested they lose certain rights. For example, when one is arrested, they lose their right to liberty and they are subject to a warrantless search incident to their arrest. In fact, a search incident to a lawful arrest is one of the many exceptions to the search warrant requirement.

However, while a person loses certain rights when they are arrested, they also obtain certain rights once they are arrested. For example, before the police can question a person who has been arrested they must read that person their “rights” – the police must “Mirandize” an arrested person before questioning.

There is absolutely no doubt that Uniform Traffic Tickets or Simplified Traffic Informations are also appearance tickets. See e.g., People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket deemed an appearance ticket); People v. Hollinger, 15 Misc. 3d 130A (App. Term 2nd Dept. 2007)(The front of the uniform traffic tickets directed defendant to appear in the Justice Court of the Village of Old Westbury on September 18, 2003, thus serving as an “appearance ticket” under CPL 150.10); Farkas v. State, 96 Misc. 2d 784, 787 fn 1 (N.Y. Ct. Cl. 1978)(Appearance ticket includes, by definition, uniform traffic tickets); People v. Litean, 2008 N.Y. Misc. LEXIS 5475, 240 N.Y.L.J. 33 (N.Y. Sup. Ct. 2008)(“A summons requiring a defendant to appear in court is the equivalent of a desk appearance ticket . . .”); People v. Genovese, 156 Misc. 2d 569, 571 (J. Ct. 1992)(“the yellow copy of the simplified traffic information is an appearance ticket as defined by CPL 150.10”).

Since People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) held that the detention of a person by the police for the purpose of issuing such person an appearance ticket creates an “arrest situation” justifying a search of such person just as if they had been formally arrested, doesn’t it follow that the police would have to Mirandize this so-called “arrested” person before questioning them? Why should the police get the benefit of deeming the person “arrested” so they can search them but not allow this “arrested” person the benefit of his Miranda rights just like any other arrested person?

One stopped by the police is clearly not free to go. In People v. Wallgren, 2011 NY Slip Op 51556U, (N.Y. County Ct. Aug. 16, 2011) the police officers testified at the probable cause hearing that defendant’s vehicle was driving erratically and they stopped it only to check on the driver’s “welfare.” However, as observed by the court, the officers were not concerned about the driver’s welfare but instead immediately launched into a DWI investigation:
Notwithstanding both officers’ testimony regarding the welfare
check, Officer Einsfeld, upon approaching the driver’s window,
asked whether the defendant was drinking prior to driving, where
the defendant came from and where the defendant was going.
These questions were clearly indicative of a DWI investigation,
not a welfare check and are designed to solicit incriminating
evidence from a motorist.

Furthermore, the police admitted that “when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person.” Id. The court therefore concluded that the police testimony established that the defendant was in custody from the very inception of the defendant’s encounter with the police: “By [Officer Einsfeld’s] testimony alone the custodial status of the defendant from the very inception was admitted by the police.” Id.

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Have you been charged in New York with “speed not prudent” by an officer who did not witness the alleged offense? Were you involved in an accident and then issued a ticket for an infraction by an officer who did not witness the accident? Judge Malone of the Justice Court of Mendon, New York, noted in People v. Genovese, that the practice whereby police officers in New York issue tickets for traffic infractions they did not witness occurs every day in lower courts across the State.

One of the most common scenarios is where an officer arrives upon the scene of an accident he did not witness and, after conducting an “investigation”, concludes that one of the drivers (or the only driver if it was a single car accident) had to be driving at a speed not reasonable and prudent and issues a traffic ticket to the “offending” driver charging him or her with violating VTL 1180(a) – “Speed Not Prudent” – which states that:

No person shall drive a vehicle at a speed greater than is reasonable
and prudent under the conditions and having regard to the actual
and potential hazards then existing
.

This practice is wholly improper. First, as detailed above, a police officer cannot issue an appearance ticket for a traffic infraction not committed in his presence. Second, “[t]he mere happening of the accident because of the skidding of [driver’s car] did not warrant the conclusion that there had been negligent operation of a motor vehicle or that the statute had been violated.” Weisinger v. MacDuff, 285 A.D. 607, 611 (1st Dept. 1955). To be guilty of driving faster than is reasonable and prudent, the conduct of the driver must constitute more than mere error of judgment or simple negligence. People v. Benway, 41 Misc.2d 39 (1963) see also Hessney v. MacDuff, 284 A.D. 70, 72 (4th Dept. 1954)(Negligent operation of a motor vehicle may not be inferred merely because a car skidded or an accident happened); Fake v. MacDuff, 281 A.D. 630, 633 (4th Dept. 1953)(The fact that the car skidded or slid off the road does not, standing alone, even constitute ordinary negligence).

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