New York Criminal Attorney Blog

Here at the New York Criminal Defense Firm of Tilem & Campbell we often represent defendants who, in addition to being charged with Driving While Intoxicated or Driving While Ability Impaired (please see previous posts), refused to submit to a chemical test. Almost always, the chemical test in question is a Breathalyzer or similar machine such as an Intoxilyzer which is usually used in New York City or DataMaster which is often used in Westchester County. Our attorneys are often confronted with questions about the consequences of the refusal. There are no New York State criminal consequences; however, there are other consequences that result from a refusal. First, the refusal can be introduced at trial as what is known in New York as consciousness of guilt evidence. Second, at the time of your arraignment, the court will immediately suspend your license pending the prosecution of your case.

Whether one should refuse a chemical test or not is a complex question well beyond the scope of this Blog. As always, my advice is to consult with a skilled and experienced criminal defense attorney. This Blog provides general informative reading but is not a substitute for personalized legal advise.

Essentially, any person who operates a motor vehicle in New York is be deemed to have given consent to a chemical test of, among other things, his or her breath for the purpose of determining the alcoholic and/or drug content of that person’s blood. See generally VTL 1194(2)(a). However, before an officer may request that a motorist take a chemical test, either a lawful arrest for Driving While Intoxicated or Driving While Ability Impaired, or a positive result on a lawfully requested breath screening test must have occurred. (Note: a breath screening test is NOT a Breathalyzer but is instead a test of one’s breath (not blood) given by an officer on the side of the road. The machine used is a small handheld device. The results can be used to establish probable cause to arrest for DWI or DWAI but the results are not admissible at trial. Breath Screening Tests will be discussed in subsequent Blogs.)

As all New York Criminal attorney’s know, very, very few criminal cases actually go to trial. The vast majority of cases are resolved with a plea bargain. This is especially true in the busiest Courts in New York such as Brooklyn, Manhattan and the Bronx where calendars of 100 cases or more per day are not uncommon. In fact, without plea bargaining, the criminal justice system would simply collapse.

The United States Supreme Court has recognized plea-bargaining as both essential and desirable. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Plea-bargaining results in several benefits: (1) the relief of court congestion; (2) alleviation of the risks and uncertainties of trial for both the government as well as the defendant:, and (3) its information gathering value that results from the government offering favorable pleas in return for cooperation, information and/or testimony. People v. Glendenning, 127 Misc.2d 880, 487 N.Y.S.2d 952 (N.Y.Sup. Westchester Cnty 1985).

In New York DWI cases, several factors come into play when plea bargaining takes place. In virtually all cases, the prosecutor is concerned with (1) the defendant’s prior criminal history, especially prior DWI or DWAI arrests (prosecutors typically consider arrests the same as convictions for plea purposes); (2) whether anyone was injured; and (3) whether there was any property damage. In DWI cases other considerations are whether there was an accident and whether the defendant refused to take a chemical test (i.e. a Breathalyzer). The DWI defendant also must be cognizant of the policy of the District Attorney’s Office in the particular county he or she is charged. For example, in Westchester, there will be no offer if the defendant refuses or “blows” .14 or above.

Last night I had the opportunity to begin my cross-examination of a Larchmont Detective who was the prosecutor’s sole witness in a suppression hearing that this firm was conducting on a Driving While Ability Impaired (DWAI) case against one of our clients. The case involves a woman who had a blood alcohol result of only .07 but was arrested in Larchmont, New York a small village in Westchester County. (Please see the last post for more information about the problems with prosecuting such low readings.)

While preparing for the suppression hearing and cross-examining this detective I was reminded of how important these hearings can be in DWI and DWAI cases. Sometimes these hearings can be more important than the trial itself. The stakes are high in suppression hearings. At stake is the suppression of the breath that was used to obtain the blood alcohol content reading and any statements that the police are alleging were made by the defendant. Without these critical pieces of evidence the prosecutor often has little hope of winning.

As a general rule in criminal law known as the “exclusionary rule” evidence and/or statements that are taken by the police in violation of the Constitution are to be suppressed by a Court and are therefore not admissible against the accused. Statements and evidence must also be suppressed if they are the “fruit” or result of the unlawful police conduct. In DWI cases these issues are critical.

Lawyers in this firm have been seeing a large number of arrests for DWI in New York in which the blood alcohol content (BAC) as determined by the breath test is exactly at or even below the legal limit. Jurisdictions that seem to be prosecuting cases that are either exactly on or a little below the legal limit have included Brooklyn and various jurisdictions in Westchester County including the Village of Larchmont, the Town of Greenburgh and the Village of Mamaroneck. While I have not seen any statistics on this phenomenon we have handled many of these cases and have heard about others.

The problems with prosecuting these cases are significant and in order to fully understand the issue one must have at least a basic knowledge of how breath tests work. Firstly, it’s important to understand that the statutory blood alcohol levels refer to the level of alcohol in a person’s blood. Despite this, in the overwhelming majority of cases it is a person’s breath that is tested not their blood. In order the convert the percentage of alcohol in breath into the blood alcohol content defined by statute, the breath machine must make a calculation based upon something called the “blood-breath” relationship. Since the “blood breath” relationship is not the same for every person, this builds in a certain level of error in determining blood alcohol content.

If a person registers a .08 blood alcohol content, even a slight error in the calculation can mean the person is really slightly below the legal limit and therefore not guilty of diving with a blood alcohol content above the legal limit. This fact would not preclude a conviction for something called common law intoxication in which a person’s intoxication can be proven through other factors such as swerving, or failing coordination tests (often called field sobriety tests).

As I discussed in my previous post, DWI charges in New York and New Jersey can effect people from all walks of life and have very serious consequences. Getting an experienced lawyer involved early can make the difference. Evidence needs to be obtained and preserved. For instance, are there credit card receipts or restaurant bills that can be obtained and demonstrate how much alcohol was consumed? Are there bartenders, waiters friends or family members that need to be interviewed and if there was an accident has the car and/or scene been photographed? Put simply, there are a myriad of facts that can be sought and preserved to obtain evidence to be used for your case.

Yet despite all of these potential avenues of attack and the severe consequences of a guilty plea, many attorneys simply recommend that their clients plead guilty without thoroughly investigating the case and without fully explaining all of the consequences of a guilty plea.

This is a scary period of time. You cannot afford to lose your head. The bottom line in all of this is simple. Consult an experienced attorney that you trust as soon as possible. Make sure that the lawyer you hire handles DWIs and then follow his or advice. Ask questions. Make sure you understand your rights and your responsibilities. All too often your actions after your arrest including when you hire an attorney and who you hire can have a significant effect on the outcome of the case.

As if to prove the point of my last post about the pervasiveness of Drinking and Driving in the New York metropolitan area, I just came across the article about a prominent New York Attorney, Albert Gaudelli getting arrested in Queens for DWI.

What particularly caught my attention about this case is that he was apparently drinking at a party hosted by Queens District Attorney Richard Brown who will now be responsible for prosecuting Mr. Gaudelli. In addition, if you read the article, you will see that Mr. Gaudelli, a prominent criminal attorney in New York, also tried to escape from the police by backing away and hitting a police car in the process.

Many of you may remember Albert Gaudelli as the attorney who represented Nicholas “Fat Nick” Minucci in the Howard Beach, New York hate crime trial.

In New York and New Jersey Driving While Intoxicated (DWI) is one of the most pervasive charges facing individuals today. Pervasive in that it is a charge that unlike most other criminal charges, pervades every element of our society. Unlike other criminal defendants who are more often young and poor and often have extensive criminal records, people charged with DWI include teens and baby-boomers, blue collar and white collar individuals, people who drive for a living, and people who would never even think of committing another crime. And pervasive because few other charges can have such far reaching effects. While most criminal charges can result in probation, a fine or even jail, few other charges can result in the loss of your driving privileges and long lasting effects on your insurance premiums. In addition, a conviction can leave you with a permanent criminal record. (In New Jersey the average DWI conviction can cost over $3500 exclusive of insurance premium increase and attorneys fees)

Yet, despite these consequences, few who are accused and few lawyers ever challenge these cases thinking that the prosecution’s case is to strong to successfully litigate.

To further complicate the matter, the recent trend towards toughening DWI laws has created a maze of statutes that are often confusing to not only individuals but also to all but the most experienced lawyers. For instance, while most states suspend or revoke the license of those who refuse to take a breath or other chemical test, New York State now also suspends the licenses of those who do, prior to conviction, while the matter is being litigated. In addition, many places also summarily seize your vehicle.