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.

Had the police officer located the witnesses prior to detaining the motorist, determined that the motorist drove up drunk, that the witness took the motorists keys away and that the motorist then got back in his vehicle, the police officer would have likely been able to stop and question the motorist and perform field sobriety tests on the motorist, without running afoul of the law.

Those of accused of crimes have to recognize that the ability to seek suppression of evidence and in appropriate cases demand a suppression hearing are among the most powerful tools that a defense lawyer has.  An experienced criminal defense lawyer should take a detailed statement from a client and any witnesses about all of the circumstances surrounding a street encounter with the police.  This is especially important in DWI cases as well as possessory crimes such as drug offenses and gun offenses.  In addition, even if suppression is not granted by the Judge, the suppression hearing itself, and in particular the cross-examination of the arresting officer can provide the defense team with very powerful discovery.

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