New York

Published on: March 6, 2012

Court Rules Where DWI Offender Refuses Chemical Test

by Stephen Bilkis

A traffic officer responded to a radio run of an automobile accident at Roosevelt Avenue and Queens Boulevard. When he arrived at the scene, the accused was standing beside an automobile which had been involved in the car accident. The traffic officer testified that the accused had bloodshot eyes, was unsteady on his feet and had the odor of alcohol on his breath. A witness to the accident told the traffic officer that he had seen the accused driving the car. There was no testimony that any other person was observed to be in or around the automobile.

A New York Criminal Lawyer said the accused spoke Spanish and apparently understood little or no English. The traffic officer obtained a driver’s license and other documents bearing the accused man’s name but he was unable to recall whether the documents were given to him by the accused or if they were discovered in the automobile. The accused was placed under arrest and was taken to into the precinct.

A police officer testified that he was called to the precinct to conduct an Intoxicated Driver’s Exam on the accused. In the presence of the traffic officer and the police officer, the accused was shown a Spanish language videotape intended to apprise him of the charges against him and to inform him of the repercussions of refusing to submit to a chemical test analysis or breathalyzer test. The Spanish language tape was translated for the Court by the court interpreter. Such is the only interpretation before the Court as neither the jury nor the accused called an expert witness to translate the videotape.

Published on: March 6, 2012

Court Decides Use of Breathalyzer Under Business Records Exception

by Stephen Bilkis

Initially, the court held that records reflecting the calibration of breath test machine and analysis of breath test simulator solution used in DWI cases were non-testimonial hearsay and admissible over confrontation clause objection under business records exception. The certifications to be submitted for the calibration or maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument are either testimonial or non-testimonial in nature. When proven to be testimonial then the complainant must bring in the analyst. If it is non-testimonial, the complainant may lay the basis for introduction of the records.

Testimonial statements are material such as affidavits, custodial examinations, extrajudicial statements, depositions, prior confession, prior testimony that the accused was unable to cross-examine, similar pretrial statements, formalized testimonial materials and statements that were made under circumstances that the complainant would reasonably expect to be used in the later trial.

A New York Criminal Lawyer said the Supreme Court deliberately left for another day any effort to spell out a comprehensive definition of testimonial. The Court does say that when a non-testimonial hearsay is at issue, it is wholly consistent with the design to afford the states flexibility in their development of hearsay law. The Supreme Court’s analysis of testimony excludes some hearsay exceptions, such as business and official records. To hold otherwise would require numerous additional witnesses without any apparent gains in the truth-seeking process. After all, cross-examination is a tool to flesh out the truth, not an empty procedure.

Published on: March 6, 2012

Defedant Contends Illegal Stop in DWI Case

by Stephen Bilkis

A police officer and his partner were on routine patrol at one of the intersections in Queens County. The officers noticed the woman driving a grey Cadillac passed through a steady red light. The other officer pulled the vehicle over and as he approached, the woman rolled down her window. As the officer requested the woman’s license and registration, he noticed that she had bloodshot, watery eyes, and also detected the strong smell of alcohol on the woman’s breath. The officer further observed that the woman seemed disoriented and unaware of her surroundings. The officer requested the woman to step out of the vehicle, at which he also noticed that the woman was unsteady on her feet. The officer placed the woman under arrest. As the officer was escorting the woman to the squad car, she became very loud and argumentative towards the officer.

According to a New York Criminal Lawyer, the woman was brought to the Precinct Intoxicated Drivers Testing Unit (I.D.T.U.) for the purposes of performing chemical testing. The woman was immediately brought to the basement of the precinct where the breathalyzer testing is performed. Present at the testing site were the arresting officer, his partner and two other officers of the precinct. At no time were Miranda warnings given to the woman by the arresting officer.

The officer of the precinct confirmed that he was the officer responsible for administering the breathalyzer test to the woman. The officer also alleged that he has six years of experience with the I.D.T.U., and has conducted six hundred of such tests at a rate of approximately thirty per month.

Published on: March 5, 2012

Defendant Contests Accuracy of Breathalyzer in DWI Case

by Stephen Bilkis

A man filed an appeal from the decision of the first district court of Nassau County concerning its judgment of DWI and over speeding law suit.

The incident happened when a Nassau County police officer observed that the man’s traveling is at about 90 miles per hour on the Long Island Expressway. The officer confirmed that his estimate is done by a laser device and by his speedometer. A New York Criminal Lawyer said the officer stopped the man and found out that the man showed several signs of intoxication. The man admitted to having a drink and the officer administered a series of field sobriety tests, all of which the man failed. The officer arrested the man and transported him to the police department, where the man again failed a series of sobriety tests and permitted to a chemical test of the alcohol content of his blood. The test, conducted through a breath test instrument revealed a result of.11 per centum by weight.

The man wanted to bring in an expert testimony as to the range to get the concentration of alcohol in a person’s blood from the quantity of alcohol vapor detected in a breath sample. The man did not challenge the instrument’s reliability, but sought to lay the foundation for a jury argument that man’s individual ratio might differ so significantly from the mean as to diminish the verification weight to be accorded the test results. The court disallowed the evidence on ground of relevance.

Published on: March 5, 2012

Defendant Refuses to Take Chemical Test

by Stephen Bilkis

A man was arrested and was charged of Patronizing a Prostitute and Operating a Motor Vehicle While under the Influence of Alcohol or DUI which is also a misdemeanor. The accused man refused to submit to a chemical test and upon arraignment and his license was duly suspended. The accused moved for an order overturning any statements he made and any evidence of his refusal. A New York Criminal Lawyer said the hearing was ordered and was conducted before the Court. At the outset of the hearing, the specific nature of the accused man’s application was clarified. The accused moved on two grounds to overturn the evidence of the statements he made on videotape at the time he was given refusal warnings. The accused man asserted that he was arrested without credible cause and that his videotaped statements should be overturned as the fruit of his illegal arrest and its outcome. He also asserted that the same videotaped statements should also be overturned as evidence of a refusal to consent to a chemical test that was made only after inadequate refusal warnings were given.

At the hearing, the complainant presented the testimonies of the arresting officer and a police officer together with a videotape of the accused while the accused presented no evidence. The arresting officer’s testimony showed that shortly after midnight of the arrest date, the accused drove his car onto the set of an undercover police prostitution operation. A New York Criminal Lawyer said the accused approached a female undercover officer who was posing as a prostitute and offered to pay her twenty dollars in return for a sex act. The undercover officer communicated to other police officers by pre-arranged signal that an offer had been made and the other officers moved in and stopped the accused within a few seconds after his offer. A police officer approached the accused who was still seated in the driver’s seat of his car with the car engine still running. The police officer conferred briefly by a walkie-talkie with the undercover officer who confirmed that the accused had offered her money for sex. The accused smelled strongly of alcohol and appeared to be very intoxicated in that his eyes were bloodshot and he was swaying and babbling. The police officer asked the accused to step out of his car and when the car door opened the accused fell face first into the street and had to be pulled to his feet by the police. A preliminary field test was administered and the accused man’s blood alcohol content measured a great apparent evidence of intoxication. The accused was arrested for the crimes of Patronizing a Prostitute and DWI and was taken to a police station. The police did not read the accused of his Miranda rights at any subsequent time.

The police attempted to give the accused his refusal warnings and the procedure was videotaped. The accused speaks Spanish and accordingly, the police officers properly decided to give the accused his refusal warnings in Spanish. The police had a pre-recorded videotape of a woman delivering refusal warnings in Spanish on hand. The accused was videotaped as he stood side by side with the police officer and another arresting officer and watched the Spanish language videotape version of the refusal warnings being played on a television set. The room was arranged in such a way that when a viewer watches the videotape of the accused, it is not apparent that the accused is looking at a television set or where the off-screen woman’s voice delivering the refusal warnings in Spanish is coming from.

Published on: March 5, 2012

Constitutionality of DWI Check Points Challeged

by Stephen Bilkis

A vehicle was stopped at a State Police sobriety checkpoint. After allegedly displaying certain outward sign of intoxication and failing four out of five field sobriety tests, the accused was asked to give a breath sample which resulted in a reading of a .13% blood alcohol content level. The accused challenges the constitutionality of the checkpoint stop on the grounds that the State Police failed to follow their own self-established written guidelines.

A New York Criminal Lawyer said that in addition to establishing a seemingly strict protocol for the selection of sites, scheduling, briefing, setup, system of stops and interview procedures, the written guidelines of the State Police call for the making of certain records and reports before, during and after the date of the checkpoint. When a sobriety checkpoint is first scheduled, a DWI Program Notification message is supposed to be transmitted to Assistant Deputy Superintendent using a prescribed format. The memorandum is essentially a list of particulars pertaining to the planned checkpoint, including time and location, enforcement personnel and system of stop of every vehicle, every third vehicle, and so on. During the checkpoint, the DWI Investigative Note Card should be used to record pertinent impairment information including the officer’s observations, the motorist’s responses to specific questions and the specific cues, or signs of impairment observed during field sobriety tests. No later than two business days following completion of the checkpoint, a DWI Program Activity Record is required to be received at a Division Traffic Services. The record appears to be a data collection tool containing useful post-checkpoint information such as the number of vehicles passing through the checkpoint, the number of vehicles stopped and the number of motorists arrested for DUI and DWI.

While the guidelines do not specifically mandate the use of the DWI Investigative Note Card, the guidelines speak in more absolute terms about the DWI Program Notification and DWI Program Activity Record. A New York Criminal Lawyer said the guidelines provide that it is imperative that the reports be completed in a timely and accurate manner. The documents are further described as legal records that are often referenced in both criminal and civil proceedings. The parties’ submissions agree that none of the above-described documents was ever prepared, let alone transmitted to the appropriate official or division of the State Police. Thus, the stage is set for the court to consider the legal consequences of an admitted failure to strictly or substantially observe sobriety checkpoint guidelines.

Published on: February 29, 2012

Probable Cause Questioned in DWI Case

by Stephen Bilkis

The defendant was charged with violation of traffic laws because he was driving while under the influence of alcohol. The court conducted a hearing to determine if the defendant’s three separate statements have any legal implication.

In this DWI case, there are three different statements being deliberated. In the first statement of the defendant, she had said that she had a fight with a male friend since she was too intoxicated to driver her vehicle. The statement also indicated that she had 2 drinks. The second statement was allegedly given by the defendant after she was arrested by the police. In that second statement, she claimed that she only took one drink at her friend’s house and was heading to another destination. The third statement said that the defendant had three drinks and was about to go to her friend’s house.

A New York Criminal Lawyer said that the three statements are obviously in conflict with one another. The only witness to this case was the police officer who arrested the defendant. According to the officer’s statement, he and his partner were patrolling their usual route. The officers received a radio call and proceeded to respond to a dispute between drivers on the road. They went to the location of the dispute. When the police officers had arrived at the scene, the lead officer noticed the three people who seemed to be arguing. The woman, who was also the driver of the vehicle, was identified as the defendant.

Published on: February 29, 2012

Court Rules on Evidence Submitted in DWI Case

by Stephen Bilkis

The defendant faces charges of DWI or driving while intoxicated. The defendant is also charged with violating traffic laws. According to the arresting officer, the defendant failed to maintain driving within the correct lane. A hearing was held in court to determine if the evidence against the defendant had been illegally obtained. The court was tasked to decide on the validity of the evidence in court. The alleged evidence includes the statements made by the defendant and his refusal to take a chemical test.

The witness on this case was the police officer who had arrested the defendant. The police officer had 20 years’ worth of experience working in law enforcement. Through the years, the officer had made several arrests involving drinking while intoxicated charges.

A New York Criminal Lawyer said that according to the statement of the police officer, he was patrolling the highway during the night when he came across the defendant’s car. The officer observed that the driver of the car was driving at a high speed. The police officer followed the car in order to get closer. As the driver of the car made the turn, the police officer noted that he ran past two stop signs and went over the yellow lines.

Published on: February 28, 2012

Court Decides DWI Case Where Weapons Were Involved

by Stephen Bilkis

The respondent in this case had a license to carry firearms. The same license was suspended by order of the court. All guns owned by the respondent were to be turned over to the sheriff’s department pending the hearing of the case. The permit to carry firearms was reinstated after the proceeding of a DWI charge.

The court was tasked to determine the circumstances leading to the arrest of the respondent. According to the witness who was also the arresting officer, he arrived at the house of the respondent as back up. The officer had responded to a call made on the emergency hotline involving a dispute between a husband and wife. When the officer spoke to the husband and also the respondent in this case, the respondent said that it was his wife’s fault. The respondent claimed that his wife assaulted him. He did not do anything to his wife. The officer noted the behaviour of the respondent as uncooperative. The respondent kept on telling the officer to get out of the house.

A New York Criminal Lawyer said that the officer also noted that respondent showed signs of intoxication. The officer arrested the respondent for his disorderly behaviour. During the investigation of the police regarding the dispute, the respondent kept on harassing his wife and the officers present. Upon arrest, the respondent was brought to the court to be arraigned. The respondent continued to be in an unruly mood while inside the premises of the court. The charge at this point was changed to obstruction. At the request of the respondent’s wife, the court granted an order of protection. The officer imposed the order by seizing the guns of the respondent.

Published on: February 27, 2012

Defendant Appeals DWI Charge for Lack of Sufficient Evidence

by Stephen Bilkis

The defendant has filed an appeal for his conviction. The court found the defendant guilty of DWI. He was also found guilty of violating traffic rules and regulations. The defendant reportedly failed to stick to the right side of the road while driving and went over a hazard marking.

The court finds the defendant guilty of the DWI after he went off the rural road while driving and as a result, his car hit the telephone pole. The defendant allegedly left the scene without reporting the incident to authorities. After his trial by jury, the court sentenced him to 1 to 3 years of imprisonment. The defendant has filed a motion for appeal.

A New York Criminal Lawyer said that the defendant asserted in his appeal that the proof of his intoxication while driving should be declared as legally insufficient. According to his statement, the defendant claimed that he did not become intoxicated until after his accident involving the telephone pole.