New York

Published on: April 24, 2013

Plaintiff Moves for Summary Judgment in DWI Case

by Stephen Bilkis

The Plaintiff moves pursuant to CPLR §3212 for an order granting summary judgment as to the issue of the liability on behalf of the Defendant, The Dizzy Lizard, Inc., and directing an assessment of damages to be determined by a jury.

A New York DWI Lawyer said in this criminal action, the Plaintiff was injured in a motor vehicle accident, while he was a passenger in the automobile operated by the defendant, and owned by the co-defendant. Said accident occurred at approximately 1:45 a.m. when the vehicle collided with a train overpass. On the date of the accident, both parties were each 18 years of age. The defendant was arrested and charged with DWI in violation of Vehicle and Traffic Law § 1192.3. Prior to the subject accident, the Defendant was a patron of a tavern located somewhere in New York. As a result of the injuries sustained, the Plaintiff commenced the underlying action against individual defendants, based upon negligence and against the defendant tavern, predicated upon General Obligations Law§§ 11-100 and 11-101. The Plaintiff s instant application seeking summary judgment as to the liability of the defendant tavern thereafter ensued and is determined as set forth hereinafter.

A New York DWI Lawyer said in support of the within application, a New York Drunk Driving Lawyer said that that the record herein conclusively demonstrates that defendant was intoxicated at the time of the accident and that said intoxication was the direct result of the several hours he spent drinking at the tavern. In so arguing, counsel makes particular reference to the annexed police report, which states that defendant was charged with DWI at the time of the accident. Counsel additionally provides various pleadings attendant to a Federal Court action commenced against the tavern by an Insurance, which issued a series of liquor liability insurance policies to the Defendant. The Insurance Company sought rescission of three such policies based upon the tavern’s alleged misrepresentations in the applications for the insurance coverage. Counsel further points to several building violations, in connection to which tavern plead guilty to reduced charges, as well as to pleadings relating to other prior incidents involving the tavern, but which are not related to the within.

Published on: April 23, 2013

Defendant Claims Rights to Due Process Violated in DWI case

by Stephen Bilkis

The defendant was indicted for operating a motor vehicle while under the influence of alcohol, in violation of Vehicle and Traffic Law § 1192 (2) and (3), and vehicular assault in the second degree, in violation of Penal Law § 120.03 (1). A New York Criminal Lawyer said that, in his pretrial omnibus motion, the defendant moved, inter alia, to suppress the results of a blood alcohol test, which the trial court granted to the extent of conducting a joint Dunaway/Huntley hearing.

A New York DWI Lawyer said that, at that hearing, the People adduced the following evidence. On July 28, 2006, at approximately 4:00 A.M., in the City of Poughkeepsie, the defendant drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer. The Officer who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007. Immediately after the accident, the Patrol Officer observed the defendant, who was still seated in the driver seat of his pickup truck, detected alcohol on his breath, and saw that his eyes were glassy and bloodshot. The defendant told the Patrol Officer that he had consumed one half of a beer and was on his way to a bar when the accident occurred. Because the defendant complained of possible head injuries, no field sobriety test was conducted. The Patrol Officer could not determine at that time whether the defendant was intoxicated. When the ambulance arrived, the defendant exited the truck without assistance and was transported by ambulance to Vassar Brothers Hospital.

A New York DWI Lawyer said the County Deputy Sheriff arrived at the hospital, where the Patrol Officer briefed him on the circumstances of the accident, his observations of the defendant at the scene, and the defendant’s statement to him at the scene that he had consumed one half of a beer earlier that night. Approximately 20 minutes later, at 5:04 A.M., the Deputy Sheriff administered a prescreening test called an Alco-Sensor, which indicated the presence of alcohol in the defendant’s system. Based upon his observations, training, and experience, the Deputy Sheriff was by then of the opinion that the defendant was under the influence of alcohol. At approximately 6:01 A.M., the Deputy Sheriff placed the defendant under arrest and read him his (DWI) driving while intoxicated warnings, which the defendant indicated he understood.

Published on: April 22, 2013

Defendant Moves to Supress Evidence in Vehicular Manslaughter Case

by Stephen Bilkis

The Facts of the Case:

On around 18 to 19 of October 2007, at around midnight, the defendant went to a nightclub with his girlfriend “A”, a friend of his girlfriend “B”, and another individual “C”. A New York Criminal Lawyer said after drinking alcohol at the nightclub, the defendant and “C” left and went to a nearby parking lot. According to “B”, defendant did not appear intoxicated at that time; that defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant then went into the trunk of his car and searched for something. Thereafter, the defendant began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered B to leave with his girlfriend. B did and drove the defendant’s girlfriend home. The defendant and C then entered the defendant’s vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot. At approximately 3:30 A.M., the defendant’s vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant’s vehicle traveled in the wrong direction, from about exit 19 to exit 13, a distance of approximately five miles. According to a witness, the defendant was driving directly at him while changing lanes; that he had to immediately pull his vehicle onto the shoulder to avoid a collision; that the defendant continued driving the wrong way; that he observed the other vehicles on the parkway split apart in order to get away from the defendant; that the defendant was steadily going, not braking.

Another witness, a Police Sergeant, was also driving in the proper direction in the left eastbound lane of the parkway. According to the Sergeant, as he passed exit 14, he observed the defendant’s vehicle driving towards him at a high rate of speed which caused him to violently turn his steering wheel to the right to avoid a collision; that the defendant’s car came within inches of the Sergeant’s vehicle; that the defendant made absolutely no effort to get out of the way. Near exit 13, the defendant’s vehicle, without ever having slowed down, collided with the victim’s vehicle, killing the victim instantly and incinerating the victim’s vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. The police then arrested defendant, and following his arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%. When the defendant was arrested, he was then removed from his vehicle, and the police thereafter began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant’s vehicle matched the shell casings found in the parking lot near the nightclub.

Published on: April 12, 2013

Court Discusses Leandra’s Law

by Stephen Bilkis

The Facts of the Case:

On 18 November 2009, the State enacted Leandra’s Law, roughly one month after the DWI death of an 11-year-old in New York City. It demands, inter alia, that all first-time, misdemeanor DWI offenders install ignition interlock devices in every automobile they own or operate for at least 6 months; barring indigency, that offenders pay for installation and maintenance of the interlocks. However, Leandra’s Law exhibits numerous defects which put its constitutionality in question.

Meanwhile, a defendant pled guilty to driving while intoxicated or drunk driving pursuant to the Vehicle and Traffic Law. Following Leandra’s Law, New York’s newest anti-DWI measure, the matter is now before the Court for sentencing under it.

Published on: April 11, 2013

Defendant Claims Insufficient Evidence for an Indictment

by Stephen Bilkis

A man moved for an examination of the stenographic minutes from a grand jury proceeding for the purpose of determining whether the evidence was legally sufficient to support the charge contained in the indictment and whether the legal instructions given to the grand jury were sufficient. He also seeks dismissal of the charges on the grounds of insufficiency of the evidence or for other defects in the proceedings.

The man stands charged with driving while intoxicated (DWI), a class E felony. Based on records, the felony status of the crime is based on a predicate conviction for driving a motor vehicle with in the violation of vehicle and traffic law, an unclassified misdemeanor.

The incident occurred one evening where a state officer’s attention was drawn to the man’s automobile because it was moving slowly. He estimated that the driver of the vehicle was driving about 25 miles per hour in a 30-mile per hour zone during the late evening when no traffic was present and the roads were clear and dry. The officer followed the vehicle and testified that the man was going about 20 miles per hour in the 30-mile per hour zone. At some point he verified the speed of the vehicle using radar. A New York Criminal Lawyer said the man consistently maintained the same speed up hill and downhill, including a steep hill, until he pulled over at the direction of the officer. He also testified that the man was driving on the right-hand side of the road. The man further testified that he pulled him over solely because of his driving. He also testified in saying that driving ten miles per hour below the limit is considered impeding traffic. The district attorney however did not reprimand the grand jury on the witness in advising on the law.

Published on: April 8, 2013

Defendant Questions Validity of Breathalyzer Test

by Stephen Bilkis

On September 15, 1983, a DWI roadblock, indicated by signs, was set up by a uniformed police unit at the westbound 181st Street Bridge. All vehicles proceeding through the roadblock were stopped. Each driver was then approached and asked how they felt. The vehicle operated by the defendant was driven into this initial area in a normal manner and was stopped solely in accordance with the questioning procedure. The Police Officer, while asking the defendant how he felt, made several observations. He noticed that the defendant’s eyes were watery, his speech was slurred, and he had the odor of alcohol on his breath.

A New York Criminal Lawyer said that, the defendant was then directed to drive his vehicle to the safety zone a few feet away. The Police Officer ordered the defendant out of his car and gave him a field sobriety test. Based on the defendant’s performance and his statement that he had consumed eight beers, the defendant was then placed under arrest and transported to a highway unit precinct. On the way to the precinct Police Officer gave the defendant his Miranda warnings. Upon arriving at the highway unit precinct, the defendant was again advised of his constitutional rights, whereupon he repeated his statements as to his alcohol consumption. He voluntarily consented to taking a breathalyzer test. The results indicated a reading of .12 percent blood alcohol.

A Long Island Criminal Lawyer said that, the defendant moves to dismiss the charge based on the alleged unconstitutionality of the roadblock and also moves to suppress the breathalyzer test results as well as expected testimony relating to coordination tests administered to him as being obtained in violation of his rights under the State and Federal Constitution. A hearing on this motion was held on March 8, 1984 and continued on March 12, 1984. The defendant now stands charged with violating VTL 1192(2) and 1192(3). He thus makes the instant motion.

Published on: April 7, 2013

Court Discusses Legal Doctrine of Collateral Estoppel

by Stephen Bilkis

Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on January 18, 1982. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. A Bronx DWI Lawyer said that, in December 2001, the Departmental Disciplinary Committee (Committee) served respondent with a notice and statement of charges alleging 28 counts of professional misconduct against him involving seven separate legal matters. The charges alleged that respondent engaged in a pattern of misconduct including the repeated disregard of court orders and directives; misrepresentations to clients, adversaries and courts; and the repeated neglect of client matters, often resulting in default judgments. By order entered November 28, 2001, this Court appointed a Referee to hear and report on the charges. Respondent filed an answer with affirmative defenses in January 2002.

A New York Criminal Lawyer said that, prior to the hearing, the Committee made a motion before the Referee requesting that the doctrine of collateral estoppel be applied to find respondent guilty of 11 of the 28 counts charged, based upon the findings and decisions issued by four courts. Respondent opposed the motion, and by decision dated November 1, 2002, the Referee granted the collateral estoppel motion on six of the 11 counts requested. Following 23 days of liability hearings on the remaining counts, the Referee issued a February 18, 2003 report sustaining 12 other counts and dismissing 13 counts. Three days of sanction hearings were held, with the Committee recommending disbarment and respondent, citing various mitigating factors, arguing for a public censure. In a final report dated May 5, 2003, the Referee recommended a five-year suspension. A Hearing Panel was convened, and it heard oral argument and accepted written submissions from both parties. In a written determination dated March 2, 2004, the Hearing Panel affirmed the Referee’s findings of fact and conclusions of law, except as to count 3, which it disaffirmed, and it further affirmed the Referee’s recommended sanction of a five-year suspension.

A Brooklyn Criminal Lawyer said that, the Committee now moves for an order pursuant to 22 NYCRR 603.4 (d), confirming the Referee’s findings of fact and conclusions of law, as modified by the Hearing Panel’s recommendation, and imposing a sanction suspending respondent from the practice of law for a period not less than five years. A review of the five matters in which charges were sustained follows.

Published on: April 5, 2013

Defendant Contends Breathalyzer Test was Impropr

by Stephen Bilkis

On May 6, 1995 at approximately 1:30 AM, a police officer was assigned to a so called DWI checkpoint in Queens County. A New York Criminal Lawyer said that pursuant to the procedures established for this checkpoint, every vehicle was stopped and every driver was asked if he or she had been drinking. If the driver answered affirmatively, he or she was asked to submit to an alcohol-sensor field sobriety test. At about 1:30 AM, the accused man entered the checkpoint area and in response to the officer’s question indicated that he had been drinking. At this time, the accused exhibited the classic signs of intoxication, slurred speech, bloodshot watery eyes, an odor of alcohol and unsteadiness on his feet. The accused agreed to submit to an alcohol-sensor test and the results indicated a blood alcohol content of 0.15 of one percent. This test was re-administered to the accused approximately nine minutes later with identical results and he was then arrested and taken to the 114th Precinct where pedigree information in connection with the arrest was taken. While en route to the precinct, the accused asked the officer what was going to happen. The officer told the accused man that he would be given a breathalyzer test and that if his blood alcohol content registered 0.06 of one percent or less, that he would be released; that if he refused to submit to the breathalyzer test that his license would be revoked; that if he took the breathalyzer test and his blood alcohol content registered 0.10 of one percent or greater, that his license would be suspended. A similar exchange of information between the officer and the accused man took place at approximately 4:15 AM, immediately before the accused man took the breathalyzer test. Thereafter, the accused was transported to the Intoxicated Driver Testing Unit at the precinct. It was here that the officer advised the accused of his Miranda rights prior to questioning him from the IDTU questionnaire. Each and every Miranda warning was given and acknowledged by the accused who voluntarily agreed to answer questions.

A Manhattan Criminal Lawyer said that at some point after the IDTU questionnaire was completed by the officer, the accused was asked if he would submit to a breathalyzer test. Once again, the three alternatives described above were stated to the accused by the officer. The accused, without any apparent hesitation or protest, took the breathalyzer test at 4:15 AM. The results showed 0.09 of 1% of alcohol in the blood. The complainant concedes that the breathalyzer examination was administered more than two hours from the accused man’s arrest. The complainant concedes that notice of this statement was never provided to the defense counsel pursuant to CPL (Criminal Procedure Law).

Accordingly, the stop of the accused was proper. The officer request that the accused submit to an alcohol-sensor test was proper in view of the accused man’s response to the officer’s preliminary inquiry. The alcohol-sensor results provided probable cause to arrest the accused man of DWI.

Published on: April 1, 2013

Court Discusses Excessive Fines Clause in DUI Case

by Stephen Bilkis

On February 20, 1999, respondent Police Commissioner announced that the City would apply the Property Clerk Forfeiture Law (Administrative Code of City of NY § 14-140) to vehicles operated by individuals arrested for driving while intoxicated (DWI). At 10:30 P.M. on February 21, 1999, police stopped and arrested petitioner for DWI. A New York Criminal Lawyer said that, the arresting officer concluded that petitioner was intoxicated based on the strong smell of alcohol, watery and bloodshot eyes, and coordination tests. A breathalyzer test indicated .11% blood alcohol content, over the .10% intoxication threshold. Officers took petitioner’s 1988 Acura for forfeiture. By letter of February 26, 1999, petitioner’s attorneys demanded its return.

A Bronx Criminal Lawyer said that, by order to show cause and petition dated March 9, 1999, petitioner commenced this proceeding. Petitioner seeks a final judgment invalidating the City’s policy and the taking and retention of his car. On March 19, 1999, Property Clerk commenced a separate action against petitioner for a judgment declaring the vehicle forfeited as the instrumentality of the crime of driving while intoxicated. The criminal action is pending.

A Bronx DWI Lawyer said that, petitioner challenges the City policy as statutorily unauthorized and preempted by State law. Petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough.

Published on: March 31, 2013

Court Decides Legality of DUI Checkpoint

by Stephen Bilkis

Police officers were given instructions by their sergeant to set up a DWI checkpoint on June 10, 1993 at the corner of 20th Street and Avenue C in Manhattan. At that checkpoint, all passing cars were stopped by the police officer manning the checkpoint. Depending on his observations of the driver of the car stopped at the checkpoint, the police officer would ask the driver to pull over to the side of the road so that the driver can be further questioned by the police.

When the defendant driver came up to the checkpoint, a police officer asked him to stop and to roll down his window. The police officer smelled alcohol on the breath of the driver as soon as he rolled down his window. A New York Criminal Lawyer said the police officer asked the driver to pull over to the side of the road. He then asked the man to exit his vehicle. The accused driver then admitted to the police officer that he had been drinking. The police officer then administered the alcohol breathalyzer test on the accused driver and his blood alcohol level registered at .14. When the results of the breathalyzer test came out, the police officer then arrested the man.

At his arraignment, the driver asked for a hearing to determine whether the police officers had probable cause to stop his vehicle; whether or not the checkpoint was not arbitrary; and whether or not the oral admission made by the accused and the breath test result should be suppressed.