Articles Posted in DWI / DUI

On December 7, 1988, the Court issued a subpoena duces tecum directing the New York State Police to produce a State Police Breath Test Operator’s Training Course Manual and specifically that edition which was used to train a Trooper who was first certified as a breathalyzer test operator on February 5, 1988 and who was the arresting officer in the criminal case referred to above which was a trial of the respondent on Driving While Intoxicated (DWI) charges.

The respondent, Superintendent of the Division of State Police, contends that the subpoena duces tecum may only be used to obtain material which is discoverable under Article 240 Criminal Procedure Law (CPL), but not possessed by the prosecutor, or which constitutes evidence, and that the manual in question is not evidence and not discoverable pursuant to CPL.

The Court cannot agree with the contentions of the petitioner. The manual in question is a specific set of instructions and procedures for the proper performance of chemical and psychophysical tests. It constitutes the most comprehensive evidence in regard to State Police procedure for the arrest and testing of DWI defendants. It is certainly direct evidence of both the procedures that should be followed as well as the consequences of not following those procedures. In the case at hand, the issue is whether the defendant was intoxicated, and the use of the subpoena duces tecum for the purpose of obtaining material evidence of that fact is proper, in the Court’s opinion. The defendant is entitled to access to the manual by the subpoena duces tecum for the purpose of proving what the proper procedures in testing were and that his accusers failed to follow those procedures, if that be the case.

On January 26, 2011, a man was charged with five criminal counts including, driving while intoxicated (count one), resisting arrest (count two), harassment in the second degree (count three), parking upon pavement (count four), and possession of open containers in a motor vehicle (count five). He moved for suppression of all statements made to a law enforcement officer and suppression of the arrest and all evidence seized pursuant to that arrest. The Court thereafter, conducted a joint Huntley and Probable Cause suppression hearing.

The credible and believable testimony at said hearing established that on December 4, 2011, around 1:00 in the morning, City Department of Environmental Protection (DEP) Police Officers were concluding a security check. While finishing their security check, the two officers observed a slow-moving vehicle traveling on Hasbrouck Road toward the intersection of Hasbrouck Road and State Route 55. The area is rural and unlighted. The vehicle traveled and stopped between four to six times before reaching the stop sign.

Thereafter, the vehicle made a legal right-hand turn. It continued in the same stop and start manner before pulling over to the side of the road. Both officers testified that the defendant did not violate any vehicle and traffic laws and they had no police investigative reason to stop or approach the vehicle or make an arrest.

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The defendant was arrested and charged with Common Law Driving While Intoxicated and Failure to Produce License, on October 30, 2005 at 8:43 A.M. Later that morning he was arraigned and judge suspended the defendant’s driver’s license for failure to submit to the breathalyzer test. Finally, the court set bail in the amount of $2,500.00 cash or bond. The matter was eventually set down for a Probable Cause hearing on January 27, 2006.

The People called the arresting Webster Police Officer as the their only witness for said hearing. The officer testified that on October 30, 2005, at approximately 8:43 A.M. while he was on routine patrol, he received a 911 call to respond to a man slumped over the wheel of his car, which was located in the ESL parking lot on Ridge Road in the Town of Webster. Upon his arrival he observed a blue minivan, which was not in a designated parking spot.

The minivan was facing east and apparently in the middle of the parking lot. The defendant’s vehicle was surrounded by a number of individuals. Upon approaching the vehicle, the officer observed that the defendant, who appeared to be asleep was behind the wheel. As a result, the officer opened the driver’s door and vigorously shook the defendant. Officer Burns was able to detect that the defendant had a pulse and was breathing. The defendant then began to mumble something to the officer. The officer again shook the defendant and inquired as to whether the defendant had any relevant medical issues. This time the defendant stated that he was fine and was coming from a friend’s house. The officer asked him if he was diabetic or epileptic.

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One day, a DWI roadblock, indicated by signs, was set up by a uniformed police unit. 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 in unit, 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 Lawyer said that, the defendant was then directed to drive his vehicle to the safety zone a few feet away. Thereafter, 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 the defendant was given 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. The defendant was charged with violating VTL 1192(2) and 1192(3). A DWI Defense Attorney 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.

The issues to be resolved in this case are as follows: 1) whether the constitutional rights of motor vehicle drivers are violated by police stops at “Driving While Intoxicated Safety Check” roadblocks; 2) the effect of the field sobriety test taken by the defendant in the safety zone; and, 3) the suppression of the breathalyzer test.

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At approximately 14 minutes past midnight on March 6, 1999, Rochester Police Officer KB was on routine patrol on Lyell Avenue when he first observed a known male prostitute enter defendant’s red pickup truck which was parked in a nearby parking lot. When the vehicle exited the parking lot, Officer KB turned his patrol car around, followed the vehicle, and proceeded to run a registration check of the license plate on his multiple data terminal, whereupon he discovered an expired registration. Upon stopping the vehicle, the officer had defendant, the driver, exit his vehicle and then placed him in the backseat of the patrol car. According to Officer KB, this action was taken in order to separate the occupants while he investigated prostitution sex activity. Officer KB proceeded to conduct his prostitution investigation. In doing so, he noticed indicia of the driver’s intoxication, including bloodshot, watery eyes, mumbled and slurred speech, and flushed complexion, and he detected a strong odor of alcoholic beverage and drugs. Officer KB then had defendant exit the patrol car and perform various sobriety tests. Upon defendant’s failure of a number of these tests, the officer arrested him for driving while intoxicated (DWI). The 10 minute investigation yielded no evidence of prostitution and no charges related to prostitution were ever filed against either occupant of the vehicle. Defendant was placed under criminal arrest for the Vehicle and Traffic Law violations.

Officer KB was the sole witness called to testify at the probable cause hearing. On the basis of the testimony related above, the hearing court issued a written decision granting defendant’s motion for suppression of all evidence derived from the stop, detention and arrest on the ground that reasonable suspicion for the stop and probable cause for the arrest for DWI were lacking. In so ruling, the court determined that vehicular traffic stops must be nonpretexual and that the standard for assessing whether a stop is nonpretextual is a primary motivation test.

The charges were dismissed, on motion of defendant, after the People verified that no other evidence existed upon which to proceed with the criminal prosecution. This appeal ensued.

The accused woman appeals from a judgment convicting her, after a nonjury trial, of two counts of driving while intoxicated (DWI) as a misdemeanor and refusal to submit to a field screening test. She was arraigned in Sylvan Beach Village Court on two counts of DWI as a misdemeanor. A certified copy of her abstract of driving record from the New York State Department of Motor Vehicles (DMV abstract) indicated, however, that she was convicted of DWI in Oneida City Court in Madison County, and the complainant thus sought a felony DWI indictment from the Oneida County grand jury. By indictment filed, the accused woman was charged with two counts of DWI as a felony, and she was arraigned on that indictment. At that time, the complainant announced their readiness for trial.

Thereafter, a certificate of conviction was produced that demonstrated that the DMV abstract was erroneous, inasmuch as the August 26, 2004 conviction in Oneida City Court was not for DWI but, rather, was for driving while ability impaired. As a result, on February 26, 2008, the complainant moved to amend the indictment to reduce the two DWI charges from felonies to misdemeanors. Robbery was not included. County Court granted the motion over the accused woman’s objection. The accused woman thereafter moved to dismiss the indictment, as amended, based on the alleged violation of her statutory right to a speedy trial. According to the accused, the complainant had 90 days in which to announce their readiness for trial and failed to do so. She contended that she was originally charged with misdemeanors, that the felony indictment was based on erroneous documentation, and that, when the error was discovered, the indictment was amended by reducing the felony counts to misdemeanors, thus rendering applicable the 90-day time period rather than the six-month time period. The court properly denied the accused woman’s motion. No sex crimes were involved.

As the Court of Appeals has written, unless an event occurs which triggers the specific contingencies of Criminal Procedure Law, controls the calculation of the readiness period throughout the criminal action. Under that provision, the readiness time requirement is based on the most serious offense charged in the criminal action, measured from the date of filing of the first accusatory instrument. Here, the most serious offenses charged in this case were the two felony counts of DWI. While the documentation that the accused had a predicate DWI conviction, which formed the basis for the felony charges, was later shown to be erroneous, that does not negate the fact that the most serious offense charged in the criminal action was a felony. As a result, the complainant had six months in which to declare their readiness for trial, and they timely did so on January 4, 2008. Finally, the accused woman’s further contention that the complainant’s declaration of readiness on January 4 was rendered ineffective by the subsequent reduction of the felony counts to misdemeanors is rejected.

On July 8, 2005 at approximately 2:00 A.M., the defendant was driving northbound on State Route 78 (South Transit Road) in the Town of Lockport and was stopped by a New York State Trooper. The trooper was on routine patrol with Trooper Middlebrooks when the defendant pulled out of a local bar, and narrowly missed being broadsided by a tractor trailer truck which was proceeding in the southbound lane of South Transit Road. The trooper followed the defendant, who was operating her car in the center turn lane of the five-lane state highway. He paced her car with his speedometer and also estimated her speed at 72 mph in a posted 55 mph zone. Defendant’s car was weaving in and out of traffic and was eventually stopped for speeding and failure to keep right. Defendant responded to the lights and siren of the New York State Police car and stopped. While Richardson asked the defendant for her license and registration, he noticed a strong odor of alcohol from the car. He spoke with her and she told him she was involved in a softball game at the bar and had consumed eight beers. Her words were slurred, he noticed her eyes were watery and she had confused speech. there were no weapons invovled.

The trooper administered three field sobriety tests to determine if she was intoxicated. Those tests which were administered were the walk and turn test, one-leg stand test and alphabet recitation. The defendant was unable to complete the alphabet and stopped at the letter “o,” thus failing that test. Likewise, she was unable to do the nine-step stop and turn test, but rather took 12 steps and then walked to her car, but not in a straight line. Defendant likewise failed that test. Finally, she simply could not do the one-leg stand test. He gave her a breath screening test on site, which she failed. When the trooper advised her she was under arrest for driving while intoxicated, she became upset and distraught, so much so that she had to be handcuffed. The defendant was taken into custody and transported to the New York State Police barracks and given her breathalyzer and Miranda warnings. Defendant provided a breath test sample, which was analyzed on an Alcotest 7110MKIIIC instrument. The test was performed well within a two-hour time period and was completed at approximately 2:45 A.M. Richardson described the prescribed manner in which he gave the test, as well as his observations of the defendant. She consented to the test. The test instrument provided the readout that defendant’s blood alcohol content (B.A.C.) was at .21%.

While at the station, defendant admitted that she had consumed 18 beers, not 8. The trooper has handled over 120 DWI cases and is a certified breath test operator. He has also determined intoxication of people both on the job and socially. She was once tried for domestic violence.

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On February 16, 2004, respondent BT was arrested in the vicinity of 118th Street and Second Avenue as he exited his 2000 Lexus. He was charged with criminal felony possession of a controlled substance with intent to sell, felony possession of more than 16 ounces of marijuana, and misdemeanor possession of marijuana. The drugs were found in respondent’s car, which was seized and vouchered at the time of arrest and is the subject of a civil forfeiture proceeding. Respondent thereafter filed a timely demand with petitioner for a hearing which was held on March 8, 2004. No guns or drugs were found.

In support of its application to retain possession of respondent’s vehicle pending forfeiture, petitioner submitted respondent’s arrest report which stated he was “in possession” of marijuana and other controlled substances. It also submitted the Criminal Court complaint which stated that the arresting officer observed respondent in the vehicle in question and that the marijuana and other controlled substances were recovered from that vehicle. Documents demonstrating the value of the vehicle, respondent’s ownership thereof, and respondent’s prior criminal record were also submitted at the hearing.

Respondent testified at the hearing that at the time of his arrest, his vehicle was parked and he was arrested after he exited his vehicle.

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The defendant is charged with violating five sections of the New York State Vehicle and Traffic Law. Two of the violations—of section 1192 (2) and (3), driving while intoxicated (per se) and driving while intoxicated (common law), respectively—are unclassified misdemeanors, and are therefore crimes. The simplified traffic information charging these crimes were on their faces made returnable in Nassau County District Court, located at 99 Main Street in Hempstead. The other three violations—of section 1128 (a), section 1163 (d) and section 375 (2) (a) (1), failure to maintain a lane, illegal turn, and no headlights, respectively—are traffic infractions.

A New York Criminal Lawyer said that, the defendant appeared with counsel in District Court. Despite the fact that only two of the tickets bore a District Court address, all five violations were listed on the District Court calendar, under a single docket number. The defendant was arraigned on the instruments charging all five violations. The case was then adjourned for conference. Apparently, neither the prosecutor nor the court took cognizance of the difference in return addresses on the tickets. Following the arraignment, the defendant went over to the TVA, at Cooper Street. The three tickets charging noncriminal violations appeared on the TVA calendar. The defendant, following a conference with the TVA prosecutor, disposed of the three tickets by pleading guilty to one reduced charge, and paid a fine.

A New York DWI Defense Lawyer said that, the defendant now moves to dismiss the DWI criminal charges. The defendant argues that the three non-criminal violations have already been disposed of, and that in light of the final disposition of three charges forming part of the same criminal transaction as, and consolidated with, the two DWI criminal charges, the two DWI criminal charges are now barred from prosecution by principles of double jeopardy, and must therefore be dismissed.

The Facts of the Case:

On 11 October 1988, the petitioner was charged in the circuit court with three traffic-related offenses. One of the charges was for DUI in violation of the Florida Statutes, to wit: that any person who is convicted of a fourth or subsequent DUI violation is guilty of a felony of the third degree. However, the information filed charging the petitioner made no mention of any specific prior DUI convictions, nor did the state before trial provide the petitioner any details of the alleged prior convictions. At arraignment, petitioner moved to dismiss or to transfer the matter to the county court, contending that because the information did not inform him of what specific prior offenses he allegedly committed, the information did not adequately charge the felony, and therefore the circuit court had no jurisdiction. The circuit court denied the motion. Consequently, the jury found petitioner guilty of DUI. After denying the petitioner’s renewed motion to dismiss, the court immediately adjudicated petitioner guilty of third-degree felony DUI and sentenced him to four and one-half years’ imprisonment. Thereafter, the district court reversed on the ground that the felony prosecution in circuit court was improper because the information merely charged petitioner, in effect, with three misdemeanors. The district court expressed conflict with a prior court ruling which held that the state need not allege the prior DUI convictions in the charging document because of possible prejudice to the accused in the event the prior convictions were brought to the jury’s attention.

The Issue of the Case:

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