DWI / DUI

Published on: June 10, 2013

Reckless driving causes accident

by Stephen Bilkis

This matter comes on by appeal of defendant-appellant from a jury verdict in the Town of Bethel Justice Court finding him guilty of driving while intoxicated (DWI) and unsafe lane change.

Defendant argues that his retained counsel was ineffective in representing him from the outset of the case, through discovery and motion practice and throughout the jury trial.

Defendant was arrested by New York State Troopers on January 29, 2005 in the Town of Bethel, County of Sullivan, State of New York .Defendant was charged with DWI for violation of Vehicle and Traffic Law and unsafe lane change.

Published on: June 8, 2013

Fines are found to be excessive

by Stephen Bilkis

A Defense Lawyer said that, that on February 4, 1982 on Upper Falls Boulevard, Rochester, New York, defendant a 28 year old housewife operated a vehicle while under the influence of alcohol. Her breathalyzer test was .24 of 1 per cent of blood alcohol. On the previous day, she had received final divorce papers from her husband of the past eleven years. Defendant said that she had been drinking heavily throughout the nighttime. About six o’clock in the morning a minor accident, causing no discernable property damage or personal injury precipitated her arrest. No prior alcohol history exists, and it is her first such charge.

A reporter said that, the attendant circumstances operate only in mitigation of sentence and punishment rather than as a defense to the charge, or in exoneration of guilt. Therefore, these circumstances would, ordinarily, influence her at this time in the manner in which I might impose sentence, including any fine. On March 11, 1982 the defendant pleaded guilty to a violation of subdivision 3 of § 1192 of the Vehicle and Traffic Law–Operating a Motor Vehicle while under the Influence of Alcohol. This Court must now impose sentence under subdivision 5 of § 1192 as amended by the Laws of 1981, c. 910.

The issue in this case is whether defendant can be held liable for DWI.

Published on: June 3, 2013

Officer is proven to be justified

by Stephen Bilkis

The defendant, is charged with two counts of (DWI) Driving While Intoxicated in violation of VTL §1192 (2), (3), and Speeding in violation of VTL §1180(d). A pre-trial hearing was ordered to determine defendant’s motion to suppress. On March 23, 2006, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements. The sole witness at the hearing was the Trooper of the New York State Police who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

A New York Defense Lawyer said that, the defendant was not given an Alco-Sensor or breathalyzer test screening test for the presence or absence of alcohol on his breath. After the four field sobriety tests were administered, the Trooper placed the defendant under arrest for Driving While Intoxicated. He believed defendant was intoxicated based upon his personal and professional experience. He has observed many persons, both professionally and socially, who have consumed alcohol and became intoxicated. He has also observed people who drank alcohol and did not become intoxicated. As a state trooper since May, 1999, the Trooper had personally made 75-100 arrests for Driving While Intoxicated, and had been present at the scene to observe and/or assist in nearly another 100 arrests for Driving While Intoxicated, for a total of 175-200 DWI arrests as an arresting officer or direct observer. He had successfully completed all courses at the State Police Academy for Detecting DWI Drivers, and the recognition of sobriety or intoxication in drivers. The courses amounted to between 40 and 80 hours of required course work.

A rep said that the Trooper arrested defendant for Driving While Intoxicated based upon his cumulative performance on all the field sobriety tests, not for his performance on any specific test. It was also based on the odor of alcohol on his breath, his glassy, watery, bloodshot eyes, and his admission of drinking “a few” or “two” beers as an underage drinker.

Published on: June 2, 2013

Smithtown accident causes personal injury

by Stephen Bilkis

This is an action for damages for personal injuries allegedly sustained by the plaintiffs, arising out of a motor vehicle accident which occurred on August 11, 2005 on Route 25 A, Town of Smithtown, County of Suffolk, State of New York, when their vehicle and the other vehicle came into contact when the operator allegedly crossed over a double yellow line and struck the plaintiffs vehicle. Plaintiff was a passenger in the vehicle operated by the other plaintiff, but to date, has not claimed any personal injury arising out of the accident in her bill of particulars, but appears instead to be asserting a derivative claim. A Lawyer said that, the main action was commenced against defendant, a bar located at 15 East Main Street, Smithtown, New York, wherein it is claimed that employees of the bar served alcoholic beverages to the operator of the other vehicle, the third-party defendant in violation of Section 65 of the Alcoholic Beverage Control Law and Section 11-101 of the General Obligation Law of the State of New York. Defendant thereafter commenced a third-party action against the operator of the other vehicle seeking indemnification and contribution.

A report said that, defendant now moves pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint, or in the alternative, pursuant to CPLR 3211 for an order dismissing the complaint for failure to state a cause of action. Defendant claims that it did not violate the Dram Shop Act or Section 65 of the Alcoholic Beverage Control Law and cannot be held liable to the plaintiffs for their injuries.

The issue in this case is whether there is no cause of action in the complaint despite the operator being held liable for DWI.

Published on: June 1, 2013

Woman was upset at the death of her husband

by Stephen Bilkis

The material facts are not in dispute. On April 9, 2009, at about 2:36 A.M., the Defendant was stopped in her vehicle by Monroe County Sheriff’s Sergeant on Route 390 South, north of Jefferson Road, in the Town of Henrietta, County of Monroe, State of New York. The Defendant spoke with the Sergeant and was interviewed by another officer, Deputy Sheriff. The Deputy administered five (5) sobriety tests, all of which the Defendant reportedly failed. A DWI Lawyer said that, the Deputy then arrested the Defendant and transported her to B Zone, where she was observed and administered a breathalyzer test. The breathalyzer test allegedly showed the Defendant’s Blood Alcohol Content to be .17% B.A.C. The Deputy proceeded to read the Defendant her Miranda rights. The Defendant waived those rights and agreed to answer the Deputy’s questions. As set forth in the Deputy’s Alcohol Influence Report, the Defendant allegedly made several statements that she was highly upset about the death of her late husband.

A New York Criminal Lawyer said, the Sergeant charged the Defendant with a violation of New York State Vehicle and Traffic Law §1180(d). The Deputy charged the Defendant with violations of New York State Vehicle and Traffic Law §1192(2) (DWI) (Driving While Intoxicated, per se), and Vehicle and Traffic Law §1192(3) Driving While Intoxicated.

A Defense Lawyer said that, by Notice of Motion dated October 8, 2009, the Defendant moved to dismiss the charges in furtherance of justice pursuant to New York State Criminal Procedure Law §170.30(1)(g) and §170.40. The People submitted the written response of the Assistant District Attorney, dated October 18, 2009, in opposition to the Defendant’s motion. Both parties waived a hearing on the matter. In support of the Defendant’s motion, it is alleged that the Defendant had endured life shattering events in the months leading up to her arrest on April 9, 2009. Those events allegedly led the Defendant to self-medicate and to behave in a fashion that was “the antithesis of her normal behavior prior to said events.”

Published on: May 31, 2013

Offender was previously convicted

by Stephen Bilkis

The first count of an indictment filed July 16, 1998 charges defendant with DWI in violation of Vehicle and Traffic Law § 1192 (3). The special information filed in connection with the indictment accuses defendant of having been previously convicted of DWI in Macedon Town Court, Wayne County, on February 4, 1997 and in St. Lawrence County on February 23, 1998. A New York DWI Lawyer said that, by virtue of the accusation that defendant had been convicted of DWI twice within the preceding 10 years, the first count of the indictment charged defendant with DWI as a class D felony.

A Defense Lawyer said that, defendant moved for dismissal or reduction of the first count of the indictment. In response to the motion, the People produced the Grand Jury minutes and the exhibits used to establish defendant’s two prior convictions before the Grand Jury. Grand Jury exhibit No. 1, a certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, certifies that defendant was convicted of DWI in that court on February 4, 1997. Grand Jury exhibit No. 2, a DMV abstract, indicates that defendant was convicted of DWI in St. Lawrence County on February 23, 1998. More precisely, the DMV abstract identifies the conviction as “DRVG INTOX PI ACC”. There is no mention of the section defendant was convicted of violating or the court where the conviction was entered. The seal of the State of New York is printed on each page of the abstract, and each page also contains the following statement: “This is to certify that this document is a true and complete copy of an electronic record on file in the New York State Department of Motor Vehicles, Albany, New York.”

A Criminal Lawyer said that, the Supreme Court granted defendant’s motion in part by reducing the DWI charge under the first count of the indictment from a class D felony. The court concluded that the certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, was legally sufficient to establish that defendant had been convicted of DWI once within the preceding 10 years. The court further concluded, however, that the evidence before the Grand Jury was not legally sufficient to establish that defendant was convicted of DWI twice within the preceding 10 years because the DMV abstract did not constitute competent and admissible evidence of the alleged St. Lawrence County conviction. More specifically, the court concluded that the certification on the abstract did not qualify as certification of a business record or a public record. The People appeal from the order insofar as it reduces the severity of the charge under the first count of the indictment.

Published on: May 30, 2013

Sergeant selects the spot of checkpoint

by Stephen Bilkis

The defendant was charged with common-law (DWI) driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) on September 14, 2002 at 12:48 a.m. A New York DWI Lawyer said that, the defendant was arrested after entering a sobriety checkpoint operated by the Webster Police Department on the eastbound section of New York State Route 104 just prior to the Dewitt Road overpass. A Scott hearing was conducted on June 18, 2003 to determine if the sobriety checkpoint was properly conducted.

A New York Criminal Lawyer said that, a 1984 case, established the standards for conducting sobriety checkpoints in the State of New York. More particularly the defense argues that the location of the sobriety checkpoint was not properly selected. In his memorandum of law defense counsel states that “Sergeant small testified that although the police Chief authorized the checkpoint, there was no discussion between himself and the police Chief as to exactly where the checkpoint would be placed. That was left to the unfettered discretion of Sergeant small as supervisor of the checkpoint detail. Sergeant small allegedly selected the location according to the Directive based upon the history of past violations, as well as safety considerations.”

The issues in this case are whether the location of a sobriety checkpoint is based on empirical evidence of prior (DWI) driving while intoxicated arrests; and whether the location of a sobriety checkpoint be specifically authorized by the chief of police.

Published on: May 29, 2013

Felony charged in DWI case

by Stephen Bilkis

On October 16, 2004, in the Town of Ashford, defendant was arrested for DWI and Failure to Keep Right. When a DMV check showed a previous conviction, a felony complaint was filed charging the DWI as a felony. Defendant was arraigned and the case was adjourned to November 18, 2004 for defendant to appear with counsel. A DWI Lawyer said that, on or about October 29, 2004, defendant retained an attorney. Counsel, on that date, filed with the court a notice of appearance and a demand for all the paperwork and sent a copy to the assistant district attorney that handles Ashford Town Court. Thereafter, after speaking with the court clerk, counsel faxed the court a letter, again with a copy to the assistant district attorney, waiving a preliminary hearing. A hard copy was also sent to both the assistant district attorney and the court. On April 21, 2005, Town Court forwarded the paperwork to County Court. Why the case was not forwarded to County Court for five months is not addressed in the papers.

A Criminal Lawyer said that, defense counsel waived 30.30 time until June 20, 2005 in an attempt to negotiate a plea. On June 15, 2005, counsel wrote the District Attorney revoking the remaining time on the 30.30 waiver because his client had rejected the plea offer. On July 21, 2005, the District Attorney sent defense counsel a copy of the indictment and the statement of readiness and notified him that arraignment was scheduled for August 1, 2005. Defendant was arraigned on that date and the case has proceeded from that point with motions and the appointment of a special prosecutor when the District Attorney’s office discovered a conflict. However, on November 4, 2005, a scheduled hearing was postponed until November 10, 2005 because the special prosecutor failed to appear.

The issue in this case is whether defendant’s right to speedy trial has been violated.

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.