DWI / DUI

Published on: January 26, 2013

Court Weighs Plaintiffs Injuries Against Applicable Insurance Law

by Stephen Bilkis

A motion by the accused woman for an order awarding her summary judgment dismissing the claims of the complainant that she did not sustain a serious injury within the meaning of Insurance Law is granted.

A cross-motion by the complainant husband for an order awarding him summary judgment dismissing the accused woman’s counterclaim as defendant was solely liable for the happening of the accident is also granted.

A New York Criminal Lawyer said that viewing the evidence most favorably to the accused, it is nevertheless uncontroverted that the impact between the vehicle driven by the complainant husband and the vehicle driven by the accused woman took place while the complainant husband was stopped and waiting to cross over the double yellow lines to turn into his own driveway. Moreover, the accused woman was concededly drinking prior to the accident and was arrested for drunk driving following the accident. She also pled guilty to DWI and was traveling at approximately 20 miles per hour with her foot on the gas at the time of impact. At best, the accused struck the complainant’s vehicle without crossing over the double yellow lines into the complainant’s lane and instead struck the complainant’s stopped vehicle while both vehicles were pretty much right on the line.

Published on: January 25, 2013

Accused DWI Defendant Claims Police was Coerced to Take Breathalyzer Test

by Stephen Bilkis

A police officer was called to the scene of a traffic accident involving two vehicles. When the police officer arrived he noticed that one of the drivers who figured in the accident had slurred speech, red and watery eyes and he was unsteady on his feet.

The police officer immediately placed the driver under arrest. In the patrol car, the police officer read to the arrested drunk driver his Miranda rights. A New York DWI Lawyer said as the police officer was driving his car to the precinct to complete the driver’s paperwork, the driver asked the police officer if he was not going to issue him a D.A.T (a Driver’s Appearance Ticket is a ticket issued by the police officer to a person caught violating the Vehicle and Traffic Law and instead of bringing him to the precinct, filing all the paper work for his arrest and bringing him to the court house immediately for his arraignment, the Driver’s Appearance Ticket will order the person to appear before the same arraignment court at a later date).

The police officers told the man that he would issue him a D.A.T. if he agreed to take the breathalyzer test and the coordination test. The police officer also told him that if he refused to take the breathalyzer test and the coordination test, no D.A.T. will be issued to him and he would have to be placed in jail until such time that he can be arraigned.

Published on: January 23, 2013

Court Looks at Complex Resentencing Issue for Defendant

by Stephen Bilkis

Defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree and on November 19, 2002 given an indeterminate sentence of imprisonment with a term of 2-6 years. A Bronx Drug Crime Lawyer said that, the People assert that the Defendant engaged in the sale of $350 of cocaine to an undercover police officer on two occasions and that on later date cocaine and drugs paraphernalia were recovered from the apartment where the sales took place. In addition to the instant offense, Defendant was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree and sentenced to time served in 2002, convicted of Invalid Use of a Credit Card with Intent to Defraud and sentenced to time served in 1999 and convicted of Criminal Trespass in the Second Degree and sentenced to four days in jail in 1998.

A New York DWI Lawyer said that, the Defendant was initially released to parole supervision on the instant offense. Parole violation warrants were issued for the Defendant. In these warrants, it was alleged that the Defendant had used cocaine and marijuana, failed to report to his parole officer on multiple occasions, left his approved residence and failed to attend two programs required by the Division of Parole. Defendant was re-incarcerated for a parole violation and continued to be in prison at the time the instant motion was filed. Defendant has been punished for one disciplinary infraction while in prison. That was a Tier 3 infraction on December 26, 2008 for violent conduct; fighting and disorderly conduct for which he received 30 days of keep lock time.

A New York DWI Lawyer said that, while incarcerated, Defendant successfully completed the drug crime treatment program and the Shock Incarceration program. He entered the Alcohol and Substance Abuse Treatment Program (“ASAT”) and continues to participate in the program, where he has received a number of positive reviews. He has received training or done work in a number of vocational areas and increased his grade levels in math and reading. Prior to prison, defendant served for eight years in the National Guard. A Bronx Criminal Lawyer said that, defendant moves to be resentenced pursuant to the Drugs Law Reform Act of 2009. That motion is opposed by the People. The People argue that the Defendant is ineligible for resentencing because he is currently incarcerated only by virtue of a parole violation. The Defendant contends that this fact does not bar resentencing.

Published on: December 28, 2012

Court Decides Whether Prior DUI Convictions are Allowed as Evidence

by Stephen Bilkis

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 (DWI) 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. A New York Criminal Lawyer said 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:

Published on: October 24, 2012

Court Discusses Use of Opinion Testimony

by Stephen Bilkis

The Facts of the Case:

On a Tuesday morning, at 4:37 A.M, a police officer was called to the area outside an establishment by the report of a fight. Upon arriving, the officer saw no fight, but observed the defendant’s vehicle parked in the lot with the engine running and the lights on. The officer approached the vehicle and in speaking to the defendant and her passenger, he noted that the defendant was extremely unsteady on her feet, had watery eyes, and had an extremely hard time to understand even the simplest of instructions. Upon testing, the defendant’s blood alcohol level was .00%, showing the absence of alcohol. While defendant refused a request to have a urine sample given for testing, a full DRE was administered at CTS. Thereafter, defendant was arrested and charged with driving while impaired by a drug in violation of the Vehicle and Traffic Law.

The defendant then filed a motion to dismiss the misdemeanor criminal charge against her of driving while ability impaired by drugs and argues that the first insufficiency arises from the fact that there is no specific statement in either the simplified traffic information or the supporting deposition that the defendant was actually observed behind the steering wheel, in the driver’s seat, or even in the vehicle; that the statement that the other person present was her passenger merely infers that the defendant was the driver; that the second insufficiency arises from the fact that neither the simplified traffic information nor the supporting deposition specify the drug which allegedly impaired the defendant.

Published on: October 7, 2012

Plaintiff Contends Insufficient Evidence for the Charges Against Him

by Stephen Bilkis

In this drug crime case, defendant was convicted after a jury trial of criminal possession of a controlled substance in the third degree and unlawful possession of marijuana. A New York Criminal Lawyer said on this appeal, defendant contends that his conviction for criminal possession of a controlled substance in the third degree should be reversed because the People failed to present legally sufficient evidence showing his intent to sell four small packets of heroin found in his pocket.

A New York DWI Lawyer said that, viewed in the light most favorable to the prosecution, the evidence presented at trial established that at approximately 1:00 A.M. on July 21, 2007 the clerk at the store located on Main Street in the Village of Hudson Falls, Washington County called the police to report that someone was outside the store selling drugs. She placed that call after two separate patrons of the store so informed her. One of those patrons displayed to her what appeared to be a bag of marihuana.

The Patrolman responded to the call. On several occasions earlier that night between 11:00 P.M. and 1:00 A.M. the Patrolman had observed defendant, with whom he was already familiar, standing outside the store. the patrolman said when he arrived at the store in response to the clerk’s call, the Patrolman observed defendant coming out of the store with a six-pack of beer. The Patrolman approached defendant and accused him of selling drugs. At Patrolman’s urging, defendant produced a sock containing seven small bags of marihuana. The Patrolman then searched defendant, discovering four individual packets of heroin in his pocket.

Published on: August 22, 2012

Defendant Claims Ineffective Counsel

by Stephen Bilkis

This is a case being heard in the Supreme Court of Bronx County. The case involves the People of the State of New York versus the defendant.

Defendant’s Case

On or about the 6th of August, 2011, the defendant filed a pro se motion to have his conviction of rape in the first degree, kidnapping in the first degree, and coercion in the first degree from 1977, vacated. A New York DWI Lawyer said the defendant argues that his rights regarding the Confrontation Clause of the Sixth Amendment of the United States Constitution were violated during his trial when the hospital record, including notations made by a resident at the hospital who did not testify, was admitted into evidence.

Published on: August 20, 2012

Defendant Cites 6th & 14th Amendment

by Stephen Bilkis

Under Massachusetts procedure, a ‘two-tier’ system is utilized for trial of a variety of criminal charges. The initial trial under this system is in a county district court or the Municipal Court of the City of Boston. No jury is available in these courts, but persons who are convicted in them may obtain a de novo trial, with a jury, in the appropriate superior court by lodging an ‘appeal’ with that court. At the de novo trial, all issues of law and fact must be determined anew and are not affected by the initial disposition. In effect, the taking of the appeal vacates the district court or Municipal Court judgment, leaving the defendant in the position of defendants in other States which require the prosecution to present its proof before a jury.

A New York DWI Lawyer said in January 1974, appellant was charged with knowing unauthorized use of a motor vehicle, an offense under Mass.Gen.Laws, c. 90 § 24(2)(a). The offense is subject to the two-tier system described above. Prior to trial in the Municipal Court, appellant moved for a jury trial. The motion was denied and the trial before the court resulted in a judgment of guilty. A one-year prison sentence was imposed. Appellant thereupon lodged an appeal in the Superior Court for SuffolkCounty.

Without awaiting proceedings in Superior Court, appellant appealed to the Supreme Judicial Court, seeking to establish that the Sixth and Fourteenth Amendments require that a jury be available in his first trial, whether it be in the Municipal Court or the Superior Court. He also raised speedy trial and double jeopardy contentions as bars to his retrial before a jury.

Published on: August 17, 2012

Defendant Moves to Supress Physical Evidence

by Stephen Bilkis

On January 20, 1984, two police officers were on patrol in a marked police car, when they observed a white, 2-door Pontiac stopped or standing adjacent to a fire hydrant, at the intersection in the Bronx. he police officer who had been operating the patrol car stopped and requested the woman to move the auto from the hydrant, whereupon she stated that she did not have a license and that it was not her car. A New York DWI Lawyer said the officer maneuvered the patrol car so that its headlights faced the front of the Pontiac and both officers exited their vehicle carrying flashlights, with the patrol car driver proceeding to the passenger side and his fellow officer to the driver’s door.

One of the officers asked the woman to produce her operator’s license, registration and insurance certificate. She responded that she did not have a license but the registration was produced from the glove compartment, although the record does not reflect whether it was retrieved by the car owner or by the woman. In any event, after the woman was unable to state the name of the owner in response to the officer’s inquiry, the police officer, who was shining a flashlight into the car, noticed a closed, brown paper bag, resting against the seat, between the car owner and the woman. He inquired as to the contents of the bag, whereupon the woman picked up the bag, handed it out the window and stated that it’s only boxes of envelopes.

According to the police officer, she became confused at that point, and didn’t understand him. She complied with the command and handed the bag out the window. The other officer, who was positioned on the sidewalk behind the passenger door, only heard highlights of what had transpired between his fellow officer and the woman.

Published on: August 12, 2012

Defendant’s Probation is Revoked

by Stephen Bilkis

The People of the State of New York are the respondents of this case. Steve Hobson is the appellant. The case is being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The defendant is appealing an amended judgment from the County Court of Suffolk County that revoked a sentence of probation that had been previously imposed by the same court.

Case Background

The defendant pleaded guilty to a charge of burglary in the third degree on the 12th of March, 2003. He was sentenced by the County Court to a term of six months in the Suffolk County Correctional Facility. A New York DWI Lawyer said this was to be followed by five years of probation. There were terms set for his probation that included that he report as directed to his probation officer, submit to drug testing, and make reparations in the amount of $1000 plus a 5% surcharge to be paid to the Probation Department of Suffolk County.