DWI / DUI

Published on: April 16, 2012

Court Rules Because of Proceedural Error, DWI Defendant gets New Trial

by Stephen Bilkis

Two police officers saw a car moving erratically. When they stopped the car, the lady driver refused to exit her car. A New York DWI Lawyer said the police officers heard the woman’s slurred speech and smelled alcohol on her breath and concluded that she was very intoxicated.

The police officers also saw that aside from the lady driver, there was an adult passenger with her and an 11-month old child in a car seat. The police officer called Social Services to take custody of the 11-month old child.

A New York DWI Lawyer they then arrested the lady driver and brought her to the station. They asked her if she wanted to take the breathalyzer test but she refused. The arresting officers told her the consequences of not taking the breathalyzer test: that her refusal will be entered into the record and will be used as evidence against her. But she still refused.

Published on: April 15, 2012

Defendant Alleges Inadequate Miranda Warning for DWI Arrest

by Stephen Bilkis

There are many issues involved in any driving under the influence case that goes to court. Among them is the importance of delivering the refusal warnings correctly. If the refusal warnings are not given correctly, the evidence of the refusal cannot be used in court. This can create a situation that prevents the officers from being able to make an adequate case for DUI. In New York, the officers often use a videotaped warning for persons who are suspected of DUI who speak Spanish. Normally, this is an effective way to ensure that people who do not speak English are able to understand the warnings as well as the repercussions of a refusal.

A New York DWI Lawyer said however, problems can arise when a suspect does not behave in a predictable manner. In one case, which occurred in New York on January 14, 1998, Vice-officers were engaged in a prostitution sting. It was set up near East 242nd Street and White Plains Road in the Bronx. The defendant, who only spoke Spanish, was arrested when he drove up to an undercover police officer and offered her $20 for a sexual act. She notified her back up officers. When the arresting officer stopped the defendant, he approached the driver, who was the defendant. He noticed that the defendant exuded a strong odor of an alcoholic beverage from about his person, his eyes were blood-shot and glassy, and his speech was slurred. The arresting officer asked the defendant to exit the vehicle. When he attempted to exit the vehicle, he fell out of it face first. He was transported to the precinct where he was shown the Spanish language implied consent warnings. After the first section that ends with the question of whether the defendant would submit to the test, the tape was stopped. The defendant responded in a non-committal manner. He was rambling and uttering nonsense. After several attempts to get a sensible answer out of the defendant, the officer gave up and turned off the video tape of both the Spanish warnings, and the entire arrest.

When the refusal case was taken to court, one of the first problems was that the warnings were not completed. A New York DWI Lawyer said the second part of the tape that explains the repercussions of refusal was never played for the defendant. his failure effectively established that he had not been given the warnings correctly. That meant that the jury, in court, could not view any portion of the video of his arrest that concerned his refusal to take the test.

Published on: April 14, 2012

Defendant Claims Car Seized Unlawfully

by Stephen Bilkis

In matters of law it is important to have an attorney. Most people who do not have a law degree are unfamiliar with all of the limitations that are placed in reference to legal actions. In New York, the state can seize any motor vehicle that is involved in the commission of a crime. That means that the state of New York can seize the vehicles of people who are charged with driving under the influence of alcohol or drugs. However, there are certain limitations. A New York DWI Lawyer said the owner of the vehicle must be notified within 25 days of the date of a DUI arrest. The property clerk of the police department has fifteen days beyond the last day of the 25 day limitation to commence forfeiture action. If the property clerk does not meet these deadlines, then the defendant may move to dismiss the forfeiture action and reclaim his or her property.

DUI cases are loaded with intricacies of law that can make or break the case that the state attempts to make. The reason that there are time limits on the paperwork process for forfeiture of property is obvious. The problem here is that the state can initiate this process even before the driver has been determined guilty of a crime or not guilty.

In one case that occurred on June 17, 2007 when a man’s BMW B23i was impounded as an instrument of a crime. The officers seized the vehicle after the defendant was arrested and charged with several statutory offenses and traffic law violations. A New York DWI Lawyer said the defendant was charged with several offenses, one of which was DUI. On July 21, 2009, the man made a demand for his vehicle to be returned to him. The property clerk refused and advised the man that his request was invalid because he did not submit a release from the District Attorney. In September of 2009, the property clerk filed a summons and obtained a complaint number to begin the process of seizure of the vehicle. On December 3, 2009, the property clerk mailed a summons and proof of service with the court on December 7, 2009. On December 17, 2009 the service was deemed completed.

Published on: April 13, 2012

DWI Defendandant Stood Up By Legal Counsel in Court

by Stephen Bilkis

A man was charged with Aggravated DWI, DWI and Driving While Ability Impaired by Alcohol. The criminal complaint alleges that the accused man operated a motor vehicle in an intoxicated condition and in a later blood alcohol test was found to have a level of alcohol in his blood. After arraignment, the case was adjourned for the retention of private counsel and a counsel appeared as the accused man’s attorney for the first time. A New York DWI Lawyer said the accused man has apparently been at liberty after posting bail throughout the proceedings. The Jury and the man’s counsel both estimates that the trial of the matter, when it eventually occurs, should take no more than two days.

The case was adjourned for hearing and trial. The Record of Court Action notes that the complainant was ready on that date but that the accused was not and needed a copy of the police videotape which the complainant were directed to provide. The case was adjourned for hearing and trial to another date. A New York DWI Lawyer said on the rescheduled date, the Record of Court Action indicates that the complainant were ready. The accused man’s counsel submitted an affirmation asking for an adjournment for medical reasons. According to the complainant, however, the Assistant District Attorney informed the Court on that date that she had spoken to the accused man’s counsel and he had informed her that he would not be available for eight weeks due to his congested trial schedule.

According to the complainant, the counsel indicated that he was still not ready to proceed for medical reasons and asked that the case be adjourned for the second time to another date. The Record of Court Action notes that the complainants were also not ready on that date and contains a question by the Court as to whether the man’s counsel had a medical issue. The complainant submitted a Certificate of Readiness. A Nassau County Criminal Lawyer said the case was adjourned for the third time to another date and the Record of Court Action does not indicate why a hearing and trial did not occur on that date. The defense counsel asserts that the complainants were not ready on that date. The defense counsel submitted an affirmation saying that he was engaged in trial on another matter and requesting an adjournment for the fourth time to another date. The case was adjourned to and the complainants indicated that they were not ready on that date.

Published on: April 12, 2012

DWI Defendant Contends Roadblock was Illegal

by Stephen Bilkis

A county sheriff established a roadblock with the purpose of screening drivers to identify persons driving under the influence of alcohol. At the aforementioned time and place, every car passing the roadblock location was stopped by the uniformed sheriff in order to make observations of the drivers to determine if they were driving while intoxicated.

Consequently, a New York DWI Lawyer said that one of the deputy sheriff stopped a vehicle. The uniformed sheriff stood in the middle of the road and signaled the driver to stop his vehicle. The man stopped his vehicle in a normal manner. The sheriff walked over to the driver’s side of the vehicle, and shined his light into the vehicle. The sheriff observed that the man’s eyes to be bloodshot. The man, without being asked, rolled down his window and spoke to the deputy sheriff who then noticed the odor of alcoholic beverages coming from the man’s breath.

As a result of the deputy’s observation of bloodshot eyes, and the odor of alcohol upon the man’s breath, he asked the man to exit the car and come over to the side of the road for further investigation. All of the cars which passed the roadblock on that event were observed and the entire operators of all of the motor vehicles were asked with questions in the same manner as everyone else. After the man exited his car, the deputy sheriff observed the man’s speech to be slightly slurred, and again detected an odor of alcohol upon the man’s breath, and concluded that the man’s ability to drive a vehicle might be impaired.

Published on: March 7, 2012

Defendant Contests Calibration of Breathlyzer in DWI Case

by Stephen Bilkis

The accused man is charged of driving while ability is impaired by alcohol. During the course of his DWI consolidated pre-trial hearings and non-jury trial, the accused team objected to the complainant’s admission of the certified calibration records and simulator solution certificates. An NY Criminal Lawyer said that the challenged documents relate to the breath test instrument used to test the accused man’s blood alcohol level at the time of his arrest. The accused counsel’s challenge was made on the grounds that admission of such business records without the testimony of the analyst who created them violates the law. The Court reserved the decision on the application while completion of the case is pending, at which time the Court granted both parties the opportunity to submit summary of law in support of their respective positions. The Court has considered the several submissions by the counsel in concluding that the certified calibration records are admissible and do not violate the law.

A NewYork Criminal Lawyer said that based on records, the law held that since the Constitution guarantees a criminal accused the right to be confronted with the witnesses against him, the practical application of the law prohibits the introduction of out-of-court statements which are testimonial in nature, unless the accused had an opportunity to cross-examine the person who made the statements.

Records similar to the challenged documents have been admitted routinely for years in State DUI cases if properly authenticated under the State business records in exception to the hearsay rule. Most courts examining the issue in light of the law still held the records to be non-testimonial and therefore admissible without live testimony in accordance to the proper authentication. Addressing the business records hearsay exception, the Court of Appeals also cautioned against the categorical elimination of business records as a basic misreading of the law. A thorough analysis declined to adopt a bright line rule admitting business records without testimony, as facts and context are essential and the question of validity of the testimony requires consideration of multiple factors, not all of equal importance in every case.

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

DWI Defendant Contests Driver’s License Suspension

by Stephen Bilkis

The first accused is charged with misdemeanor information with Vehicle and Traffic Law and the second accused is charged in separate misdemeanor information with Vehicle and Traffic Law. The issues raised by the defense counsel are identical in each case.

A New York Criminal Lawyer said that in each case, the accused is alleged to have had operated a motor vehicle while having a blood alcohol level in excess of .10 of 1%. In each case, the accused man’s driver’s license was suspended at arraignment because of the blood alcohol content. The defense counsel contends that the suspension procedure constitutes a penalty the accused moves for orders to dismiss each docket on double jeopardy grounds.

In a recent Law Journal article, it is evident that Vehicle and Traffic Law has been attacked on constitutional and due process grounds throughout the state with the majority of decisions holding the statute constitutionally infirm.