Articles Posted in DWI / DUI

The Defendant stands accused, by long form information, of criminal possession of a controlled substance on account of an incident. That charge is designated as count 1. She also stands accused by seven simplified traffic information, each specifying an appearance date of June 29, 2005 and each joined together with the long form information under this docket, of DWI, reckless driving, driving above the posted speed limit, failing to maintain her driving lane, failure to yield to an emergency vehicle, passing a red light, and driving without her headlights illuminated. These incidents are alleged to have occurred at the same time and place, and on the same date, as the alleged Penal Law violation. A D.W.I. supporting deposition and bill of particulars pertaining to the alleged violation of Vehicle and Traffic Law is annexed to the accusatory documents. The Defendant was arraigned on all counts.

The criminal court file does not bear the highlighted notation that, as a general rule, is made by the clerk when a defendant, either at arraignment or thereafter by mail, serves a demand for a supporting deposition. In the court file, however, is a request for a bill of particulars, behind which is stapled a demand for supporting depositions, behind which is stapled, in turn, the envelope, addressed to Clerk, District Court, in which both documents arrived at the court clerk’s office. It is apparent that the two documents, although sent in the same envelope, were stapled together after their arrival in the clerk’s office, but no cover letter notifying the clerk of the action requested accompanies either of these documents. Each bears the endorsement of the Defendant’s attorney of record, and each is noticed, first, to the District Attorney and second, to the Clerk, District Court. Each document is dated July 28, 2005, but only the first page of the requests for a bill of particulars bears the court clerk’s time-date stamp. Although not completely legible, the time-date stamp appears to read August 1, 2005, 3:05 p.m. The four-page request for a bill of particulars calls for production of records of analysis of any chemical test administered to the Defendant, specified information about the person who conducted any such test, specified information about any person who interpreted the test to determine the Defendant’s blood alcohol content, specified information about the chemicals used during the test, specified information about the machine used to conduct that test, schematic diagrams of any such machine, and other specified information about the conduct of the test. The demand for supporting depositions bears the summons numbers of the simplified traffic information other than that by which the Criminal Defendant is charged with violating Vehicle and Traffic Law. The court has not ordered that the complainant police officer serve and file supporting depositions. Moreover, the People did not timely respond to the Defendant’s request for a bill of particulars.

The Defendant moves for the relief noted above. In support, she annexes a copy of the affidavit attesting to service by mail of the demand for supporting depositions and the request for a bill of particulars on the District Attorney, and on the clerk of the court. Insofar as she seeks dismissal of counts 3 through 8, she points to the failure of the People to supply supporting depositions, and urges that as a result of the District Attorney’s failure to supply the supporting depositions, the six traffic tickets must be dismissed. Insofar as she seeks an order compelling compliance with the request for bill of particulars, the Criminal Defendant posits that she needs a response in order to prepare for trial, and points out that the People have not refused to comply.

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After the criminal defendant was removed from his vehicle, the police 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.

The criminal defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt. A person is guilty of depraved indifference murder when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

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The Defendant Man was arrested for driving while intoxicated (DWI). He submitted to a breathalyzer test which determined his blood alcohol level to be .147%. Prior thereto, the Defendant Man was convicted of driving while intoxicated (DWI) in violation of Vehicle and Traffic Law. Based upon his arrest and prior conviction, his vehicle was seized pursuant to the County Code. The Defendant Man subsequently was charged by way of a felony complaint with driving while intoxicated (DWI) and he pled guilty to operating a motor vehicle while under the influence of alcohol as a felony.

The County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant’s warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County’s interest during the proceeding.

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A Monroe County Sheriff’s Deputy observed the criminal defendant’s vehicle changing lanes without signaling while traveling northbound on Route 15 in the Town of Brighton. The deputy pulled over and approached the defendant’s vehicle. From outside the defendant’s car the deputy noticed the defendant’s hands were trembling as he looked through his wallet for his driver’s license. The deputy smelled the strong odor of an alcoholic beverage on the defendant’s breath. The deputy observed the criminal defendant swaying slightly as he exited his vehicle. He also noticed the defendant’s face was flushed and he once again observed the odor of an alcoholic beverage. The deputy testified that the defendant was polite and courteous.

The Deputy then radioed for the Sheriff Department’s mobile DWI processing van which arrived within 20 minutes. The van operator observed that although the criminal defendant’s face was pale, his cheeks were flushed and he swayed when he walked. The van operator then tested the defendant’s breath on a CMI Intoxilyzer 4011AS instrument. At this point in the trial defense counsel objected to the introduction into evidence of the test result on the grounds that the People must present expert testimony to establish the reliability of the Intoxilyzer 4011AS.

The court allowed the prosecution to offer proof of the test results but reserved on the objection made by defense counsel. The People presented a very thorough memorandum citing several reasons why expert testimony is not necessary at the time of trial on the reliability of the Intoxilyzer 4011AS. The first ten pages of the memorandum set forth the background and development of the Intoxilyzer 4011AS. In addition, Federal and New York State legislative and administrative recognitions of the reliability of the Intoxilyzer 4011AS were set forth. However, the Court must only consider New York State statutory and administrative authority.

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A victim was seriously injured and his wife was killed as a result of a collision near Syracuse in August 1973. An eastbound vehicle operated by a driver, to whom an interim driver’s license had been issued two days earlier, crossed into the westbound lane and collided with the oncoming victim’s vehicle, as a consequence of the accident, the driver was convicted of driving while intoxicated (as a felony) and criminal negligent homicide.

A New York Criminal attorney said that it is claimed that the state is responsible for the injuries to the victim and the death of his wife because its agents and employees were negligent in establishing and operating the Onondaga County DWI Counter-Attack Program (Onondaga Program) in violation of the statutory authority for its creation, and were further negligent in issuing the interim driver’s license to the driver who, it is said, was not a proper candidate for such a license. The cases were tried in the Court of Claims on the issue of liability only, the parties having stipulated to reserve the issue of damages for later trial in the event liability was found. The trial court determined that the state’s agents and employees were negligent; that such negligence was the proximate cause of the injuries to the victim and the death of his wife; and that the claims were not proscribed by the doctrine of sovereign immunity.

The Court reversed and dismissed the claims.

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Defendant was indicted for driving while intoxicated (DWI) as a felony and for obstructing governmental administration in the second degree for acts committed. As the basis for elevating defendant’s driving while intoxicated charge to a felony, the People filed a special information charging that defendant had a 1999 conviction for driving with an unlawful alcohol concentration in the state of Georgia, which would have been a violation of Vehicle and Traffic Law § 1192(2) had it occurred in New York.

A New York New York criminal attorney said that defendant moved to dismiss the indictment raising several arguments, including that the date of the Georgia conviction rendered it ineligible to serve as a predicate for elevating the charge to driving while intoxicated as a felony. County Court denied the motion, finding that the legislative intent behind Vehicle and Traffic Law § 1192(8) was to treat prior out-of-state convictions as if they were prior convictions for the same actions occurring in New York State. The same DWAI court denied defendant’s motion to suppress the evidence against him and defendant ultimately pleaded guilty to driving while intoxicated as a felony in full satisfaction of the indictment.

The Appellate Division reversed, vacated the plea, dismissed the first count of the indictment for felony driving while intoxicated without prejudice to the People to represent appropriate charges, reinstated the second count of the indictment for obstructing governmental administration and remitted to County Court for further proceedings on that second count. The Court determined that, based on the language of the 2006 amendment to Vehicle and Traffic Law § 1192(8) and its enabling language, convictions occurring prior to the effective date of the statute, including defendant’s 1999 Georgia conviction, could not be used to raise a driving while intoxicated (DWI) offense from a misdemeanor to a felony. The Court, however, upheld County Court’s suppression ruling. A Judge of this Court granted both parties leave to appeal.

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The claims on which the instant motions are based developed from an automobile accident, when a car driven by the accused struck a vehicle operated by the victim. His wife was a passenger in the vehicle. She died as a result of injuries received in the accident. The gravamen of both claims is that the State, through its agents, or employees, was at least partially and proximately at fault for the accident because the Motor Vehicle Department negligently and without authorization issued a temporary driver’s license to the accused in August 1973 under its experimental DWI Counter-Attack Program in Onondaga County.

A New York DWI lawyer said that after filing the Notices of Claim, Claimant moved for an examination before trial of the District Director of the DWI Counter-Attack Program; for the discovery and inspection of various State documents; and, for permission to correct the date of the occurrence of the accident. The State then filed a cross-motion to dismiss both claims, alleging that they failed to state a cause of action and that the Court lacked jurisdiction over the subject matter.

Both counsel provided the Court with briefs and factual evidence through affidavits. The Court considers and weighs evidence submitted with or in opposition to a motion to dismiss. Courts utilize two standards for deciding motions to dismiss for failure to state a cause of action depending on whether or not extrinsic evidence is offered with the motion. If no evidence is presented, the Court construes the pleading liberally and presumes that the DUI allegations pleaded are true. The sole question is whether the pleading states a cause of action. However, if evidence is offered, as was the case herein, the test used is not whether the pleading states a cause of action but whether a cause of action exists.

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A New York Criminal Lawyer said that, in this action, the plaintiffs seek to recover damages for medical malpractice and lack of informed consent. They allege that the defendants were negligent in failing to timely diagnose and treat the plaintiff stroke symptoms as a result of which she suffered a stroke which has left her with permanent “locked-in” syndrome, a condition which renders her unable to speak or to move below the neck. The defendants seek summary judgment dismissing the complaint. They maintain that when they treated her, plaintiff did not present with stroke symptoms which are required before the drugs tissue Plasminogen Activator (“t-PA”) can be administered intravenously and that by the time that her stroke was diagnosed, the three-hour window of time in which that drug could have been given expired. In addition, a number of the defendants allege that they had no contact with her until after the three-hour window for the administration of t-PA expired, thus requiring dismissal of the complaint against them. As for their failure to administer the drug t-PA intra-arterially which has a six-hour window for its administration, the defendants maintain that that drugs was experimental and had not been approved by the Federal Drug Administration and accordingly, their failure to administer it cannot serve as grounds for a finding of malpractice.

A New York Drug Crime Lawyer said that, the plaintiffs maintain that the defendants unreasonably delayed in diagnosing her stroke in light of which the time in which both intravenous as well as intra-arterial t-PA could be administered expired with devastating consequences. The plaintiffs also maintain that the hospital, per the defendant failed to establish appropriate protocols and procedures for caring for a patient who presents with possible stroke symptoms and that the hospital also failed to enforce them which contributed to their failure to timely diagnose and treat plaintiff.

A New York DWI Lawyer said that, in their complaint and Verified Bills of Particulars, the plaintiffs fault the defendants for failing to be aware of or recommend that plaintiff discontinue Ephedra; failing to recognize the significance of her heaviness and tingling; failing to refer her to an appropriate specialist; failing to obtain a complete history regarding the onset of her symptoms; failing to appreciate the significance of blood pressure readings and the toxicology report; and, failing to timely diagnose her stroke and to administer t-PA. On their Amended Bill of Particulars, the plaintiffs fault the defendants for not following the doctor’s recommendations, failing to order further diagnostic tests, attributing the plaintiff’s condition to a drug overdose and failing to obtain appropriate consults by specialists. The plaintiffs also allege that the doctor failed to diagnose a stroke on the December 12, 2003 MRI/DWI. The plaintiffs also fault the doctor and the hospital for not establishing and/or following appropriate standards and protocols for treating patients with stroke symptoms.

A man seeks to recover $1,492 from his opponent for damages obtained of his automobile while in their exclusive possession and control. The opponent then interposed an application, seeking dismissal to the complaint upon the sole ground of release of liability.

The matter started when the man was sleeping in his car while parked on the roadside. A county police officer arrested him under suspicion of DWI driving while under the influence of alcohol. The officer subsequently breathalyzed the man on the roadside and on the precinct with a 0.00 reading results.

The officer disputed the sufficiency of the breath samples provided and the accuracy of the <a breathalyzer results, and reported that the man refused to properly submit to a breathalyzer test.

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A New York DWI Lawyer said that, this court now holds that in this prosecution of Vehicle and Traffic Law (“VTL”) section 1192 for operating a motor vehicle while impaired or intoxicated by alcohol, upon objection of the defense, the prosecution must establish, at a hearing by expert testimony, scientific evidence that a Blood Alcohol Content (BAC) test taken more than two hours after the arrest of the defendant is competent, reliable and probative of the fact that the defendant was impaired or intoxicated when he operated a motor vehicle before such results may be admitted as relevant evidence at the trial.

A New York DWAI Lawyer said that, recently, the Court of Appeals allowed a BAC test for drugs to be admitted into evidence when the defendant consented to take the test within two hours of arrest, and where the test was actually administered two hours and twenty-eight minutes after the arrest. More recently the Judge denied a motion to suppress the results of a BAC test administered after two hours, and held that Atkins eliminated the Two Hour Rule when a defendant expressly consents to take the BAC test. However, the Judge stated that it was unclear whether Atkins only applies where the defendant consents to take a BAC test within two hours of arrest. Both Judge and this court believe that the Court of Appeals in Atkins has created more questions than answers to the VTL § 1194 Two Hour Rule. Hence a review of the Two Hour Rule is appropriate to understand and place Atkins in its proper perspective.

The issue in this case is whether court erred in suppressing the results of the Breathalyzer test.