Articles Posted in DWI / DUI

The defendant man operated a motor vehicle upon a public highway while knowing or having reason to know that his license or privilege of operating a motor vehicle in this state or his privilege of obtaining a license issued by the commissioner was suspended or revoked, and the suspension or revocation was based upon a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the Vehicle and Traffic Law, and the defendant was operating the motor vehicle while under the influence of alcohol or drugs in violation of the Vehicle and Traffic Law.

Essentially, the defendant contends that the above emphasized portion of the second count’s factual allegations violates both the letter and spirit of Criminal Procedure Law (CPL 200.60), as interpreted by the Court of Appeals. More specifically, the defendant argues that, by this language, the jury at trial will have knowledge that the Defendant has a prior DWI arrest, in the very least, because of his refusal to submit to a chemical test. This, the defendant argues, is blatantly unfair, unquestionably prejudicial and precisely the evil CPL 200.60 was designed to outlaw. Further, by the defendant’s reckoning, the relatively recent Court of Appeals decision is expansive enough to encompass this defendant’s alleged refusal to take a chemical test as one of several conviction-related facts. Therefore, the defendant suggests, the People’s failure to include the allegedly offending phrase in the special information previously filed herein renders the indictment count legally defective and subject to dismissal. Finally, the defendant argues that presenting evidence of the defendant’s alleged refusal to take a chemical test to the Grand Jury at the same time as the panel was considering the other evidence and facts of this case created a prejudice which rendered the entire proceeding defective, thus warranting a dismissal of the second count if not the entire indictment.

The People, through the affirmation of Assistant District Attorney vigorously oppose the defendant’s motion. Fundamentally, the People’s position is that the special information procedure adopted by CPL 200.60, even as expansively interpreted by the Court of Appeals applies only to a particular defendant’s prior convictions and to those circumstances used as enhancing elements which are directly related to or result from the fact of such previous convictions. The People assert that the alleged license revocation at issue here is not conviction related, but rather is a revocation based upon an administrative proceeding involving the Commissioner of Motor Vehicles, which revocation would remain in effect regardless of whether or not the defendant was ultimately convicted. A defendant is not entitled to plead to special information regarding an administrative proceeding. A defendant is only afforded the protection of CPL for DUI conviction related facts and not for administrative ruling not founded upon that conviction. Thus, the People argue, indictment count 2 is not defective; there has been no violation of CPL 200.60.

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The matter at bar is a civil forfeiture proceeding wherein the plaintiff/claiming authority, Suffolk County Attorney seeks the forfeiture of a 1967 Chevrolet owned by defendant.

A Nassau County Criminal attorney said that defendant was arrested in June 2006 for driving while intoxicated. He submitted to a blood test after being transported to the hospital and it was determined that his blood alcohol level was 19%. Prior thereto, in January 1984, criminal defendant was convicted of driving while intoxicated in violation of Vehicle and Traffic Law section 1192.2.

Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. In October 2006 he pled guilty to driving while intoxicated and was sentenced to sixty days incarceration.

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A New York DWI Lawyer said that, this matter is before the Court for sentencing under The Defendant pled guilty to driving while intoxicated pursuant to Vehicle and Traffic Law § 1192(3).

A New York Criminal Lawyer said that, the State enacted Leandra’s Law November 18, 2009, roughly one month after the DWI death of 11-year-old girl in New York City. It demands, inter alia, that all first-time, misdemeanor DWI offenders install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra’s Law exhibits numerous defects imperiling its constitutionality.

The issue in this case is whether the Leandra’s Law is constitutional.

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The defendant, during his alcohol related driving trial, opposed introduction of the foundational documents customarily offered to validate the admission of the results of a breath test and subsequently objected to the results being admitted due to lack of foundation. The defendant’s basis for the objections was his inability to exercise his constitutional right to confront the witnesses against him as outlined by the Supreme Court in Crawford v. Washington. As this was a bench trial, the court reserved decision and in the interests of judicial economy allowed the evidence to be introduced subject to submission of papers and rendering of this opinion. Following the trial, the court reached a partial verdict on all charges except the per se DWI or Driving While Intoxicated charge.

The court overrules the defendant’s objections to the admission of the breath test documents, allows their introduction into evidence and permits the breath test results to be considered by the court as fact finder.

Criminal defendants in New York enjoy co-existing state and federal constitutional rights to confront their accusers. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him in accordance with the US Constitution, 6th Amendment, NYS Constitution Article 1, § 6. Since 1939, the state’s similar constitutional provision has provided that in any trial in any court whatever the party accused shall be confronted with the witnesses against him. This limited right of “confrontation” gave the defendant the opportunity to “reproach” or object to the testimony of a potentially biased witness.

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A New York Criminal Lawyer said that, petitioners, Property Clerk of the Police Department of the City of New York and the New York City Police Department commenced this Article 78 proceeding by order to show cause seeking to annul as arbitrary, capricious and contrary to law a Memorandum Decision issued March 11, 2004 (“OATH decision” as Exhibit 3 to Verified Petition) by respondent, New York City Office of Administrative Trials and Hearings (“OATH”), wherein an Administrative Law Judge directed the NYPD to return a motor vehicle the police seized from respondent, as an instrumentality of a crime and which is being held for forfeiture pursuant to N.Y.C. Adm. Code §14-140.

A New York DWI Lawyer said that, upon signing the order to show cause on March 25, 2004, this Court stayed the effect of the OATH decision pending the hearing. On the March 30th return date, this Court continued the stay pending its determination. At the same time, this Court granted the respective parties’ oral application for more time to file additional papers as well as copies of briefs filed in a federal appeal perfected this year which will examine an issue not implicated in the OATH decision now under review (i.e., seizure of a vehicle as arrest evidence). Parenthetically, this 2004 federal appeal involves the same parties who participated in an earlier, related appeal of a federal court determination, which had initially granted the City of ‘New York’s motion to dismiss.

A New York DUI Defense Lawyer said that, in reversing the district court, the 2nd Circuit Decision, inter alia, ruled that due process requires the NYPD to afford any defendant whose motor vehicle was seized at the time of arrest with the opportunity for a prompt, post-seizure hearing to determine the probable validity and justification for the pre-judgment retention of the vehicle, pendente lite.

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This is a proceeding wherein the plaintiff, NS Auto & Towing, by order to show cause dated 23 April 2007, sought a preliminary injunction to enjoin Defendants, Nassau County and Nassau County Police Department from terminating its towing and impound contract.

On 11 and 12 of June 2007, the issues were set down and witnesses were presented. The plaintiff presented the testimony of Detective SS who submitted an affidavit in opposition to their motion and RS, the mayor of the Incorporated Village of Thomaston. On the other hand, the defendants called NS’s principal, SRB, Sgt. IS of the NCPD Legal Bureau and Sgt. RJ, the administrative supervisor of the Sixth Precinct.

Prior to the hearing, an issue arose with regard to documents subpoenaed by NS. Nassau County argued that the subpoena should be quashed because much of the material sought was necessary for an on-going grand jury investigation of NS. In support, an assistant district attorney appeared to urge that the information sought, if disclosed, would negatively impact the work of the grand jury.

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This is a proceeding wherein on appeal, the court holds that the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

On 20 September 2004 at 3:57 p.m., the defendant, JD, a road patrol deputy in the Monroe County Sheriff’s Office, was on routine patrol for DWI in a marked police vehicle when he received a radio dispatch from the Office of Emergency Communications dispatch or “911 center” directing him to respond to a stolen vehicle report at an address in Henrietta, New York. When he received the call, he was heading south on West Henrietta Road, nearing a traffic light at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, which marks the border between the Towns of Brighton (on the north side) and Henrietta (on the south side). No Drunk Driving.

Thereafter, JD received a second radio dispatch which requested backup for another officer who was responding to a burglary alarm at a location in Henrietta. Because the 911 center categorized the burglary alarm as “classification one”, meaning, “a serious call that needs immediate attention”, JD acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report which was assigned a higher classification and therefore a lower priority. At 4:02 p.m., the dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy’s vehicle. DUI was not an issue.

This proceeding is an appeal from a judgment of the Yates County Court rendered 8 December 2009. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired and driving while intoxicated.

The court affirms the judgment appealed from.

On appeal from a judgment convicting him following a jury trial of, inter alia, felony driving while intoxicated DWI Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [ii], defendant contends that County Court erred in admitting in evidence breath test calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. According to defendant, the admission of those records in evidence violated his rights under the Confrontation Clause of the Fifth Amendment to the United States Constitution under Crawford v Washington.

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Defendant, charged with driving while intoxicated (DWI) and aggravated driving while intoxicated (Aggravated DWI) per Vehicle & Traffic Law § 1192-2 and 1192-2(2)(a), moved pretrial to preclude on Confrontation Clause grounds intoxication evidence from the Datamaster intoxilyzer showing her blood alcohol level to be .23.

A New York Criminal attorney said that she objects to the People’s attempt to establish the Datamaster’s reliability by using written certifications in lieu of live testimony. The first document in question is a “CERTIFICATE OF PHOTOSTATIC COPY OF RECORD OF ANALYSIS — SIMULATOR SOLUTION signed by an Inspector of the State Police Crime Laboratories, Forensic Investigation Center, attaching a “CERTIFICATION OF ANALYSIS 0.10% BREATH ALCOHOL SIMULATOR SOLUTION” and purporting to establish that the simulator solution document is an exact photocopy of one made in the regular course of business of the Crime Laboratory and that it is the Crime Laboratory’s regular course of business to make such records at the time the events recorded in them occur or “within a reasonable time thereafter.”

The simulator solution certificate provides that, “[s]imulator solution lot number 08370 has been certified to contain the appropriate concentration of ethyl alcohol and is hereby approved for use” and is signed by the operatives of the New York State Police Forensic Investigation Center.

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A New York Drunk Driving Lawyer said that, 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. 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. More particularly the defense argues that the location of the sobriety checkpoint was not properly selected.

A New York DWI Lawyer said that, in his memorandum of law defense counsel states that “Sergeant SMALL testified that although WEBSTER POLICE Chief authorized the checkpoint, there was no discussion between himself and the 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 be based on empirical evidence of prior driving while intoxicated arrests and whether the location of a sobriety checkpoint be specifically authorized by the chief of police.