Articles Posted in DWI / DUI

Property Clerk of the Police Dept. of the City of N.Y. v Burnett

Court Discusses the Krimstock v. Kelly Principle after the Seizure of Motor Vehicle

On February 16, 2004, the defendant was arrested on three drug charges: felony possession of a controlled substance, Viagra, with intent to sell; felony possession of more than 16 ounces of marijuana; and misdemeanor possession of marijuana in a public place. At the time of the defendant’s arrest, his 2000 Lexus was seized by the Police Department under voucher number B161371, because the drugs were found in the vehicle. At the time of the arrest the defendant provided paperwork that the vehicle belonged to the defendant. At the time of the arrest, the vehicle had a retail value of $24,550.00.

A New York Criminal Lawyer said that, defendant was stopped by police officers assigned to the Triborough Bridge and Tunnel Authority after he went past the toll booth in a ” cash only” lane without paying the required toll. Based on his apparent intoxication defendant was then taken to the New York City Police Department’s 45th Precinct where driving while intoxicated driving testing is routinely conducted. There he was shown a video-tape in the Spanish language which explained the breathalyzer test and he consented to take the test. After being given the breathalyzer test he was not offered an opportunity to perform the standard coordination tests.

A New York DWAI Defense Lawyer said that, after the trial jury was sworn defendant claimed that his rights had been violated by the New York City Police Department Officer (hereinafter “the Highway Officer”) who administered the breathalyzer test to determine defendant’s blood alcohol content and who decided not to administer coordination tests to defendant because that officer did not believe that defendant understood English. Defendant moved to dismiss the charges and this court reserved decision. This court did permit defendant to explore the failure to administer coordination tests during cross-examination of the Highway Officer before the jury. Defendant re-renewed the motion to dismiss at the close of the evidence and this court again reserved decision.

A New York DWI Lawyer said that, after the jury’s verdict finding defendant guilty of the crime of (DWI) Driving While Intoxicated Per Se, VTL § 1192.2, defendant moved for various forms of relief. Defendant moved to suppress the videotape of the administration of the breath test and moved to set aside the verdict and dismiss the charges based on claimed violations of defendant’s Constitutional rights to due process and equal protection. The People oppose those motions.

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People v. Persaud

Court Discusses the Elements of Attempted Assault and Reckless Endangerment in a Driving While Intoxicated Matter

The defendant on November 30, 1997 drove his construction van into the front of a restaurant after the owner refused to serve him because he appeared intoxicated. After driving his van into the front of the restaurant, he then backed up and crash into the restaurant a second time and almost hitting the owner and several employees. The defendant was later arrested by two policemen who heard the crash after being identified by the owner of the restaurant. The defendant was charged with Reckless Endangerment in the First Degree, Reckless Endangerment consecutively in the Second Degree, Criminal Mischief in the Second Degree, Attempted Assault in the First Degree, Attempted Assault in the Second Degree, Operating a Motor Vehicle While under the Influence of Alcohol, DUI, and Unlawfully Operating a Motor Vehicle. The defendant was convicted of Reckless Endangerment in the First Degree, Criminal Mischief in the Second Degree, Attempted Assault in the Second Degree, and Operating a Motor Vehicle While under the Influence of Alcohol. The defendant appealed on the grounds of that the evidence was insufficient to prove guilt beyond a reasonable doubt of Attempted Assault in the Second-Degree and First-Degree and Reckless Endangerment because the prosecution did not prove that the defendant showed an indifference to human life, that his conduct created a grave risk of death, or that he intended to cause physical injury. Secondly, the defendant argued that there was insufficient evidence to prove guilt of Criminal Mischief in the Second Degree as a matter of law because no expert testimony or documentary evidence was introduced supporting the value of the damages.

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People v. Maxwell

Court Discusses Pleading to a Lesser Offence

The Defendant, who was driving while intoxicated, was involved in a collision that resulted in the death of another person. The defendant was indicted for criminal negligence in operation of a motor vehicle resulting in death and driving while intoxicated as a misdemeanor. He then pleaded to a lesser offence of assault in the second degree, upon the recommendation of the District Attorney. He was convicted of assault in the second degree and sentenced to serve one year and six months to three years in state prison. The defendant then appealed his conviction of assault in the second degree.

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Finally, subdivision (e) of section 1104 specifies that “the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others”. Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.

But defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to “the foregoing provisions,” which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have “interpreted Vehicle and Traffic Law § 1104(e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others’ ”. The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “the foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.

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A New York DWI Lawyer said that, at 3:57 p.m. on September 20, 2004, defendant a road patrol deputy in the Monroe County Sheriff’s Office, was on routine patrol 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. At the time, 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).

Defendant soon 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” the deputy 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.

A New York Drunk Driving Lawyer said that, defendant did not activate the emergency lights or siren on his vehicle; he was traveling at a speed of 25 to 30 miles per hour in a 40–mile–per–hour zone, and does not recall if he speeded up or slowed down after receiving the dispatch. The deputy explained that he was not familiar with the location of the burglary alarm, and “due to the amount of traffic during that time of day, he didn’t want to initiate any emergency equipment without knowing where he was positively going.” He therefore touched the terminal and “looked down for two to three seconds” at the display “to view the names of the cross streets.” When the deputy lifted his gaze, he realized that “traffic had slowed.” Although he immediately applied his brakes, he was unable to stop before rear ending the vehicle in front of him, which was driven by plaintiff. There are three southbound lanes—two through lanes and a left-hand-turn lane—at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road. Plaintiff testified that she was traveling in the left travel lane. She had stopped for a red traffic light, and was just beginning to move forward slowly toward the congested intersection when her car was hit.

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In this DWI case, defendant was originally charged with common law driving while intoxicated (DWI), but he waived his right to trial by jury on that charge and was convicted after a bench trial of the offense of driving while his ability to do so was impaired by alcohol (DWAI).

Following the verdict and before sentencing, it was brought to the court’s attention that in the past 10 years the defendant had been convicted twice of DWAI. Since our law provides that a third violation of any subdivision of Vehicle and Traffic Law § 1192 within such a time period may constitute a crime, and because no accusatory instrument charging the defendant with misdemeanor DWAI (third DWAI) had been filed with the court, an issue arose regarding whether the court had the authority to consider sentencing the defendant as a third DWAI offender.

This court finds neither federal nor state constitutional provisions preclude the entry of such a misdemeanor conviction following a trial verdict. In addition, while New York’s commonlaw tradition and its statutory scheme both reflect a historical sensitivity to issues connected with the use of prior convictions in criminal prosecutions, the New York Legislature has chosen to balance due process interests by allowing the issue of recidivist sentencing to be addressed postverdict by the judge in local court cases such as this. Thus, while the court is aware of several decisions which have reached a contrary conclusion, this court holds that when a defendant with two Vehicle and Traffic Law § 1192 convictions within the past 10 years is tried on a DWI charge resulting in an acquittal and a verdict of guilty is returned as to DWAI, it is appropriate to follow the provisions of Criminal Procedure Law § 400.40 in determining whether the DWAI conviction is one for a violation or a misdemeanor.

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People v. McNair

Criminal Court Discusses Electronic Monitoring as a Special Condition to a Probation Sentence

On October 27, 1993 at approximately 2:30 in the morning, a police officer pulled the appellant’s car over for speeding and running a red light Poughkeepsie, New York. The appellant was subsequently arrested for driving while intoxicated DWI, and aggravated unlicensed operation of a motor vehicle in the first degree, both felonies. On January 11, 1994, the appellant waived his right to be prosecuted by indictment and pled guilty under Superior Court Information in Dutchess County Court to driving while intoxicated as a felony in satisfaction of the pending charges against him. On February 24, 1994, County Court sentenced the appellant to five years probation which included six months imprisonment. A special condition of the probationary sentence imposed that appellant serve up to one year of electronic monitoring following the completion of his jail term. The trial judge advised the defendant at sentencing that the electronic monitoring could be terminated by the appellant’s probation officer prior to the completion of one year. The court also directed that the appellant attend the Victim Impact Panel at the earliest opportunity following his release from jail, pay a $1,000.00 fine, a $150.00 mandatory surcharge and the $5.00 crime victim’s assistance fee. The appellant took an appeal to challenge the electronic monitoring portion of his probationary sentence as it was unauthorized and illegally imposed. On February 6, 1995, the Appellate Division, Second Department affirmed in a memorandum decision. The Appellant then appealed to the Court of Appeals on the ground that the court was not empowered to highly restrict a defendant’s freedom of movement for substantial periods of time in the absence of any statutory authorization.

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People v. Aguayo

Court Discusses Waiver of a Defendant’s Right to Appeal

The criminal defendant appealed his conviction related to two respective judgments for driving while intoxicated as a felony on one indictment and enterprise corruption and criminal possession of stolen property in the fourth degree on another indictment after pleading guilty and waiving his right to appeal. Later, the defendant wished to change his plea from guilty but was denied by the trial court. The defendant appealed the decision and whether his sentence was excessive.

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Pursuant to a written directive of the County Sheriff, a roadblock was established for the purpose of detecting and deterring driving while intoxicated or while impaired and as to which operating personnel are prohibited from administering sobriety tests unless they observe listed criteria, indicative of intoxication, which give substantial cause to believe that the operator is intoxicated, is constitutionally permissible, notwithstanding that the location of the roadblock is moved several times during the three- to four-hour period of operation, and notwithstanding that legislative initiatives have also played a part in reducing the incidence of driving while intoxicated in recent years.

The criminal defendant pleaded guilty to driving while impaired after denial of his motion to suppress the evidence obtained at the roadblock. The court affirms the order of the County Court, Genesee County, affirming his conviction.

The relevant facts are as follows:

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