Articles Posted in DWI / DUI

Claimant, as limited administratrix of her late husband’s estate, seeks damages for his wrongful death which allegedly occurred when, as he drove his automobile along a New York State highway, he left the lane of travel colliding with a guide rail, causing his automobile to flip over and land on its roof, resulting in claimant’s decedent’s instant death. The claim alleges negligence on behalf of the State of New York in the construction and/or maintenance of the guide rail system situated alongside of a state owned roadway. Defendant argues the accident occurred due to driver-alcohol impairment. Furthermore, defendant contends that the subject guide rail was not designed to withstand the force of the collision involved in this accident, and that any maintenance failure did not contribute to the cause of this accident.

A New York Criminal attorney said that the subject accident occurred in December 1997 in the Town of Lloyd, Ulster County, New York. Shortly before that time, claimant’s decedent had driven to claimant’s residence. Upon arriving at the apartment complex’s parking lot, he remained in his vehicle. Soon after his arrival, claimant appeared on her stoop with two of their three children. Decedent remained momentarily then drove from the lot in his automobile. No conversation occurred between claimant and decedent and no explanation was offered regarding why he left so abruptly. Shortly after decedent drove away, claimant heard two loud successive “bangs.” She immediately called 911 reporting that there had been an accident in which she believed her husband was involved. She then left her apartment and ran to the scene of the accident which was a short distance.

A New York DWI lawyer said that claimant observed, much to her horror, that it indeed was her husband who had been involved in the accident as she saw his auto lying on its roof off the side of the road. As she remained roadside, a number of motorists stopped to look. One such person went to the decedent’s auto and opened the driver’s door, at which time, claimant saw her husband in the vehicle “bent over.” Immediately thereafter, claimant left the scene with one of her daughters who had become distraught at the sight. She later went to the Hospital in Poughkeepsie where her husband was taken by ambulance. There he was pronounced dead on arrival. No evidence was submitted to suggest he endured any pain and suffering.

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This is a proceeding wherein the defendant moves pursuant to CPL 330.30 and 370.10 for an order setting aside the verdict upon the grounds that (1) the court committed reversible error by improperly allowing the People’s challenge “for cause” of a prospective juror and the People’s peremptory challenges were ultimately exhausted before jury selection was complete; (2) the defendant was deprived of a fair trial because of the People’s prosecutorial misconduct during summation; and (3) improper conduct by a juror during deliberations, out of the presence of the court, may have affected a substantial right of the defendant.

The People oppose the defendant’s motion.

The defendant was charged by way of a simplified traffic information, with a violation of Vehicle and Traffic Law § 1192 (2) – operating a motor vehicle while intoxicated per se; that is a blood alcohol content of .08% or more by weight of alcohol in his blood, and Vehicle and Traffic Law § 319 (1)-operating a motor vehicle without insurance in January 2004.

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People v Lopresti

Court Discusses Vacation of a Practicing Attorney Previous Conviction

The defendant, a practicing attorney and former Assistant District Attorney, in 2006 was charged and indicted for Operating a Motor Vehicle While under the Influence of Alcohol as a felony after being involved in an accident and having.17 blood alcohol content. An element of the charge was in a previous conviction where he pled guilty to driving while under the influence in 2003. The defendant requested that a misdemeanor conviction, he entered a plea of guilty to operate a motor vehicle while under the influence of alcohol, DWI, in 2003 be vacated. The defendant’s reason for vacating the conviction was that he was he was unaware that when he pled guilty that he could be prosecuted for a felony if he was arrest for another driving while intoxicated within ten years. He also stated in his Nassau County Criminal Attorney that represented him was in effective as he did not inform him that if he pled guilty he could be prosecuted for a felony if he committed another offense. In his affidavit, he further asserted that would not have pled guilty if he was properly advised by his attorney. The People provided an affidavit of the New York City Criminal Lawyer that advised the defendant which stated that the defendant was advised of all the repercussions of pleading guilty and possible charges that could arise in the future if he was charged again with the same offense.

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Teri Gottlieb Et Al Respondents,

V

Jerry B. Stern, Defendant, and

This is a proceeding wherein the defendant, ND, charged with operating a motor vehicle while having .08 of one per centum or more by weight of alcohol in her blood (Vehicle and Traffic Law § 1192 [2]) and operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law § 1192 [3]), has moved to suppress any statements attributed to her, the results of any chemical analysis of her breath, and all other evidence allegedly obtained from her.

Based upon the People’s responding affidavit, which effectively concedes the truth of all allegations necessary to the court’s determination of this motion under CPL 710.60 [2] [a] and People v Gruden, and after giving both parties an opportunity to be heard on 17 July 2008, the court denies the People’s request for a Dunaway/Scott hearing and decides the instant motion on the papers.

On 2 September 2007 at about 1:00 A.M., defendant’s vehicle was stopped at a New York State Police sobriety checkpoint on Fluvanna Avenue in the City of Jamestown. After allegedly displaying certain outward indicia of intoxication and failing four out of five field sobriety tests, defendant was asked to give a breath sample, which resulted in a reading of a .13% blood alcohol content level. Defendant challenges the constitutionality of the checkpoint stop upon the grounds that the New York State Police failed to follow their own self-established, written guidelines.

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A defendant is arrested for driving while intoxicated. He is not given Miranda warnings. He is given inadequate “refusal” warnings in connection with a request by the police that defendant consent to submit to a chemical “breathalyzer test” for the presence of alcohol in his system. Defendant answers (while videotaped) the inadequate refusal warnings by making several non-responsive but incriminatory remarks in what appears to be a mildly drunken fashion. All concerned agree that evidence of the defendant’s refusal to take the chemical test is barred at trial by Vehicle and Traffic Law (“VTL”) Section 1194(2)(f) because of the inadequate refusal warnings.

A Queens County DWI lawyer said that the open question presented is this: Can the People nevertheless properly present select portions of the videotape at trial in order to prove defendant’s DUI intoxication, provided that the videotape is redacted so as to eliminate those passages that indicate that defendant was asked and refused to submit to the chemical test? Or would the presentation of the redacted videotape at trial violate either 1) the statutory bar against evidence of refusal established by VTL § 1194(2)(f), or 2) defendant’s right against self-incrimination?

It is now well-settled that where a defendant has been properly arrested based on probable cause for the crime of driving while intoxicated, the police may ask the defendant to consent to submit to a chemical test for the presence of alcohol in the defendant’s system, and the defendant has no constitutional right to refuse. This is so because a chemical test does not require defendant to provide evidence of a testimonial or communicative character and therefore does not implicate defendant’s right against self-incrimination.

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Two men, including the owner, were sitting in a car in the garage when someone approached from behind and ordered them to get out and not to turn around.

The owner of the car originally testified that he saw the attacker holding a gun, but he indicated that he had not looked the attacker’s hand. The owner stated that he comply the attacker’s command and stepped out of his car. He then saw the car being driven away. But, he was unable to make an identification of the attacker.

On the same morning, one detective was performing a tour of duty with two colleagues. They were working in civilian clothes and operating out of an unmarked detective cruiser. At around 1:30 a.m., they received a radio alarm for the alleged robbery and DWI. The report asserted that the car was being operated by a black male, approximately 23 years old, wearing a full length grayish coat and armed with a hand gun.

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Defendant was charged with felony drunk driving. Defendant then moved to vacate his 2003 misdemeanor conviction of Operating a Motor Vehicle under the Influence of Alcohol which was entered via a plea of guilty.

According to the defendant, in an affidavit, he was not aware when he pled guilty in 2003 that he could be prosecuted for a felony if he were arrested for another DWI offense within ten years of his conviction; he accused the attorney who represented him of being ineffective because he never told him that a possible future DWI prosecution could be a felony; he never would have pled guilty if his attorney had so advised him; and argued that, under a landmark case which was decided in 2010, he is entitled to have his plea vacated.

According to the defendant’s criminal attorney who represented him in the 2003 misdemeanor conviction, in an affidavit which the People provided, defendant’s allegations ring false, and he does advise all his clients that pleading guilty to a DWI charge, or any other charge, may subject them to more serious charges and/or sentences if they are arrested and prosecuted in the future.

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Defendant was charged with criminal felony drunk driving. Defendant then moved to vacate his 2003 misdemeanor conviction of Operating a Motor Vehicle under the Influence of Alcohol which was entered via a plea of guilty.

According to the defendant, in an affidavit, he was not aware when he pled guilty in 2003 that he could be prosecuted for a felony if he were arrested for another DWI offense within ten years of his conviction; he accused the attorney who represented him of being ineffective because he never told him that a possible future DWI prosecution could be a felony; he never would have pled guilty if his attorney had so advised him; and argued that, under a landmark case which was decided in 2010, he is entitled to have his plea vacated.

According to the defendant’s attorney who represented him in the 2003 misdemeanor conviction, in an affidavit which the People provided, defendant’s allegations ring false, and he does advise all his clients that pleading guilty to a DWI charge, or any other charge, may subject them to more serious charges and/or sentences if they are arrested and prosecuted in the future.

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On January 26, 2011, a man was charged with five counts including, driving while intoxicated (count one), resisting arrest (count two), harassment in the second degree (count three), parking upon pavement (count four), and possession of open containers in a motor vehicle (count five). He moved for suppression of all statements made to a law enforcement officer and suppression of the arrest and all evidence seized pursuant to that arrest. The Court thereafter, conducted a joint Huntley and Probable Cause suppression hearing.

The credible and believable testimony at said hearing established that on December 4, 2011, around 1:00 in the morning, City Department of Environmental Protection (DEP) Police Officers were concluding a security check. While finishing their security check, the two officers observed a slow-moving vehicle traveling on Hasbrouck Road toward the intersection of Hasbrouck Road and State Route 55. The area is rural and unlighted. The vehicle traveled and stopped between four to six times before reaching the stop sign.

Thereafter, the vehicle made a legal right-hand turn. It continued in the same stop and start manner before pulling over to the side of the road. Both officers testified that the defendant did not violate any vehicle and traffic laws and they had no police investigative reason to stop or approach the vehicle.

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