New York Criminal Lawyer Blog
Driving while Intoxicated or Driving Under the Influence of alcohol or drugs has become a more commonly charged offense than it has ever been. The reason for this is that the legally intoxicated limit has been substantially reduced in recent years. A New York Criminal Lawyer said the current intoxicated level is .08, but someone with an even lower limit can be charged with DUI if there are circumstances where the officer can prove that the driver was acting in a less safe manner. What that means is that even if the person exhibits no symptoms or behaviors of being intoxicated, the officer can charge them with DUI if they can show that the driver was less safe. What does a court consider less safe? It can be anything from missing a stop sign to having a fatal car accident. Less safe has not been sufficiently defined so that anyone can reasonably protect themselves from this type of charge.
There are several rules that anyone should know when it comes to being charged with DUI or DWI. The first is that the officer is supposed to have articulable suspicion to stop your car. Articulable suspicion means that the officer has observed driving mannerisms that either do constitute a traffic violation, or indicate that the driver may be impaired. Either way, the officer must show that he or she had a reason to stop the car. If there is no reason, or the reason is improper, everything after the stop is inadmissible in court.
Also, as soon as a police officer makes contact with a driver, they are attempting to determine if that driver is intoxicated or not. In order for a police officer to arrest a person for an offense, they must have probable cause to believe that that person is involved in a criminal pursuit. In the case of DUI, the officer must prove that he has probable cause to believe that the driver is intoxicated and less safe to drive the car.A Queens Criminal Lawyer said that means that all voluntary tests requested of you on the side of the road, are designed not to prove your innocence, but rather to obtain probable cause to place you under arrest.
These field tests are voluntary. No one has to take them. They are not the state administered test requested after you are arrested. Only after an arrest, does the officer have to inform a driver that they are being taken to a breathalyzer machine or the hospital in order to perform the state administered test of their blood, breath, urine, or other bodily substance for the purpose of determining alcohol or drug content. Some police officers now carry a small portable machine called an Alco sensor. A Westchester Criminal Lawyer said this machine is less accurate than the breathalyzer. For that reason, courts have repeatedly ruled that the results of a roadside Alco sensor test can only be used to state that the driver tested positive or negative for alcohol. The actual results that read on the display of the machine are not admissible.
The question arises when a person is given the Alco Sensor test and tests not only positive, but well over the legal limit, then refuses the breathalyzer test. The courts have ruled that the numerical results that were displayed on the roadside test are not admissible in court. The only thing that the officer can testify to is that the driver tested positive for alcohol.
Statements made by a driver in this type of arrest are also different. Anything that a person says to a police officer on a traffic stop is voluntary. Any questions that the officer asks a driver are voluntary questions. If the officer asks where the driver has been and where they are going, the driver can say whatever he wants. He is not under oath and he is not under arrest. That being said, because he is not in custody, he does not have the right to an attorney at that time. So, if an officer stops someone for suspected DUI and asks them where they have been and where they are going and the driver says that he left one bar and is headed to another; he has just provided the officer with information that could lead to probable cause for an arrest. Because he is not in custody and being questioned, the Miranda ruling does not protect him. The Miranda ruling protects people from being questioned without the presence of an attorney to advise them. The Miranda rule only applies after a person is in custody and only when they are questioned while in custody. There have been some cases, which argued that a person is reasonably in custody on a traffic stop because they do not have the right to leave. That means that if the officer asks them any questions once they have established that they are not free to drive away, then the officer must read them their rights under Miranda. Under Miranda, questioning must stop the moment that the person in custody and being questioned requests an attorney.
Obviously, the issue of custody and questioning is important in the determination of the right to an attorney. Any statements made after an arrested person has requested their attorney, must be considered questionable. Questioning of a suspect is required under Miranda to cease the minute that the person requests the presence of their attorney.
That being said, when is a person in custody on an accident scene? The following case raises several questions in reference to these legal issues. On July 14, 2003 at 12:20 AM, a patrol officer in a double car with a partner, answered a call at Coop City Boulevard and Bartow Avenue in reference to a traffic accident. When they arrived, they discovered that a pedestrian had been hit by a car and was lying on the ground. The officer observed a silver Mitsubishi car with extensive front end damage. He walked over to a man who was standing near the car and asked him if he had been driving the car. The man stated that he had. The man had no trouble standing, he showed no indications that he had been drinking alcohol that night. The police officer left the man and followed the ambulance with the pedestrian to the hospital. The pedestrian died at the hospital and the officer returned to the accident scene at around 2:40 that morning. When he arrived at the scene, he was informed by another officer that the driver had been arrested for DUI when he registered a .166 breath alcohol on the Alco Sensor. The police officer stated in court that at that time, he noticed signs that the driver had been drinking such as the odor of an alcoholic beverage about his person and that he had red, bloodshot eyes. The officer took the driver to the 45th Precinct and asked another officer to run a breathalyzer test on him. The time was 3:38 a.m. The reason that the timeliness of the test is critical is because by law, the police have only two hours from the time of arrest to run the test. In this case, the first officer approached the driver at 12:20 a.m., the test was not requested until 3:38 a.m. That is more than three hours from the time that the man had been driving the car. The man initially agreed to take the breath test, but then asked the officer running the test if he should do it before he checked with his lawyer. The police officer told the man that it was his choice, but that a lawyer would not be allowed in the testing room.
This is a true statement, the lawyer is not allowed in the testing room; however, was this a request for a lawyer in essence a request under Miranda? In most law enforcement agencies, the officers specifically refrain from asking any questions of a person arrested for DUI other than to read the implied consent warnings that state any test refusal can result in the suspension or revocation of their driver’s license. The reason that they speak in commands during this time and not questions is so that they do not have to read Miranda rights and the subject does not have to be told that they have the right to have an attorney. If they are not being questioned then they do not have the right to an attorney. However, as soon as a question is asked, they must be Mirandized. Either way, as soon as the arrested person requests a lawyer, no questions can be asked of him without one.
It was at this point, that the officer read the implied consent warnings to the driver about the possible consequences of refusing the state mandated test. The defendant did not respond when asked if he was going to take the test. After several minutes, the officer asked him again and told him that he needed a yes or no answer. The driver stated that the wanted to talk to his lawyer first. At that point, the videotape of the breath test procedures was stopped. The driver was permitted to use the phone to locate an attorney. He called some relatives, but was unable to locate an attorney. The police did not ask any more questions of the driver, but determined that he had refused to take the test. He was reported to the driver’s license bureau as a refusal.
The defendant brought three questions of law before the Supreme Court. The first was that there should be no admissibility of the field test; the second that all statements made by the driver be excluded from court because he did not have an attorney; and lastly, that all evidence of his refusal to submit to a chemical test be suppressed.
The results of the Alco Sensor test according to all case and statutory constraints cannot be used in court as chief evidence of the driver’s intoxication. This has been ruled on repeatedly and was not changed here. The defendant wins this motion to preclude the numerical results of the field test.
Secondly, Under People v. Gursey (1968), it was established that a person who has been arrested for DUI has the right to speak to an attorney before deciding if he wants to take the test, provided of course, that the request does not cause such a delay that the test would not be performed in the two hour window. The court ruled that the driver’s response that he wanted his attorney was correctly deemed a refusal and is admissible in evidence.
Lastly, the defendant’s motion to preclude all statements that he made was denied. The court found that there was ample time to determine a response before court and that the driver was given notice at arraignment that they would be used. The people provided sufficient notice and the request is denied. However, a Huntley/Dunaway hearing was ordered to address the issues with the statements.
It is important that anyone who has been arrested for domestic violence contact a New York Criminal Lawyer. A New York DUI Lawyer can advise you of your rights and help you regain your freedom.