Articles Posted in DWI and Traffic Offenses

Whether you are operating a motor vehicle in Manhattan, Brooklyn, Westchester or anywhere else in New York State, the DWI laws are all the same. For example, if you “blow” and register a .08 or higher BAC, you will face a per se arrest charge of Driving While Intoxicated pursuant to New York Vehicle and Traffic Law 1192.2. As a New York DWI lawyer I have seen District Attorney’s Offices vary in their respective offer thresholds (meaning how high a blow is tolerated) when an individual is arrested for DWI, DUI or drunk driving. However, New York DWI law limits what may ultimately be offered in these DUI cases and what a defendant is required to do in order to regain their your driving privileges.

Beyond potential offers, the manner in which your arrest for DWI occurred in New York may also be relevant in the ultimate resolution. Certainly, if you were observed swerving and almost striking a car or person it is more likely the offer will be more severe if one is made at all. What if, however, your stop and arrest was a product of a checkpoint? While the checkpoint itself is not indicative of the type of offer, if any, you will receive, the checkpoint’s legality and validity is critical. If for some reason you are arrested for Aggravated DWI for blowing a .18, for example, and you were stopped pursuant to a police checkpoint, prosecutors would likely not make you any offer. However, if you had a potent legal defense, such a valid challenge to the checkpoint procedure and implementation, an offer may not be needed at all. Challenging the checkpoint and ultimate search and seizure of your person, as difficult as it may be, is an avenue that should not be ignored. Although it failed in the case below, the following decision offers a good, but very basic, primer on DWI checkpoints.

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Driving with a suspended license in New York may seem like no big deal, but Aggravated Unlicensed Operation of a Motor Vehicle (Vehicle and Traffic Law 511, a/k/a VTL 511), is not only serious, but a criminal offense. Although not a part of the New York Penal Law, VTL 511 is an unclassified misdemeanor punishable by up to thirty days in jail. As such, should you be arrested for Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree and ultimately convicted of VTL 511 in New York, you will have a permanent record. It makes no difference whether the issuing state for your license is New York or elsewhere.

Whether a police officer arrests you for VTL 511 and gives you a New York City Desk Appearance Ticket or processes you through court that same day, the law is the same. In a nutshell, if you operate a motor vehicle in New York while your license or privilege to do so in this state is suspended or revoked (and you know or have reason to know), you are guilty of Third Degree Aggravated Unlicensed Operation of a Motor Vehicle. Although the law is fairly clear, how can you “beat” a VTL 511 case if in fact your license to drive in New York is suspended? While I wish there was a catch all answer, the following case demonstrates the significance not merely of the actual suspension or revocation, but the critical element of knowledge in an unlicensed driving allegation. Simply asked, if the People (prosecution) can prove your license was revoked or suspended, do they still need to establish your knowledge of the same? The answer to this question is found the recent decision of People v. Krystal Francis, 10257/2010, NYLJ 1202558131182, at *1 (Sup., KI, Decided May 29, 2012).

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Mark Steinberg, Tiger Woods’ agent, was arrested Saturday evening in the Westchester County town of Ardsely, New York for drunk driving and DWI. According to reports, Steinberg allegedly recorded a .18 on the intoxilyzer. The legal limit in New York State is .08. Once a driver blows .18 or higher on a breathalyzer, the misdemeanor offense is enhanced in terms of potential punishment while possible offers are limited by law from standard Driving While Intoxicated and DWI arrests.

Briefly, Vehicle and Traffic Law (VTL) 1192.2 is New York’s typical DWI statute when the police are able to obtain a reading of ones breath/blood alcohol content, or BAC, of .08 or greater. At one’s arraignment, the court will suspend the driver’s license or privilege to drive in New York for thirty days and require that the defendant meet with a therapist for an assessment. This assessment will address alcohol use, possible abuse and potential treatment. In limited circumstances, the court can conduct a “Hardship Hearing” if the suspension would cause and an extreme hardship for the defendant to get from his or her home to work or school. In such circumstances, a court will not grant this limited conditional license to drive unless the defendant establishes inability to obtain alternative means of travel. It is worth noting that at the Hardship Hearing a defendant must provide evidence beyond his or her own testimony to corroborate and establish the extreme hardship.

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I don’t know how many times I can say it, but New York drunk driving crimes and driving while intoxicated arrests have enormous ramifications. Compounding matters, criminal attorneys and New York City DWI lawyers often face evidence that is videotaped and based in chemical tests that is difficult to controvert. Even when prosecutors have what appears to be strong evidence of a DUI, the best defense may not be challenging the ultimate determination as to whether the person in question was driving drunk or had a chemical test result .08 or greater. Instead, the best defense may be attacking whether the police had the authority, ability or probable cause to arrest the accused in the first place. This precise issue – probable cause to arrest – was exactly what was litigated in People v. Dwight Ramsey, 069905C2009, NYLJ 1202549717499, at *1 (Sup., BX, Decided April 16, 2012) and worthy of a review in this blog entry.

In Ramsey, the defendant was arrested for violating VTL 1192 (the misdemeanor DWI crime in New York) after the police observed him in his vehicle with a woman. Upon approaching the car, the police claimed they noticed the smell of alcohol, the key in the ignition and ultimately the defendant’s inability to stay balanced. The defendant contended, in substance, that the key was not in the ignition, he was going to get some music CDs with the woman, he had not violated and traffic laws or parking regulations and ultimately the police lacked probable cause to arrest him.

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Section 1192 of the New York Vehicular and Traffic Law (VTL 1192 ) sets forth what constitutes Operating a Motor Vehicle While Under the Influence of Alcohol or, as most people call it, Drunk Driving, DWI or DUI. The consequences of a conviction can be life changing in terms or a criminal record, but also on one’s ability to drive a vehicle in New York. Having represented a variety of clients in all types of DWI arrests in New York City and Westchester County from Aggravated Driving While Intoxicated to Driving While Ability Impaired, I understand that often time the process may not always seem fair to defendant driver accused of criminal activity. That is, as a DWI criminal defense attorney I must ensure that the prosecution and police are upholding my client’s Constitutional rights rather than just eagerly seeking a conviction because some characteristic of intoxication is believed to be present. After all, you might have a legitimate reason for having bloodshot eyes, being unable to perform a finger to nose test or having the scent of what seems to be alcohol on your breath. It is crucial to ensure that fair and legitimate procedures are used when determining if you, as a driver or operator, was indeed intoxicated or under the influence.

On this very point, I’d like to discuss a recent criminal ruling out of Kings County [Brooklyn]. The case- People v. Andrei Hargobind, 2009KN024543, NYLJ 1202544857362, at *1 (Crim., KI, Decided February 29, 2012)- involved charges of VTL 1192(1) “Driving While Ability Impaired,” VTL 1192(3) “Driving While Intoxicated,” and VTL 1180(A) “Maximum Speed Limits.” The main issue was whether or not The People (prosecution) could introduce at trial the results of a “portable intoximeter breath test” given to the defendant at the time and place of his arrest (along the highway).

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As an experienced New York DWI lawyer, I have served many clients who faced drunk driving charges (a.k.a. driving while intoxicated, driving while under the influence, operating a motor vehicle while intoxicated) under New York’s Vehicle and Traffic Laws (VTL) 1192. I have seen many fact patterns and legal issues when representing these clients throughout New York–be it in Manhattan, the Bronx, Brooklyn, Queens, or out in a surrounding county such as Westchester. Naturally then, I was very intrigued when I came across a unique fact pattern in a case from Richmond County (Staten Island) that raised an interesting legal question that has seemed to “pop” up more and more often over the past few years in the DWI context as well as in other arrests. That case is People v. Iryna Tashbaeva, 2011RI003472, NYLJ 1202541705231, at *1 (Crim., RI, Decided January 31, 2012) issue: search and seizure.

In Tashbaeva, the defendant was charged with Operating a Motor Vehicle While Intoxicated pursuant to NY VTL 1192.2 and NY VTL 1192.3. These standard Driving While Intoxicated (DWI) charges are misdemeanors, which are considered a crime and will stay on your permanent record. The former crime is charged when your arrest for DWI or DUI relates to a “blow” of .08 or higher while the latter crime involves “common law” or “refusal” DWIs where there is no scientific reading of BAC. If it is a first time offense, the penalty is a fine of $500 to $1,000, no more than one year in jail, a mandatory license revocation for six months, a potential of three years probation, a driver responsibility assessment of $250 a year for three years, and a requirement to attend a Victim Impact Panel. Further, in order to reinstate your ability or right to drive, you will have to take the DDP. In short (and not surprisingly) getting convicted for DWI has serious long-term consequences far beyond the next day’s hangover.

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Facing a Drunk Driving, DUI or DWI criminal arrest in New York can be an extremely frightening experience for any individual especially for an accused who does not have an experienced New York DWI lawyer at their side. Whether one is arrested and charged with Driving While Intoxicated in Manhattan, Queens, Brooklyn, the Bronx or out in the counties of Westchester or Rockland, the consequences of a conviction can be severe and life-changing. Therefore, when facing any of the DWI crimes found under NY Vehicle and Traffic Law (VTL) 1192, it is extremely important to understand your legal rights so that you can mount the best possible defense. In this blog post I want to explore whether a New York court will allow the prosecution to utilize the results from a portable breathalyzer or intoxilyzer administered by the arresting officer during an initial stop at a DWI trial.

A recently decided New York County (Manhattan) criminal case, took up this exact legal issue. In People v. Jones, 2010NY061507, NYLJ 1202504258080, at *1 (Crim., NY Decided July 18, 2011) the defendant, Kareem Jones, was tried before a jury on charges of Driving While Intoxicated (DWI) pursuant to NY VTL1192(3) (also called “Common Law DWI”) and Driving While Ability Impaired (DWAI) pursuant to NY VTL 1192(1). As you might expect, one is guilty of DWI when they operate a motor vehicle in an intoxicated condition. If convicted the defendant can face up to one year in jail, a suspension of their license, fines, and probation for three years. Further, the law requires that an interlock device be placed on the convicted’s vehicle. On the other hand, one is guilty of DWAI if they operate a motor vehicle while impaired by the consumption of alcohol. DWAI is an infraction and is often charged as a lesser offense of the other DWI crimes listed under VTL 1192.

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Sometimes, as a criminal defense attorney in New York, the best way to zealously represent your client against criminal charges is to challenge the admissibility of evidence before the trial begins. This strategy can be particularly effective when a defendant faces any one of the Driving While Intoxicated (DWI) charges listed under NY Vehicle and Traffic Law (VTL) 1192. It is important to remember that no matter its weight or strength, if the evidence (whether it be contraband found on a defendant or statements made by him/her) was not obtained by legal means by the police, then it will not be admissible in a criminal court. That is, if an individual’s Constitutional rights were violated in the apprehension of evidence, whether it be during a New York DWI, DUI or other criminal arrest, then it will be excluded. A recent case in the Kings (Brooklyn) County Criminal Court, People v. Licelle Lovelle, 2010 KN068463 NYLJ 1202516648515, at *1 (Sup., KI, Decided September 14, 2011) raised some very interesting legal issues regarding the admissibility of evidence in a DWI case. Whether or not this case is useful in your tool box when defending against a drunk driving arrest is something worth exploring with your criminal lawyer.

Ms. Lovelle was charged with Operating a Motor Vehicle While Under the Influence of Alcohol Or Drugs and other DWI charges pursuant to VTL 1192 including Driving While Impaired – VTL 1192.1, Driving While Intoxicated Per Se – VTL 1192.2, and “Common Law DWI” – VTL 1192.3. The defendant’s criminal lawyer called for a suppression hearing arguing that the arresting officer violated the defendant’s Constitutional rights while obtaining evidence. Specifically the defense argued that Lovelle’s 5th Amendment rights were violated because the officer took statements without issuing proper Miranda warnings.

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New York criminal lawyers and New York DWI attorneys are often confronted with defending clients against numerous “types” of DWI and DUI charges. Whether the drunk driving crime is Common Law DWI, Aggravated DWI or Per Se DWI, a NY criminal attorney has to be prepared to attack not only the drunk driving charge, but the basis or foundation of the police officer’s arrest.

In an all too common scenario, maybe you were speeding up the FDR on Manhattan’s East Side, or maybe you gassed your car a little too much flying up Flatbush Avenue in Brooklyn. Unfortunately, all of a sudden- when it’s already too late- you see a police car out of the corner of your eye. By the time you spot the vehicle, the sirens are blaring and moments later you are lamenting the possibility of a mammoth speeding ticket. Whether you are out in Westchester or Rockland County, or closer to the City in the Bronx Manhattan, Brooklyn, or Queens, it should not merely be the speeding ticket that concerns you if you have had the proverbial “couple of drinks.” While you certainly have greater reason for concern, the question your DWI lawyer will confront is whether your routine speeding stop is sufficient basis to “blow” up your traffic case into a conviction for Driving While Intoxicated pursuant to Vehicle and Traffic Law 1192. In this blog post I want to examine a recent DWI and VTL 1192 case that touches on the subject. More broadly, we will address what kind of evidence can be used to obtain a conviction for Driving While Intoxicated pursuant to VTL 1192.

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