Articles Posted in DWI and Traffic Offenses

New York State laws are tough when it comes to Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Police, prosecutors, and judges strictly enforce these types of drunk driving offenses, which are listed under NY Vehicle and Traffic Law (VTL) 1192. Most New York criminal defense attorneys, when representing clients facing DWI crimes in Manhattan, the Bronx, Brooklyn, Queens, or Westchester County, will often try to broker a plea agreement with the respective District Attorney’s Office. The hope is to lessen the potential punishment and fines, avoid jail time and/or a long-term loss of the defendant’s driver’s license. Further, because of the recent changes in New York DWI law (see Leandra’s Law) that require the installation of an ignition interlock device, it is always critical to identify the best defense to a DWI or DUI arrest to mitigate collateral consequences. While pleading a case to a lower offense may be the best defense, there are other viable options to consider when mounting a defense to a New York DWI or DUI charge. For instance, what if the entire police stop was deemed unconstitutional as an illegal search and seizure? A recent case from the criminal court in Geneva, New York brought to light this very interesting – and case specific – legal question.

The case, People v. Palermo, NYLJ 1202519418737, at *1 (City of Geneva, Decided September 28, 2011), involved a man who was arrested after failing a series of sobriety field tests. Employing a savvy tactic, the defense requested a Probable Cause and Suppression Hearing, contending that the police officer lacked probable cause to arrest the defendant. Let’s pause from the case for a moment for a Constitutional Law refresher. The Fourth Amendment of the United States Constitution guards citizens against any unreasonable search and seizure. Over the years the Supreme Court has outlined the parameters of what is reasonable and what is unreasonable. Generally, a police officer must have much more than a “hunch” to stop a driver on the road, and, obviously, an officer must have probable cause to ultimately arrest the driver. Though probable cause can be a fuzzy legal standard, the basic idea is that the officer possessed a reasonable belief that a person has committed a crime. Now because the United States likes to protect its citizens’ rights (as does New York!), the judicial system employs what is called the Exclusionary Rule: evidence collected in violation of a defendant’s constitutional rights, or any “fruits” of the illegal search or seizure, will be inadmissible (excluded) from a prosecution in a criminal court.

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In New York City as well as the outside counties of Westchester and Rockland, Drunk Driving (a/k/a DWI or DUI) is a crime that is routinely prosecuted. Unlike intentionally malicious crimes, DWI allegations found in VTL 1192 are often alleged against hard working, honest and generally law abiding people who may have had a lapse in judgment. Fortunately, DWI lawyers in New York who are experienced in defending clients against drunk driving arrests may be able to protect their client’s limited right to drive while a suspension is pending. Commonly known as a “Hardship Hearing,” if granted by a New York court (it makes no difference whether the DWI allegation occurred in Manhattan, Brooklyn, White Plains or Yonkers), an individual accused of DUI may be able to drive, for example, to and from work and for other limited purposes. Keep in mind that a Hardship Hearing can be granted in cases involving VTL 1192.2 for “blowing” in excess of .08 on a breathalyzer (actually an intoxilyzer) as well as VTL 1192.3 cases as long as the latter is not for a refusal,

The Hardship Privilege: VTL 1193(2)(e)(7)(e)

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Drunk Driving in New York – whether called DWI or DUI – is such a serious crime in New York City and throughout the State of New York that specific court rooms are set up solely to prosecute alleged drunk drivers. Many of these defendants wondered at the time of their arrest whether or not they should “blow” into a breathalyzer or intoxylizer. When I first started my career as a Manhattan prosecutor I heard this question asked and I routinely hear it asked to me today as a criminal lawyer. In fact, New York DWI lawyers and DUI attorneys constantly are bombarded with the question of whether or not a person should “blow” or refuse to take the breathalyzer when arrested for DWI. So what is the answer? Should you or should you refuse or blow when arrested for VTL 1192?

Background on New York City DWI Arrests First, it is imperative to understand that when you are initially arrested for Driving While Intoxicated in New York, police officers often have a machine in their vehicle. The result from this breathalyzer is not admissible in a New York criminal court. Therefore, whether you blow a .16 or .06, it will not be used against you in a court proceeding. However, the reading obtained will assist in forming the basis or probable cause for your ultimate VTL 1192 or DWI arrest.

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While not as commonly seen by DWI lawyers in the New York City area, Vehicle and Traffic Law 1192(4), Driving While Ability Impaired Drugs, is no less serious than an arrest for any other DWI or DUI crime. Having said that, those attorneys not experienced in New York’s drunk driving and drinking and driving laws can further the misinformation about this offense. The following blog entry will address some of the issues and elements of this crime. As always, please remember that this blog entry is no substitute with an in depth consultation with your own New York criminal lawyer.

The Elements of VTL 1192(4) – Driving While Ability Impaired Drugs

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In New York City it is routine that an arrest for DWI, DUI or driving while intoxicated is accompanied by an on the scene intoxilyzer or BAC breath test. In other words, before you ever meet with your criminal lawyer or are handcuffed in the back of a police car, officers with the NYPD will administer an intoxilyzer test in the field. Although prosecutors, and DWI lawyers, often cite the results of this test to their advantage when possible, the legal question is as follows:

Can a breathilyzer or intoxilyzer test result be taken at the scene of a DWI arrest be used against an individual charged with a New York DUI crime such as VTL 1192.2 (Driving While Intoxicated) or VTL 1192.2-a (Aggravated Driving While Intoxicated)?

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We have all done it and we usually don’t need the assistance of a New York criminal defense lawyer. Usually, the honk of the car behind us is a sufficient reminder that the red light has now turned green and we need to put the pedal to the ground. Maybe we were looking at the radio or maybe we were engaged in a heated conversation (not on a hand held mobile, of course). Regardless, we responded slowly to the change of the light from red to green. While this delay is often attributable to carelessness, a driver in Nassau County argued that his failure to turn on a green light did not give police probable cause to stop him and ultimately arrest him for Driving While Intoxicated (DWI / DUI) in New York. In his particular case, the question asked and ultimately answered by the court was whether or not the momentary delay in his response established probable cause for the police to stop and arrest him.

In People v. Martinez, 2010NA023365, the defendant was charged with DWI, pursuant to Vehicle and Traffic Law section 1192(2) and impeding traffic, pursuant to Vehicle and Traffic Law section 1181(a). It was alleged that while standing at a red light, which ultimately turned green, the defendant failed to immediately turn. Instead, he paused with significant enough time for two vehicles to go around him. The third vehicle behind the defendant was a police officer. After about thirty seconds as the light turned yellow, the defendant turned his vehicle. After following the defendant for a couple of blocks, the officer pulled him over. There was no testimony by the police officer (the prosecutor should have brought this out) about oncoming traffic, the fashion of the defendant’s driving (did he cross over the white or yellow lines?) or whether or not the defendant used his turning signal.

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New York DWI and DUI Laws (Driving While Intoxicated and Driving Under the Influence) are codified in the Vehicle and Traffic Law. More specifically, New York VTL section 1192 is where the various charges for drunk driving can be found. Regardless of the particular subsection, an experienced New York DWI attorney will tell you that the critical element of any DWI or DUI charge is that the person accused must be “operating” the motor vehicle. This operation does not mean the person must actually be driving the vehicle. In other words, the car need not be moving down the street or highway as the defendant is applying the gas and steering the vehicle.

To better understand the difference between “driving” and “operating,” consult with your New York DWI lawyer who can explain the charges against you and how the evidence in your case does or does not fall within the bounds of the law. Having said that, the following article may be a starting point to educate yourself so you can vet your case with your counsel and he or she can properly advise you.

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Starting December 15, 2010, if you are convicted of DWI or DUI (Driving While Intoxicated) in Westchester County, New York, you will have another collateral consequence to deal with beyond your criminal record. Whether it is in White Plains, Yonkers, Mt. Kisco or any other municipality, if you are arrested by a Westchester County Police Officer and you are convicted of any DWI crime found within VTL 1192, a local allow permits the seizure of your vehicle. To be clear, the law only applies to DWI convictions associated with the Westchester County Police as opposed to Driving While Ability Impaired (a violation and not a crime) or arrests made by local municipal police officers or New York State Troopers.

It remains to be seen whether this law will be challenged and many issues are certain to arise.

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I previously addressed New York’s Leandra’s Law as it relates to new offenses and crimes in the realm of Driving While Intoxicated (DWI / DUI) pursuant to New York Vehicle and Traffic Law section 1192. The two major changes to the law are that is now an automatic felony to perpetrate a DWI with a child fifteen years old or younger in the vehicle (VTL 1192.2-a(b) / 1192(2a)(b)) and if one is convicted of DWI one must install an ignition interlock device in one’s vehicle. Both of these laws have been addressed in earlier entries. Information can be found through the respective links.

This entry will address the new statutes and crimes established by the legislature in New York for those accused of disobeying the new ignition interlock device laws. Each of the following DWI crimes relating to the circumvention of an ignition interlock device in New York are “A” misdemeanors.

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Leandra’s Law in New York has made the consequences of a misdemeanor Driving While Intoxicated (DWI or DUI) conviction that much more severe. If it wasn’t clear that prosecutors and judges in New York have had a zero or minimal tolerance policy for the crimes of Vehicle and Traffic Law (VTL) 1192, Leandra’s Law has done away with those questions. As of August 15, 2010, anyone convicted of a DWI misdemeanor not only faces the potential fines, programs and other penalties, but now one must place a mandatory ignition interlocking device on one’s car for at least six months.

The ignition interlock device required by Leandra’s law must be blown into prior to the car starting. Moreover, at random times during the vehicle’s operation, the device requires a sampling to prevent the vehicle from shutting down. It is interesting to note that not only must the individual convicted of New York DWI / DUI (VTL 1192) have this device placed in their vehicle, but they are not permitted to drive other vehicles that do not have the apparatus set up. In the event you do so or tamper with the interlock device, you will face new and additional misdemeanor charges.

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