New DWI Felony

It is now a class “E” felony to drive while intoxicated (DWI) with a child 15 years of age or younger in the car.  In addition, if the defendant is the parent, legal guardian, or custodian of the child in the vehicle, the police MUST file a report with Child Protective Services (CPS). 

Also, in Westchester County and other surrounding counties such as Rockland, Putnam, Dutchess, Orange and the Bronx it is common to see an additional charge of Endangering the Welfare of a Child (EWC) for such a DWI arrest. 

This new felony change and the usual accompanying EWC charge are common and place a burden on the defendant not only with respect to a criminal charge but also for school, employment and special licenses in addition to the penalties for DWI.  It is common to have to address most of these penalties even before one is found guilty.   Prompt legal representation is very important to address these issues to aggressively present the best defense.

Ignition Interlock Device — New Law

Beginning on August 15, 2010, courts will be required to sentence defendants after conviction for a DWI offense to probation or a conditional discharge a condition of which MUST be the installation and maintenance of an ignition interlock device in any car owned or operated by the defendant for the duration of the probation or conditional discharge or 6 months, whichever is longer.

The cost of the installation and maintenance must be paid by the defendant unless the court finds that the person is financially unable to afford the cost in such cases the court may waive the cost or impose the cost pursuant to a payment plan.

DWI Law Updates

For more information about the DWI law changes or DWI laws in New York State in general feel free to contact our firm.  We appear in all courts in New York including Westchester, Putnam, Dutchess, Orange, Rockland and New York City.

Criminal matters in New York State are governed by a statute of limitations.  The time within which a criminal action may be brought is the statute of limitations.  Most of the time the statute of limitations refers to the time allowed to bring a civil action however, the similar legal theory also applies to the prosecution of a criminal offense. 

Generally the more serious the crime the longer the prosecution has to bring the charges.  In the case of Class A felonies, such as Murder, there is no limitation on when the action may be commenced.

STATUTE OF LIMITATIONS

• Class A Felony — No time limit, CPL 30.10(2)(a)
• Other Felonies — 5 years, CPL 30.10(2)(b)
• Misdemeanor — 2 years, CPL 30.10(2)(c)
• Violations — 1 year, CPL 30.10(2)(d)

Generally after a crime is committed charges must be filed within the above time frames. CPL 1.20(17)

Speedy Trial

Usually in a criminal matter charges are filed with the Court almost immediately.  However, an accused has a right to a speedy trial once the charges are filed with the Court.  The United States Constitution (6th Amendment) and by law in New York State require a speedy trial.  The laws governing speedy trial are some of the most complex in all criminal law however this overview should give you a good understanding of the speedy trial laws in New York State. 

These laws are litigated in every county including Westchester County, Orange County, Putnam, Rockland and Dutchess County.  In local criminal courts such as White Plains City Court, County Court, Yonkers, Greenburgh, Bedford, North Castle, Mount Vernon, Newburgh, Goshen, New Windsor, Southeast, Kent and other similar Courts all keep records of speedy trial time.   

The right to a speedy trial is broken down into two areas a Constitutional Speedy Trial Right and a Statutory Speedy Trial Right.

Constitutional Speedy Trial

The constitutional speedy trial looks to the length of time between the commencement of the action against the defendant and the commencement of trial.  A due process argument may be made if an inordinate amount of delay has occurred between stages in a criminal matter such as between commission of the offense and arrest.  This applies to all offenses.

To usually obtain dismissal of a criminal matter on constitutional speedy trial grounds in New York State any argument must include a showing that the accused has been prejudiced by the prosecutions failure to prosecute the charge in question.  If the delay is significant (usually a number of years) prejudice need not be shown unless there was justification for the delay (People v Guzman, 227 AD2d 219).

The Court will consider five factors to determine dismissal on Constitional speedy trial grounds.  Those factors include:

1. The length of the delay
2. The reason for the delay
3. The degree of actual prejudice to the defendant
4.  The seriousness of the underlying charge
5. the extent of any pretrial incarceration

See, People v Taranovich 37 NY2d 442 and People v Vernace 96 NY 2d 886

Statutory Speedy Trial under CPL 30.30

CPL 30.30 the speedy trial statute requires the People announce their readiness for trial within a certain amount of time after the action has been commenced against the defendant.  The important dates are the date of the commencement of the action and the date on which the prosecution announces readiness for trial.

The trial does not actually have to begin but if the people do not or can not announce readiness the case will be dismissed as a violation of the statutory speedy trial law.

CPL 30.30 —  Time restrictions

• Felony — 6 months
• A Misdemeanor — 90 Days
• B Misdemeanor — 60 Days
• Violation — 30 days
• Traffic Infraction — N/A

There are excludable periods of time that will stop the speedy trial clock and the prosecution will not be charged with the delay.  Some of the excludable time includes:

• Reasonable period of delay attributable to other proceedingsconcerning the defendant such as a competency proceeding, demands to produce, pre-trial motions, appeals. 
• Adjournments at the request of the defendant or consented to by the defendant.

• The defendant is absent or unavailable, such as a bench warrant or in jail in another jurisdiction.

• Time that the defendant is without counsel.

The Best Speedy Trial Defense

The best speedy trial defense involves a calculation of time starting with the date of the alleged crime itself and determining what time is chargeable to the prosecution as a violation of either statutory or due process rights.

Some cases may be dismissed in court others require a written motion.  A clear understanding of the various time periods is required.

All felonies in New York State must be charged by either a Felony Complaint, Indictment or a Superior Court Information (SCI).  In Westchester County, Rockland, Orange, Putnam and Dutchess Counties it is common to see a felony charged by way of a Felony Complaint.  However, in New York City, Bronx, Queens and Brooklyn Felony Complaints are rare. 

FELONY

First, some basic information about Felony Charges.  A Felony is a charge that can result in State Prison upon conviction usually over one year.  In New York State felonies are the most serious crimes.  Felonies are classified from the most serious “A” felonies to the less serious “E” felonies.   All felonies have the potential for a state prison sentence and are generally more complex then lesser crimes.

Accusatory Instrument

An “Accusatory Instrument” is the generic term that describes a variety of documents used to accuse a person of a crime.  A Felony Complaint, Indictment and Superior Court Information are all “Accusatory Instruments”.  The Accusatory Instrument sets forth the crime charged and in most cases the facts supporting the crimes charged.

Felony Complaint

A felony complaint serves as the basis for the commencement of a criminal action, but NOT as the basis for a prosecution.  CPL 100.10 and CPL 1.20.  Basically, a Felony Complaint can start a case but not finish it.  In order for the case to be brought to trial an Indictment or Superior Court Information is necessary.

In Westchester County, Putnam, Dutchess, Rockland and Orange counties in a local justice court such as Bedford, White Plains City Court, Greenburgh, Yonkers, North Castle, Port Chester in Westchester County a Felony Complaint will be filed by the police and the District Attorney.  When an accused appears in those courts or any justice court a felony complaint will charge a felony.  If an accused appears in County Court such as White Plains, Westchester County Court at 111 Dr. Martin Luther King Jr. Blvd. or in Goshen, New York in Orange County Court 255-285 Main Street a felony charge is usually prosecuted by way of an Indictment or Superior Court Information.

Indictment

An indictment occurs only after a grand jury has voted to prosecute a charge(s) against an accused.  The Grand Jury Process will be discussed in another blog but for these purposes the point is that a felony must be prosecuted by way of indictment after a grand jury vote.

Superior Court Information

A Superior Court Information (SCI) is an instrument that a prosecutor can use to charge a felony but only if the accused waives their right to a Grand Jury.  An SCI is usually a accusatory instrument filed by the District Attorney during a plea bargain on a felony charge in County Court.  As part of that plea bargain the accused must agree to waive prosecution by Indictment and therefore a Grand Jury presentation.  Since this is a plea bargain it is usually agreed to prior to Court.

Speedy Trial and Discovery Concerns

Since a Felony Complaint is not a trial instrument, a prosecutor in local court can not announce readiness for trial under CPL 30.30.  Such and announcement would be illusory.  Readiness for trial on a felony charge requires an indictment.

Where a felony is charged in local court the accused is arraigned on the felony and arraigned on the felony again after an indictment.  Once the arraignment after indictment defense counsel will be able to obtain discovery, a bill of particulars, engage in motion practice and assert certain defenses.

Best Felony Defense

The best defense on any felony charge is to get as much information from the prosecution as possible before an indictment.  By way of policy several District Attorney Offices are less willing to negotiate with an accused after an indictment.  This is true in Westchester County, Putnam, Dutchess, Rockland and Orange Counties.  Of course, every case is different but the main concern is to avoid indictment if possible since the penalties are much more severe than a charge of a misdemeanor or violation.  Also, an accused does have the right to testify at a grand jury presentation and in some cases this is absolutely essential.

If an Indictment has already been handed down without a felony complaint it is very important to obtain all of the discovery in the case quickly and review the file with the accused to determine the best defense.  Afterwards, the criminal defense attorney should immediately contact the district attorney to determine their position on the case, and get any more information not obtained in discovery to determine the strength of the prosecutions case.  Only then can accused make an informed decision regarding how to proceed.  Lastly, it is absolutely essential that the accused and their attorney keep in contact with each other on a regular basis.

I hope this information has proven helpful.  The differences between Felony Complaint, Indictment and Superior Court Information (SCI) are important and should be reviewed carefully since there are so many different consequences at each level.

A second DWI charge within 10 years could be prosecuted as a felony.  This felony prosecution is discretionary unlike a predicate felony — second felony offender, that the prosecution must pursue.

Both predicate felony offender status and felony DWI invlove a conviction within 10 years. 

Predicate Felony

In calculating the time for a predicate felony, the law states that “sentencemust have been imposed more than 10 years before the commission of the felony” PL 70.06(1)(b)(iv). 

Felony DWI Law

The felony DWI statute refers to committing the new offense “after having been convicted of” the predicate crime.  VTL 1193(1)(c)(i).

This is an important distinction.  It is very important in either a DWI felony sitiuation or a Felony under the Penal Law to know this difference.

A “conviction” is defined in the Criminal Procedure Law (CPL) as “the entry of a plea of guilty to, or a verdict of guilty upon an accusatory instrument” CPL 1.20(13).  A judgment is the conviction AND the sentence imposed.  Sometimes in criminal court the conviction will be months before the sentence.  Usually this occurs when the Court orders a pre-sentence report from the Department of Probation.

Felony DWI Example

Where a motorist was sentencedon the prior DWI and occurred within the 10 year limit, but the motorist plead guilty or was convicted at trial more than10 years ago, felony DWI status should not apply.  Therefore, where sentencing is adjourned this time delay should not be used at a later point to increase a seconf felony DWI to a felony.

Misdemeanor DWI

In any DWI offense this rule will apply.  For example, two prior DWAIs within 10 years raises the current DWAI to a Misdemeanor from a violation.

Defense of a Felony DWI

In order to present the best criminal defense a criminal defense attorney in Westchester, Orange, Rockland, Putnam counties or elsewhere need to be aware of the date of arrest, conviction and sentence in order to properly defend a DWI felony charge.

District Attorneys have relied on certified records to introduce certain lab reports in DWI, DWAI, DWAI drugs and other drug cases instead of having the actual lab analyst testify.  This seems to be changing with the most recent US Supreme Court case as outlined below.

Lab Reports at Trial in DWI, DWAI, DWAI Drug  and Drug Cases

At trial for an offense involving any Laboratory Report (usually a drug, DWI or gun charge case) the confrontation clause of the sixth amendment requires a criminal accused to be confronted with the testimony of lab analysts.

The United States Supreme Court in Melendez-Diaz v Massachusetts, 129 S Ct 2527, held that a lab analyst’s certificate is testimonial and can not be admitted unless the analyst was unavailable to testify at trial and the accused had a prior opportunity to cross-examine the analyst.

DWI Blood/Breath Test Lab Reports

In Nassau County after a DWI trial the court sustained the defendant’s objection to the admission of the calibration log of the breathalyzer machine used to test his blood alcohol level as a certified business record and required the prosecution to present live testimony from the lab technicians who preformed the calibration.

The Best Criminal Defense

The best criminal defense is one that holds the government to their burden on each and every element of the crime.  This is especially true of DWI, DWAI, DWAI Drug and other Controlled Substance cases where a lab report is necessary.  In Westchester, Rockland, Bronx, Orange, Putnam and Dutchess counties the government will have their own report usually from the County Department of Lab and Research.  These lab reports must be attacked for their accuracy.  This additional requirement that the government bring the actual analyst into court is helpful to the experienced criminal defense attorney and the accused since it opens the door to in depth cross examination.

White Plains City Court Criminal Defense 

In the City Court of White Plains there has been an increase use by the department of labs and research in Westchester County of “preliminary” lab reports to support DWI, DWAI, DWAI Drug and other drug charges.  These lab reports are the very reports that need to be scrutinized for their accuracy and demanding the actual lab analyst to testify will help any criminal defense.

Southeast DWI Criminal Defense

Likewise, for any criminal defense for a DWI, DWAI, DWAI drug charge in busy DWI courts such as the Town of Southeast in Putnam County (Brewster).  These lab reports must be scrutinized as they usually are the prosecutions strongest form of evidence.

Leaving the scene of a PROPERTY damage accident without reporting

VTL 600(1) provides that ” Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property … due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage occurred, stop, exhibit his or her license and insurance identification card for such vehicle, … and give his or her name, residence, including street and number, insurance carrier … and license number to the party sustaining damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer.”

A violation of VTL 600(1)(a) is a traffic infraction punishable by :

1. A fine of up to $250;

2. Up to 15 days in jail; or

3. Both

Leaving the scene of a PERSONAL INJURY accident without reporting

VTL 600(2)(a)  “Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification … to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.”

The level of the offense and the punishment depends upon if the mororist has ever committed this crime in the past and also the level of injury or death of the party.  Leaving the scene of a Personal Injury Accident is a CRIME and ranges from a class “B” misdemeanor to a class “D” felony.  The Sentences for Misdemeanors and felony range from fines, probation to jail.

Leaving the scene of a PERSONAL INJURY accident is a fingerprintable offense and a crime.  Any conviction will result in a license revocation and the motorist will not be permitted to obtain a conditional license.

In any criminal defense its important to know the classes of misdemeanors and the types of misdemeanor crimes including felonies.  Here in this case leaving the scene of a property damage accident is a noncriminal offense while leaving the scene of a personal injury accident is a crime.

If you have any questions how these charges are defended or how they relate to other charges such as driving while intoxicated (DWI) or driving while ability impaired (DWAI) contact my office for a free consultation.

In a DWI arrest the police will need to use a method to test the Blood Alcohol Content (BAC) of a driver’s blood to determine if the driver is intoxicated or impaired after consuming alcohol.  The most common method is to have the motorist blow into a machine to test the alcohol level in the motorist blood.  The machine looks like a large computer and has a keypad in the front.  After blowing into a tube for a few seconds the machine will test the motorist’s breath and submit a result to the police.   The machine’s calibration in any DWI test must be investigated and attacked.

Proof of Breathalyzer Calibration

In New York State the proof necessary by the prosecution in a DWI case is that the Breathalyzer was in proper working order at the time the test was administered to the motorist.  The prosecution has this burden at trial and must prove this element beyond a reasonable doubt.  The prosecution typically introduce into evidence a document entitled “record of calibration/maintenance.”  This is also called the certificate of calibration of the Breathalyzer.

What is a Calibration?

In the field of DWI defense “calibration” refers to the inspection, calibration and repair of the breath test devices by specially trained technicians at facilities such as the New York State Police Crime Laboratory or the New York State Division of Criminal Justice Services Office of Public Safety.  This calibration is NOT the weekly test conducted by the police officers at the police station.  This is a much more complex test for calibration.

Suppression of a Breath Test due to Calibration

In People v Todd, 79 Misc.2d 630, a breathalyzer had not been calibrated for six months and the People failed to establish that the breathalyzer apparatus had been timely calibrated hence the results of the test were inadmissible.  It is incumbent upon the District Attorney to show that the machine was in proper working order.

Todd Six Month Calibration Rule

Although lower courts have expanded the six month rule with respect to the calibration of a Breathalyzer the Court of Appeals has never reversed or altered its six month rule.  This is something that the best criminal defense DWI lawyers must investigate when defending a DWI arrest.

New Breathalyzer Machines

The New York State Police have chosen to calibrate their newest breath test device, the Draeger AlcoTest 7110 MK III (Draeger) only one a year.  Regardless the prosecution must lay a sufficient foundation as to the reliability of the Draeger.  The Todd rule should apply and the government can present expert witnesses to prove calibration.

DWI Defense Lawyers

At Riebling, Proto & Sachs, LLP our DWI defense lawyers investigate every aspect of a DWI arrest.  The best DWI defense will take advantage of every opportunity to limit the government’s case or have the case dismissed outright.  The calibration of the breathalyzer is only one part of the defense to a chemical test of a motorist’s breath test but an important part since the local police have no control over the calibration and usually have no idea how the machine is calibrated.

Free Consultation on all DWI arrests and cases

To have your case reviewed for Free call our office.  We represent clients in Westchester, Orange, Rockland, Putnam, Bronx & Dutchess Counties.  Our attorneys are former prosecutors and dedicated to reviewing your matter and providing you with the best criminal defense.  The Breathlyzer calibration is an important part of a DWI criminal defense and our Westchester County DWI lawyers will review your case, identify the best defense and give you candid straightforward advice.

In Westchester County Court (White Plains) a handgun was suppressed with the consent of the District Attorney due to an admitted illegal search of an automobile by the Rye City Police Department.  The two felony charges for possession of a weapon were dismissed after indictment.

Rye City Police Search of a Vehicle

In the City of Rye a motorist was stopped for making an illegal right turn on a red light (traffic infraction).  After the vehicle was stopped the driver was found to have a suspended driver’s license (VTL 511) and asked to exit the vehicle.  The driver was handcuffed, placed under arrest and seated in the rear of the officer’s police vehicle.  After the arrest the officer began the search of the client’s vehicle and discovered a gym bag next to the driver’s seat.  The officer opened the bag and found gym clothes and a loaded, defaced, handgun wrapped in a sweatshirt.  The defendant was arrested for Criminal Possession of a Weapon and Aggravated Unlicensed Operation of a Motor Vehicle (VTL 511).

The Illegal Search

After an investigation by criminal defense trial attorney, Andrew Proto it was determined that the police had no reasonable cause to search the vehicle.  There could be no safety concerns for the officer since the client was handcuffed in the back of the police vehicle.  The District Attorney claimed that the officer was simply inventorying the contents of the vehicle as the vehicle was about to be impounded and no illegal search was conducted.  However, the officer admitted that he had not searched the bag pursuant to an inventory search but for officer safety.

Motion to Dismiss the Criminal Possession of a Weapon Charge and to Suppress the Handgun

In the United States Supreme Court case of Arizona v Gant _ US_, WL 1045962 (2009), the Supreme Court overturned the search of defendant Gant’s car after he was arrested for driving with a suspended license, handcuffed and secured in the back of a police car.  Criminal Defense trial attorney Andrew Proto, argued the Rye City Case had the same facts as in Gant and any inventory search by the Rye City Police Department was an after thought by the police once the handgun was discovered. 

Suppression

Once the gun was suppressed on consent of the District Attorney the client was no longer facing a minimum five year sentence in state prison.  The best criminal defense is to aggressively defend serious charges such as criminal possession of a weapon and look for any violation of one’s constitutional rights.

The criminal defense trial attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Courts of Westchester, Orange, Putnam, Dutchess and Rockland Counties.  If you or someone you know is facing a serious charge contact our office.  We look to every defense possible and pursue the best criminal defense to protect your rights.  We are always available for a FREE Consultation.

Field Sobriety Tests (FST) are a common method to determine whether there is reasonable cause to believe that a person is Driving While Intoxicated (DWI).  The New York State police, local police and county police use FST as part of any DWI stop and DWI investigation.  In those tests a motorist is asked to step out of their vehicle and engage in a number of physical acts which are designed to test a person’s coordination for the purposes of determining intoxication.  Motorists generally cooperate with these tests and rarely refuse to take these FST.  If the FST are refused your driver’s license will NOT be suspended unlike a chemical test refusal.

In any DWI investigation in New York State, these tests will be offered.  In Bedford Court in Westchester County, White Plains City Court in Westchester County, Yonkers City Court, Southeast (Brewster) Court, or any other court in Westchester, Rockland, Orange, Putnam or Dutchess Counties the Courts will provide a motorist a list of FST at arraignment.  It is usually a form with boxes checked off regarding the test, if the tests were refused and if the motorist passed or failed the FST.  The State Police have a standardized form but local police may used their own form.

What are These Tests?

The FST commonly use include the following:

1. Horizontal Gaze Nystagmus Test (HGN) –  In this test the office asks you to follow his pen with your eyes.  The test looks for an involuntary jerking motion of your eyes.  Although this test can be used by the officer to determine intoxication it is rarely admitted into evidence at trial.
2. The Walk and Turn Test — In this test you are asked to walk heal to toe, turn and walk heal to toe again.  Usually it is anywhere from 1-10 steps.  Rarely is this test given on a flat surface on a painted line.  Usually its on the side of the road with cars driving by at 60-70 miles per hour, at night with the police car lights flashing in the background. 
3. One Leg Stand — The officer will ask you to stand on one leg for 30 seconds.  The officer is looking for swaying, moving arms up more than six inches for balance (most individuals keep their arms to their side making the test very hard), hopping or putting your foot down.
4. Finger to Nose Test — In this test a motorist is asked to stand with their feet together, close their eyes, extend their arms out and touch the tip of their finger to the tip of their nose.
5. ABC Test — In the Alphabet test, the officer will ask the motorist to recite the alphabet test usually from the middle to the end.

The Defense to the DWI, Field Sobriety Tests

There may be additional tests but the above are the major tests a police officer will use to determine intoxication.  The tests are all defensible.  The best criminal defense to a DWI charge is an attack of these tests including:

1. Lack of instructions regarding how to perform the test.
2. Lack of officer demonstration regarding how to perform the test.
3. Conditions during the test, such as performed on a busy highway.
4. The subjective nature of the test.
5. Officer’s presumption of guilt that they are just “going through the motions” before an arrest.
6. The officer rushing the tests.
7. The motorist actually passed the test and the officer marked it as failed.

There are of course more ways to defend the FST test but this is just a general line of attack for the best criminal defense, every person is in a different position.  For example, in the defense of a DWI charge on 684 in North Castle (Armonk), New York the officer allowed a women to take her 2 inch high heals off but was told to perform the one leg stand test and walk and turn test on the side of the road with rocks, dirt and even glass under her feet clearly putting her at a disadvantage.  The defense of a DWI charge is always tailored to your specific facts and circumstances.

Criminal Defense of the Field Sobriety Tests

FST in any criminal defense must be attacked since the District Attorney will use that test as strong evidence of guilt.  Since all the police have to do is check off a box there is the temptation to rush through the tests and check off as many boxes as possible.  That is the first and best criminal defense to DWI, FST.  Our DWI criminal defense lawyers cross examine the administration of the tests and the motorist’s performance but also the validity of the tests as an indicator of intoxication and the subjectivity of the judgment of the police officer.

FST and a Chemical Test Refusal

As a criminal defense attorney and a DWI criminal defense attorney I always prepare the best defense for my clients.  I review the evidence from the District Attorney and determine if they have a strong case or a weak case. 

FST will be used as evidence of guilt but your driver’s license will NOT be suspended if you refuse to take any of those tests.  However, if you refuse to submit to a chemical test your driver’s license will be suspended and you may also face civil penalties.  A chemical test will also be used a evidence of guilt. 

If its one’s goal to minimize the amount of evidence against them at trial and they refuse a chemical test to accomplish this the FST should be refused as well. 

The DWI Arrest

If the police feel you are intoxicated or impaired (DWI) (DWAI) they will make an arrest.  The best course of action after any arrest is to call a DWI criminal defense attorney.  Not only can a lawyer explain your rights to you and the best defense for your case but you should immediately feel better that your lawyer is attacking the case and will do whatever necessary to protect you.

If you or a family member is charged with a DWI related offense call my office for a free consultation.  We regularly appear in the Courts of Westchester, Putnam, Dutchess, Orange, Rockland and the Bronx.

Types of traffic stops by police officers are common question at my office.  Everyone seems to think that you can be pulled over “when you do something wrong” and that’s true but the Vehicle and Traffic Law goes beyond that and makes rules to protect driver’s.  A general understanding of the law will help you be prepared as you drive the roads of New York State and help you protect your rights.

• THE BAD TRAFFIC STOP

The police may NOT stop a vehicle on a public highway for a routine traffic check.  ONLY when the officer has “reasonable suspicion” to believe that a violation or crime is committed may the vehicle be stopped.  People v Ingle, 36 NY 2d 413.  A police officer’s good faith but erroneous belief that a person committed a traffic infraction (failing to signal when exiting a private driveway) will not support a stop.  Byer v Jackson, 241 AD 2d 943.

• TRAFFIC COURT

In New York Traffic Court either at the Traffic Violation Bureau (TVB) or in the local justice Courts, the Courts must evaluate police conduct and determine whether the action taken was justified in its inception and at every subsequent stage of the encounter.  People v Nicodemus, 247 AD 2d 833.  However, a police officer’s failure to issue a ticket for a traffic infraction that was the basis for the stop does not defeat probable cause.  People v Ferraiolo, 309 AD 2d 981.

• DWI STOP AND ARREST

In a DWI arrest the office first needs a reason to pull you over.  Most police officers will find a violation of the vehicle and traffic law such as speeding, weaving out of lane or as a last resort a police officer may use an equipment violation if they suspect a motorist is driving DWI.  Importantly, weaving or swerving IN a lane is not a traffic infraction and does not constitute reasonable suspicion.  People v Culcross, 184 Misc. 2d 67.  A stop for unsafe lane change requires a driver to signal each time when changing lanes as well as turning.  People v Rice, 44 AD 3d 247.  Lastly, stopping a car and approaching it with guns drawn based upon an anonymous report was improper, where there was no reasonable suspicion.  People v Heapps, 13 AD 3d 107.

• REASONABLE SUSPICION

Reasonable suspicion is the standard the police must use to pull over a motorist.  This is always the first line of attack when defending a traffic ticket or a move serious charge such as DWI, DWAI, DUI or even traffic stops that result in other charges such as drug or gun charges.  Reasonable Suspicion is that amount of knowledge sufficient to justify  a stop.

• NEW YORK STATE TRAFFIC VIOLATION ATTORNEYS

If you have any questions about when can the police pull you over contact one of the attorneys at Riebling, Proto & Sachs, LLP.  We offer a free consultation.  Our attorneys regularly appear in the traffic Courts of New York State including the New York TVB and the local justice Courts.  Our main office is in White Plains, New York but we also have offices in the Putnam and Orange Counties.

Our attorneys work to protect your license and insurance rates.

Good luck on the road.