Driving While Intoxicated and the Field Sobriety Tests

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.

• THE TRAFFIC STOP

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.

A topic of usual concern for clients involved in both Family Law Cases and Criminal Defense Cases is the issuance of an order of protection by the court.  The attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Family Courts and Criminal Courts of Westchester, Orange, Rockland, Dutchess, Putnam, the Bronx, Brooklyn, Queens, and New York to defend clients against the issues that arise when an order of protection is issued.

An order of protection may be granted in a number of different cases pursuant to various criminal and civil statutes, including Criminal Procedural Law sections 530.12(1) and 530.13(1); Articles 3, 4, 5, 6, 7, 8 and 10 of the Family Court Act; and Section 240(3) of the Domestic Relations Law.  Generally, orders of protection fall under two categories, temporary and permanent.  A temporary order of protection is typically made during the pendency of the action.  A permanent order of protection is usually issued at the conclusion or disposition of the case.  Frequently, temporary orders of protection precede permanent orders of protection.  

New York Law prohibits the extension of an order of protection to a person(s) unrelated to the underlying criminal action.  See People v. Konieczny, 2004 WL 1263762 (N.Y. 2004).  The order of protection may cover the complainant and family or household, but not beyond.  People v. Petrusch, 306 A.D.2d 889.

Orders of protection may also be issued in instances where the person being “protected” by the order opposes the terms of the order of protection and does not want the defendant being barred from contacting him or her.  People v. Monacelli, 299 A.D.2d 916.  This particular event often occurs in cases involving spouses and families. 

In criminal cases, an order of protection may be part of the court’s order allowing for the defendant release from custody.  CPL Sections 530.12 (family offenses) and CPL 530.13 (non-family offenses).  At times, a court may issue an order of protection on its own, based upon “good cause shown”, when an accusatory instrument (complaint) is filed by the prosecution.  In such an instance, the defendant has a right to contest the issuance of the order of protection in those circumstances where a constitutionally protected right, such as being excluded from the defendant’s residence or being prohibited from contacting the defendant’s family, is restricted.

Also, a court can suspend or revoke a pistol permit and possession of firearms.  A defendant has a right to hearing on the issue of firearms.  It should be noted that a violation of an order of protection due to firearm possession is also a violation of federal criminal law.

By understanding these important aspect of the law as they pertain to orders of protection, the criminal, matrimonial and family law (child custody, child support, family offense) trial attorneys of Riebling, Proto & Sachs, LLP continue to successfully assist their many clients.

If you or someone you know needs the assistant of a criminal, family or matrimonial attorney, please contact Riebling, Proto & Sachs, LLP for a free consultation.  The firms trial attorneys regularly appear in the courts of Westchester, Bronx, Rockland, Putnam, Dutchess and Orange Counties in New York State.

Traffic Tickets and the Best Defense

A common mistake is to look at a traffic ticket in New York and think, all is lost, there can be no possible defense.  Usually there are several defenses to a traffic ticket and as any good criminal defense attorney will tell you it all starts with the traffic ticket itself.

In New York State traffic tickets are written for any crime or violation under the New York State Vehicle and Traffic Law (VTL).  Tickets can be written for moving violations such as speeding, non-moving violations, equipment violations even DWI and DWAI Drugs.  The traffic ticket is the basis for a prosecution and it the starting point for the defense to the charge.

1. The Ticket (Simplified Traffic Information)   

The Ticket is usually a half page document, yellow in color, that a police officer would hand you on the side of the road.  A State Trooper may provide you with a full page ticket (white in color) but usually its the front and the back of the “yellow” ticket on one page.  The front of the ticket outlines the charge while the back has instructions regarding how to respond.  The ticket is also known as a Simplified Traffic Information.

The sufficiency of a simplified traffic information is governed by the criminal procedure law.  Because the traffic ticket is the local court accusatory instrument that provides the least amount of information. the recipient is entitled as a matter of right, upon a timely request, to a supporting deposition.

2. The Supporting Deposition

The supporting deposition is a document that explains the charge in greater detail.  The supporting deposition must be completed by the police officer and must allege all of the elements of the offense.  The statute provides that the allegations may be made upon personal knowledge or upon information and belief providing reasonable cause to believe that the driver committed the offense charged. 

3. Probable Cause

The ticket and supporting deposition together must provide probable cause to believe that the traffic offense in questions was committed.  A supporting deposition that contains boxes checked off by the police officer is sufficient.

4. Time to request a Supporting Deposition from the Police

In some cases a driver will receive a supporting deposition from the police with the traffic ticket, usually issued by the State Police, but in most instances the police officer will only provide a traffic ticket without a supporting deposition.

The request a supporting deposition must be made within 30 days of the court appearance noted on the ticket.  Where the charge is a misdemeanor such as DWI or reckless driving the driver may request a deposition beyond the 30 day period up to 90 days with permission of the court.

5.  The Plea 

Always plea NOT GUILTY to a traffic ticket.  In most cases an experienced criminal defense lawyer can get the charge dismissed or reduced.  A guilty plea is the same as if you went to trial and were found guilty by the judge or jury.  Your best option is to contact one of our experienced criminal defense lawyers to aggressively attack the ticket and its contents even before appearing in Court.

A plea can be entered in court on the date at the bottom of the ticket or by a signed statement on the ticket by mail.  When pleading not guilty by mail, the plea must be sent by registered or certified or first-class mail and within 48 hours of receiving the ticket .  A driver may plea not guilty by mail and request a supporting deposition.  FAILURE to act in a timely matter will cause a loss of the right to the supporting deposition.

6.  Service of the Supporting Deposition

The deposition must be provided to the driver within 30 days of the court’s receipt of the request for it OR 5 days before trial whichever comes first.

7.  Failure to provide a Supporting Deposition

When the court orders the filing of a supporting deposition and the police officer fails to comply in a timely manner the ticket is rendered insufficient on its face and may result in a dismissal. 

The above is one of the basic and best defenses to traffic tickets.  Although there are many defenses this requirment always remains at the core.  It is important to have a traffic ticket attorney since the police officer may try to submit a late supporting deposition or other method to prevent the case from being dismissed.  Our traffic ticket attorneys are prepared to protect your rights and provide you with the best possible criminal defense either in a traffic ticket case, DWI case or other criminal matter.

If you have questions regarding your criminal matter or traffic ticket case call one of our attorneys for a free consultation. 

The best defense is a strong understanding of the criminal procedure law and how each court operates in New York State.

BAC READING OF .08%

At an arraignment on a Driving While Intoxicated (DWI) charge the Court is required to suspend your New York State driver’s license or privilege to drive in New York State if a Blood Alcohol Contant (BAC) reading is at or above the legal limit of .08%.

There are certain findings a Court must make before they suspend you license pending prosecution but that will be addressed in another blog post.   However in sum, if the Court finds the paperwork sufficient that your BAC was .08% or greater they will suspend.

NEW YORK PROMPT SUSPENSION LAW

The New York Prompt Suspension law is the law which suspends your license at arraignment.  Many times an accused will appear at arraignment without an attorney and be told to surrender their license due to this law.  Almost everyone hands over their license without a full understanding of what just happened and at that moment realize they need an attorney.

Under the Prompt Suspension Law you will not be able to drive for at least 30 days.  In most cases the accused relys on their driver’s license and the consequences of not having a license to drive are devastating.  The Court has recognized the impact of not having a driver’s license for at least 30 days and has allowed the Courts to grant a “Hardship Privilege” to allow the accused to drive under certain curcimstances until the DWI paperwork is processed by DMV and the accused can apply for a Conditional License. Usually this takes 30 days.

THE HARDSHIP PRIVILEGE

VTL 1193(2)(e)(7) governs the Hardship Privilege.  If the Court finds that the prompt suspension of the accused driver’s license will result in a “extreme hardship” the court must issue such suspension but may grant a Hardship Privilege to allow the accused to drive under certain circumstances.  The accused driver’s license is still suspended but a document is issued to the accused from the Court at arraignment allowing the accused to drive for a limited purpose.

What is an Extreme Hardship?

An Extreme Hardship is an inability to find alternative means of travel to or from the licensee’s employment, school or medical treatment.

In order for the accused to prove this Extreme Hardship they are entitled to a hearing within 3 days of the arraignment.  This fact is rarely told to an accused without an attorney and is a vital right to protect ones driver’s license.

The accused must present proof at the Hardship Hearing that there is no alternative means of travel such as family, friends, co-workers, taxis, buses or trains.  The accused must also have some evidence to corroborate that without a license it will be an Extreme Hardship in that they may lose their job, fail school or miss medical appointments.  A witness to corroborate these facts is usually necessaryat the hearing.  The District Attorney will have an opportunity to be heard on this issue and cross examine any witnesses including the accused.

THE PURPOSE OF A HARDSHIP LICENSE

The Hardship License is for a limited purpose.  The license will not allow an accused to drive as part of their employment (taxi driver, traveling salesman) or travel at inconsistent hours.  Also, a Hardship License can not be used to operate a commercial vehicle.

It is always a good idea to contact a DWI lawyer immediately after the arrest.  In some cases I have had my clients call me at the police station.  At Riebling, Proto & Sachs, LLP our DWI lawyers are always available to answer your questions and prepare you for every court appearance.  We offer a Free Consultation and can appear in Court on a moments notice.

The best DWI defense is to be prepared at every stage of the process.  Our attorneys protect your rights in every type of DWI case and will be happy to meet with you.  If you have any questions or concerns please feel free to contact us.