Changes to the New York State DWI Laws

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.

During a trial the government needs to prove each and every element of a crime.  In cases such as petit larceny, assault, weapons possession, driving with a suspended license (AUO) (511(1)(a)) and other similar crimes a lab report is not needed.  But in cases such as DWI, DWAI, DWAI drugs and drug cases such as criminal possession of a controlled substance and criminal sale of a controlled substance a lab report will be  needed to be introduced at sometime during the trial.

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.

In New York State if a motorist is involved in an automobile accident and does not report that accident it can open the motorist up to criminal prosecution.  There are two very different types of charges under the Vehicle and Traffic Law for leaving the scene of an accident without reporting.  As white plains felony charges lawyers and traffic violations attorneys we want you to know the different classes of offenses and potential sentences for each.

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.

Illegal Police Search

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.

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.