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.

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.

In New York State underage drinking and driving is a serious offense. It is important to contact a skilled DWI defense attorney to protect your or your child’s rights in cases of underaged drinking and driving.

At Riebling, Proto & Sachs, LLP, our criminal DWI defense lawyers are prepared to appear in Court or at a DMV administrative hearing and fight for you. Our main goal is to protect you, your license and insurance rates. We are experienced Westchester Trial Attorneys.

The DWI Laws in New York State are as follows:

The DWI / DWAI Arrest

If you are under 21 years of age, driving and pulled over resulting in a DWI investigation, you will be taken to the local police department or State police barracks for the purpose of taking a chemical test to determine your BAC level.The chemical test is usually a breath test, blood test or urine test.

Once you BAC level has been determined you will be charged accordingly.

Administrative Hearing vs. Criminal Court for a DWI

The following is a breakdown of the Zero Tolerance Law in New York State:

• If your BAC is .02% or more, but not more than .05%, you will be charged with the traffic offense of “driving after having consumed alcohol.” You will then be provided with a notice to appear for a hearing before an administrative law judge of the Department of Motor Vehicles.
• If your BAC is more than .05% but not more than .07%, the police will have the option of charging you with “driving while ability is impaired by alcohol” (DWAI).
• If your BAC is more than .07% but less than .08% you will be charged with the offense of “driving while ability is impaired by alcohol” (DWAI), and for those with a BAC of .08% or more, the charge will be “driving while intoxicated” (DWI).

If you are charged with either DWI or DWAI, you will be arrested and dealt with in criminal court.

We provide a more detailed explanation of the Criminal Court Process here.

The DMV Administrative Hearing

The Hearing will be held at a local DMV office. You have the right to be represented by an attorney, the police officer will testify and you will have the opportunity to present witnesses and evidence on your own behalf.

During the DMV Administrative Hearing, the police officer must prove the following:

• You were the person who operated the motor vehicle;
• A valid request was made to submit to a chemical test (Breathalyzer);
• You were younger than 21 at the time;
• The chemical test was properly administered;
• The test showed you had consumed alcohol (.02% or more); and
• The police officer made a lawful stop of the vehicle.

If, after both sides have been heard, the police officer has carried his burden of proving the case, the administrative law judge will make a finding that you drove after having consumed alcohol.

The penalties include a 6-month license suspension, a $125 civil penalty, and a $100 suspension termination fee. Each additional offense will result in your license being revoked for at least one year or until age 21, whichever is longer, plus a $125 civil penalty, and a $100 license re-application fee.

License Revocation as a result of driving after having consumed alcohol

You will need to turn in your license to DMV, and it will be illegal for you to drive. At the end of the revocation period, you may apply for a permit and start the licensing procedure. This does not mean that you will have a new driving record. Any convictions you had with the license which was revoked will still be part of your driving record.

Alcohol and Driving equals: License Suspension

You will need to turn in your license to DMV, and it will be illegal for you to drive. Your license will be returned to you at the end of the suspension period.

If your license is suspended under the zero tolerance law, and you do not have any prior alcohol-related convictions on your license, you may be eligible for a conditional license. However, in order to receive one, you must enroll in and complete the Drinking Driver Program. A conditional license will allow you to drive back and forth to work and school, but it is not the same as a full license.

DWI and DWAI Legal Help

Driving While Ability Impaired or Driving While Intoxicated can have serious implications on your ability to drive in New York State or elsewhere.

It is important to contact a skilled DWI lawyer in New York State as soon as possible to protect your rights. Our attorneys at Riebling, Proto & Sachs, LLP are former Assistant District Attorneys and use that experience to aggressively defend your case. We are Westchester County DWI lawyers also working in all Counties in lower New York.

Contact our Lawyers for a Free Consultation. Our office is always available regarding your DWAI/DWI case and can not only put your mind at ease but provide you with valuable information regarding your drinking and driving defense and your best options to proceed.