New York Criminal Attorney Blog
Last night I had the opportunity to begin my cross-examination of a Larchmont Detective who was the prosecutor’s sole witness in a suppression hearing that this firm was conducting on a Driving While Ability Impaired (DWAI) case against one of our clients. The case involves a woman who had a blood alcohol result of only .07 but was arrested in Larchmont, New York a small village in Westchester County. (Please see the last post for more information about the problems with prosecuting such low readings.)
While preparing for the suppression hearing and cross-examining this detective I was reminded of how important these hearings can be in DWI and DWAI cases. Sometimes these hearings can be more important than the trial itself. The stakes are high in suppression hearings. At stake is the suppression of the breath that was used to obtain the blood alcohol content reading and any statements that the police are alleging were made by the defendant. Without these critical pieces of evidence the prosecutor often has little hope of winning.
As a general rule in criminal law known as the “exclusionary rule” evidence and/or statements that are taken by the police in violation of the Constitution are to be suppressed by a Court and are therefore not admissible against the accused. Statements and evidence must also be suppressed if they are the “fruit” or result of the unlawful police conduct. In DWI cases these issues are critical.
The issues that must be explored by a skilled attorney and ultimately decided by a Court at such a hearing are numerous:
Did the police have reasonable suspicion for the initial stop of the defendant?
Did the police have probable cause for the arrest of the defendant?
Were Miranda warnings given to the defendant? At what stage?
Were field sobriety tests given? Were the tests properly administered?
How did the police Officer determine whether the defendant passed or failed?
Was the arrest pursuant to a checkpoint? If so was it constitutional?
The list of issues and subjects to be explored is too extensive for this article but you get the idea.
Last night the issue of the constitutionality of the roadblock was paramount and my questioning was so extensive that the Judge adjourned the case for several weeks so that I could continue my examination of the arresting Detective. Remember, this is usually a criminal defense attorney’s first opportunity to cross-exam the police witness in the case. It also usually the last opportunity before the actual trial so it’s important to go slow, be thorough and explore every relevant avenue in order to attack the lawfulness of the police officer’s conduct.
It’s also important not to take anything at face value. While I don’t want to give away too much about my cross-examination in a forum that could easily be read by a police officer that I was going to cross-examine, it’s important to be aware that just because a field sobriety test was administered doesn’t mean that it was administered correctly. Ask questions! Just because a roadblock was conducted doesn’t mean it was lawful. Ask questions!
If you ask the right questions, you might just be surprised by the answer. And perhaps the prosecutor will be forced to try his or her case without the evidence they so desperately want to use.