DWI/DWAI Category Archives — Page 6 of 11 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

NEW ARIZONA LAW ELIMINATES RIGHT TO A JURY TRIAL FOR FIRST TIME DWI

May 10, 2011 | Jasmine Hernandez

The lawyers at the New York criminal defense firm Tilem & Campbell are taking notice of a law signed by Governor Jan Brewer on April 29, 2011 eliminates the right to a jury trial for first offenders charged with DWI’s and is viewed as a first step toward eliminating the fundamental right to a jury trial in all misdemeanors in the state. The move is expected to save the Court system money but so would the elimination of many of our fundamental rights.

The Sixth Amendment to the United States Constitution found in our Bill of Rights says “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State. . .” What appears to be a very clear constitutional right is not followed in all states.

In New York City for example a person can be tried without a jury, by a judge sitting alone, and sentenced to up to 6 months in jail if the crime they are accused of is a misdemeanor punishable by no more than 6 months in jail. Many prosecutors in New York will reduce a charge in order to take away ones right to a jury trial.

BRONX PROSECUTOR ARRESTED FOR DWI HAD TWO PRIOR DRIVING INCIDENTS

May 6, 2011 | Jasmine Hernandez

Bronx ADA Jennifer Troiano who was arrested in August for DWI apparently had two prior driving incidents, one of them involving DWI according to an article published in the Daily News this week. The first incident in 2005 led to the suspension of NYPD Detective Jose Arroyo who was allegedly asleep in the passenger seat when Troiano was involved in some kind of accident and left a bumper and license plate at the scene. In 2009, Troiano was allegedly arrested for DWI but the arrested was voided because she was a prosecutor according to the Daily News Article.

Jose Arroyo was later convicted of Rape and is currently serving a 15 year prison sentence according to the Daily News Article.

The arrest of Troiano and the uncovering of the voided arrest from 2009 has uncovered a large ticket fixing scandal involving Bronx Police Officers. More than 40 police officers are expected to be indicted by a Bronx County Grand Jury according to the Daily News. This could affect hundreds of cases in which indicted police officers made arrests.

TILEM & CAMPBELL PARTNER Peter Tilem WINS ANOTHER DWI TRIAL

March 6, 2011 | Jasmine Hernandez

Westchester, New York law firm Tilem & Campbell won another DWI trial last week for a man accused of drunk driving back in January 2007. The not guilty verdict came following a two day trial in which police testified that the driver was found asleep in his vehicle, with the engine running while intoxicated. Tilem & Campbell managing partner Peter Tilem tried the case and focused the defense on the failure to prove operation of the vehicle which is a requirement of any conviction for DWI under VTL 1192 (2) or 1192 (3).

The victory marks Mr. Campbell’s seventh not-guilty verdict in a DWI case against just one loss in the last eighteen months. Mr. Campbell has trained extensively in field sobriety testing and DUI detection and has used his training and experience to win DWI cases.

The trial was conducted in the Justice Court of Greenburgh in Greenburgh, New York. The defendant in the case had been facing serious consequences if convicted including revocation of his driving privileges, up to a year in jail, surcharges, fines and insurance consequences, as well as the expensive, New York Driver Responsibility Assessment.

DRIVING WHILE ABILITY IMPAIRED BY ALCOHOL

November 10, 2010 | Tilem & Associates

In New York, no person shall operate a motor vehicle while their ability to operate such motor vehicle is impaired by the consumption of alcohol. [VTL 1192(1)]. Unlike Driving While Intoxicated [VTL 1192(2), (3)], Driving While Ability Impaired (DWAI) in New York is not a criminal offense but instead is a non-criminal traffic infraction. (Please see our May 27, 2009 blog on the difference between DWAI and DWI in New York.) However, Driving While Ability Impaired can be charged as a misdemeanor if the defendant has two or more convictions for Driving While Ability Impaired, Driving While Intoxicated, Aggravated Driving While Intoxicated, Driving While Ability Impaired by Drugs or Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs within the previous ten years.

One who is “impaired” by alcohol is less “impaired” than one who is intoxicated. Said another way, intoxication is a greater degree of impairment. All the prosecution need prove to convict a defendant of Driving While Ability Impaired is that the defendant’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities the defendant is expected to possess in order to operate a vehicle as a reasonable and prudent driver. [See CJI2d (1192(1)].

What makes it difficult for a defendant to defend against a Driving While Intoxicated charge is the “impaired, to any extent”, language found in the jury instruction. For one to be found guilty of Driving While Intoxicated (which is a criminal offense), their ability to operate a motor vehicle must be impaired to a “substantial” extent. However, with Driving While Ability Impaired, one is guilty if their ability to operate the vehicle is impaired to “any” extent. So while it’s generally not a criminal charge, it doesn’t take much proof for the prosecution to prove that one was Driving While Ability Impaired [VTL 1192(1)] because of the low threshold “any” extent proof requirement. Therefore, even the slightest of impairment can result in a conviction for Driving While Ability Impaired.

NEW YORK’S IGNITION INTERLOCK DEVICE PROGRAM IS ONLY APPLICABLE TO DRIVING WHILE INTOXICATED BY ALCOHOL CRIMES

October 27, 2010 | Tilem & Associates

Under New York’s tough new Ignition Interlock Device Program, those convicted of Driving While Intoxicated per se under VTL 1192(2); Common Law Driving While Intoxicated under VTL 1192(3); Aggravated Driving While Intoxicated under VTL 1192(2-a) or any crime found in the Vehicle and Traffic Law or the Penal Law of which an alcohol-related violation of any provision of VTL 1192 (New York’s DWI laws) is an essential element will be required to install an IID in any vehicle they own or operate for at least six months.

However, the law does not apply to those convicted of Driving While Ability Impaired (Alcohol) [VTL 1192(1)]; Driving While Ability Impaired by Drugs [VTL 1192(4)]; Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol And Any Drug or Drugs [VTL 1194(4-a)]; Commercial Motor Vehicles: per se – level I (.04-.06 while operating a commercial vehicle) [VTL 1192(5)]; and Commercial Motor Vehicles; per se – level II (more than .06 but less than .08 while operating a commercial vehicle) [VTL 1192(6)].

Perhaps an argument could be made that the IID law applies to Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol And Any Drug or Drugs [VTL 1194(4-a)] because under the second provision of this statute one’s ability to drive must be impaired by the combined influence of alcohol and any drug or drugs. Therefore, impaired by alcohol is an essential element of the second provision of VTL 1194(4-a).

WHO MUST INSTALL AN IGNITION INTERLOCK DEVICE UNDER NEW YORK’S IGNITION INTERLOCK DEVICE PROGRAM?

October 25, 2010 | Tilem & Associates

New York DWI lawyers are now forced to counsel their clients on the new penalties attached to DWI convictions in New York. On November 18, 2009, New York enacted the Ignition Interlock Device Program. Pursuant to this law, effective August 15, 2010, one who was arrested in New York on or after November 18, 2009 and convicted on or after August 15, 2010 for (1) Driving While Intoxicated per se (VTL 1192(2); (2) Common Law Driving While Intoxicated (VTL 1192(3)); (3) Aggravated Driving While Intoxicated (1192(2-a)); or (4) any crime found in the Vehicle and Traffic Law or the Penal Law of which an alcohol-related violation of any provision of VTL 1192 (New York’s DWI laws) is an essential element will be required to have installed an ignition interlock device in any vehicle he or she owns or operates for a period of at least six months.

This ignition interlock device must be installed even if the court imposes a conditional discharge. (See VTL 1193(1)(b)(ii); VTL 1193(1)(c)(iii); VTL 1198; and PL 65.10(2)(k-1)). To clarify: the IID law does not apply to those arrested before November 18, 2009 even if they are sentenced after August 15, 2010.

This can prove to be quite an onerous condition. For example, a married father with two children of driving age might very well own or operate four cars. If he were to be convicted of an offense that mandates the installation of an IID, he would have to install an IID in all four cars at his own cost. Initial installation and monitoring costs will be discussed in a future blog but generally, initial installation will cost from $80.00 to $225.00 for each car and monthly monitoring will cost as much as $90.00 per month per car. In this example therefore, the defendant could spend as much as $900.00 for installation in the four cars and $360.00 per month for monitoring of the four units for a minimum of six months. The costs can run into the thousands.

THE SECOND EPISODE OF LAW TALK WITH PETER TILEM & Peter Tilem WAS A GREAT SUCESS AND IS NOW AVAILABLE ON DEMAND

October 21, 2010 | Jasmine Hernandez

The second episode of “Law Talk with Peter Tilem and Peter Tilem” aired last night and was a great success. The topics last night included prosecutorial and judicial misconduct, the role of the prosecutor and a little bit more about DWAI (Driving While Ability Impaired by Alcohol) in New York. For those who missed the show it is available on demand at the Centanni Broadcasting Network website. Just click on the date to hear the October 20, 2010 show.

Law Talk with Peter Tilem and Peter Tilem airs every Wednesday night at 8pm. You can listen live or on demand and if you have a specific topic that you would like us to discuss please E-Mail us the question at info@tilemandcampbell.com.

NEW YORK CRIMINAL DEFENSE LAWYERS COMPLETE THEIR FIRST RADIO SHOW WHICH COVERED DWI AND GUN CASES

October 13, 2010 | Jasmine Hernandez

New York Criminal Defense lawyers Peter H. Tilem and Peter Tilem completed their first radio show broadcast live over internet radio earlier this evening on the Centanni Broadcasting Network. The topic of the show was the severe penalties for DWI and Gun cases in New York. The shows are archived and are available on demand by visiting the Centanni Broadcasting Network website and clicking on the Law Talk with Peter Tilem, Esq. and Peter Tilem, Esq. button. Or click on the October 13, 2010 show to be brought right there.

Law Talk received rave reviews and is the first in what is expected to be a weekly show, airing every Wednesday Night at 8pm.

Please join us live or E-Mail us any questions that you would like answered on the air to info@tilemandcampbell.com.

NEW YORK DWI ATTORNEY Peter Tilem COMPLETES THE NEW YORK STATE BAR ASSOCIATION’S 2010 “REPRESENTING A DWI DEFENDANT IN NEW YORK FROM ARRAIGNMENT TO DISPOSITION”

September 24, 2010 | Tilem & Associates

In a continuing effort to provide those charged with Driving While Intoxicated in New York with the best possible defense, on September 23, 2010, attorney Peter Tilem a partner in the criminal defense firm Tilem & Campbell successfully completed the New York State Bar Association’s Continuing Legal Education Class “Representing a DWI Defendant in New York from Arraignment to Disposition.”

The class focused on New York’s new Ignition Interlock Law which requires anyone charged with Driving While Intoxicated (by alcohol only) on or after November 18, 2009 and sentenced after August 15, 2010 to install an Ignition Interlock in any vehicle that person owns or operates. This is a very complex law with many yet to be solved problems and issues.

Furthermore, the class focused on test refusals, the imposition of penalties on out-of-state drivers, multiple offenders, and DWI felonies. There was also a session on Field Sobriety Testing (which included the Horizontal Gaze Nystagmus (the eye test), the Walk-and-Turn Test and the One-Leg-Stand Test). The final session of the class concerned breath testing and the inner workings of the most common machines used by law enforcement.

FINAL NOTICE – NEW YORK DWI CONVICTION REQUIRES IGNITION INTERLOCK INSTALLATION STARTING TOMORROW

August 13, 2010 | Jasmine Hernandez

As we have previously reported in our May 7, 2009, January 18, 2010 and July 26, 2010 blogs, the installation of ignition interlock devices will be come mandatory on all Driving While Intoxicated convictions effective tomorrow, August 15, 2010.

These devices are expensive to install, require monthly monitoring and can be embarrassing to explain. DWI’s, DUI’s and DWAI’s are serious offenses that require serious criminal attorneys who know the science and the law behind DWI cases. Besides the mandatory ignition interlock device and the mandatory revocation of your license, offenders face probation or jail and severe fines and surcharges.

As we approach Labor Day, this is a good time to remind people not to drink and drive. If you or a loved one are arrested, charged or questioned about a DWI or other alcohol related incident including Vehicular Assault or Vehicular Manslaughter contact the law firm of Tilem & Campbell.