DWI/DWAI Category Archives — Page 8 of 11 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

CRIMINAL DEFENSE FIRM TILEM & CAMPBELL SCORES ANOTHER MAJOR VICTORY ON DWI CASE

October 21, 2009 | Tilem & Associates

New York criminal defense firm Tilem & Campbell scored another major victory in a DWI case today when Supreme Court Justice William Wetzel found the defendant not guilty of felony DWI after trial. The defendant was found not guilty of the felony but was found guilty of unlawful possession of marihuana, a non-criminal offense that carries a maximum penalty of a $100 fine. The defendant was facing up to four years in prison on the felony charge.

The charge arose based upon a one car accident in Yonkers. The defendant refused to take a chemical test but his driving privileges were quickly restored after Tilem & Campbell, partner Peter Tilem won at the DMV refusal hearing.

The defendant had been charged with one count of Driving While Ability Impaired by Drugs or Alcohol and Drugs under Vehicle & Traffic Law section 1192 (4-a), a relatively new section of the New York Vehicle and Traffic Law.

NEW YORK CRIMINAL ATTORNEY Peter Tilem HAS SUCCESSFULLY COMPLETED THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYER’S 13TH ANNUAL DUI/DWI DEFENSE SEMINAR

October 15, 2009 | Tilem & Associates

Peter Tilem, managing partner of White Plains law firm Tilem & Campbell, has successfully completed a three day class in Driving Under the Influence/Driving While Intoxicated defense sponsored by the National Association of Criminal Defense Lawyers and the National College for DUI Defense.

The class, held at Caesars Palace Hotel in Las Vegas from October 8th through October 11th, focused on, among other things, Field Sobriety Testing (Walk and Turn, One Leg Stand and the Horizontal Gaze Nystagmus), the various Breathalyzer machines and their shortcomings, cross-examination of the arresting officer as well as the Breath Test Operator, issues involving blood and urine testing, cross-examination of the state’s toxicologist, recent decisions concerning DWI defense and public speaking issues involving jury presentation. The classes were taught by leading DWI and DUI attorneys from across the nation; many of whom are Board Certified in DUI Defense by the National College for DUI Defense.

Additionally, Mr. Campbell is certified by Blackwater Worldwide in Driving Under the Influence Detection. Blackwater’s certification required Mr. Campbell to complete and 8 hour class in DUI detection and pass a proficiency exam. He is also certified by NIK Public Safety in Narcotic Field Testing having taken a two hour class offered by NIK as well as passing a proficiency exam.

TILEM & CAMPBELL LAUNCHES AD CAMPAIGN USING 888-DWI-COUNSEL

October 4, 2009 | Tilem & Associates

New York DWI defense firm Tilem & Campbell has recently launched an ad campaign targeting individuals accused of Driving While Intoxicated (DWI) and/or related charges. The campaign, which involves, print, radio and internet media uses the toll free number 888-DWI-COUNSEL which corresponds to the numbers (888) 394-2686. The campaign also utilizes the domain address www.888dwicounsel.com. The toll free vanity number and domain should help the public locate Tilem & Campbell. DWI-COUNSEL is spelled with the SEL at the end and not COUNCIL with the CIL at the end to indicate that the firm counsels those accused of DWI.

The lawyers at Tilem & Campbell have a wealth of experience and knowledge in DWI and related cases and can assist those accused. Two lawyers at Tilem & Campbell are former prosecutors, in addition a third has recently completed courses in Driving Under the Influence Detection and Narcotics Field Testing.

Anyone who has been accused in New York of Driving While Intoxicated, Driving While Ability Impaired by Alcohol, Driving While Ability Impaired by Drugs or any related charges is encouraged to call 888-DWI-COUNSEL for a free consultation either in person or over the telephone.

NYPD COP’S BLOOD NOT DRAWN FOR MORE THAN SEVEN HOURS AFTER FATAL ACCIDENT – A DRIVER’S RIGHT TO REFUSE A CHEMICAL TEST

September 29, 2009 | Tilem & Associates

Early Sunday morning, New York City Police Officer Andrew Kelly, while allegedly driving in an intoxicated condition, struck and killed 32 year old Vionique Valnord in Old Mill Basin, Brooklyn. The accident happened at approximately 12:41 a.m., however, Kelly’s blood was not drawn for more than seven hours. How can this happen? Simple, Officer Kelly exercised his statutory right to refuse to submit to a chemical test.

Let’s start with a brief overview of New York’s “deemed consent” law. To summarize the law; every New York driver is deemed to have given consent to the testing of their breath, blood, urine or saliva to determine the alcoholic and/or drug content of their blood provided the officer has reasonable grounds to believe the driver is impaired or intoxicated and the test is administered within two hours of arrest. See NY VTL § 1194(2)(a)(1), (2) see also 10 NYCRR 59.2 (All samples shall be collected within two hours of the time of arrest).

However, a driver has a qualified statutory right to refuse to submit to a chemical test. The right to refuse is qualified in several ways. Yes, one may refuse to take the test and, absent a court order, no test will be given. However, although one may refuse the test, if properly warned of the consequences, and if they persistently refuse, they may incur a “civil” penalty which includes a fine and the revocation of their driver’s license if the refusal is proven at a DMV refusal hearing. See NY VTL § 1194(2)(b). Further, if the driver, after being sufficiently warned about the consequences associated with refusing, nevertheless, persistently refuses, the refusal can be used by the prosecution at trial. See NY VTL § 1194(2)(f).

DRIVING WHILE INTOXICATED – STANDARDIZED FIELD SOBRIETY TESTS (SFSTs)

September 25, 2009 | Tilem & Associates

While police officers many times have drivers perform any number of “tests” on the side of the road to determine whether the driver is impaired or intoxicated, only three have been validated by the National Highway Traffic Safety Administration (NHTSA). They are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus tests. No other sobriety test (for example, the Alphabet Test, Finger Touch, Finger-to-Nose, Write the Alphabet, Pick up Coins, and others) is validated by the NHTSA. The NHTSA validated these three SFSTs after an extensive study commenced in 1977 by Anacapa Sciences of various Field Sobriety Tests being used by law enforcement throughout the country. As stated above, at the conclusion of the Anacapa study, the only three Field Sobriety Tests validated by the NHTSA were, and remain, the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus.

It must also be noted that the SFSTs do not determine intoxication or “drunkenness”. In other words, they do not determine whether one is drunk. They are instead designed to determine whether one has a Blood Alcohol Concentration (BAC) above .10.

In order to accurately determine whether one’s BAC is above .10, SFSTs must be administered in accordance with national standards developed by the NHTSA. With regard to accuracy, studies have shown that if the three validated SFSTs tests are properly administered and the driver “fails” all three, there is an 80% chance that the driver has a BAC of .10 or greater. Therefore, even if the driver “fails” all three tests, there is still a 20% chance that his BAC is lower than .10. A 20% error rate surely raises reasonable doubt.

THE THREE PHASES OF DWI DETECTION – PHASE 3– PRE-ARREST SCREENING

September 20, 2009 | Tilem & Associates

As previously discussed, officers are trained in three different Phases of Driving While Intoxicated detection. Phase 1 involves the officer’s observations of the vehicle in motion, Phase 2 involves the officer’s personal contact with the driver and Phase 3, which I will discuss here, involves Pre-Arrest Screening.

During Phase 3, the officer will determine whether the driver has consumed alcohol and whether such consumption has impaired the driver to the extent that he should be arrested. The main focus during Phase 3 is on the driver’s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Portable Breath Test (PBT) to determine the presence of alcohol but the PBT should only be used to support the SFST; it should not be used in place of SFSTs. In New York, the results of a PBT are not admissible at trial (but they are admissible at pre-trial hearings).

The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus. These will all be discussed separately in future blogs.

NEW YORK DWI – THE THREE PHASES OF DWI DETECTION – PHASE 2 – PERSONAL OBSERVATIONS OF THE DRIVER

September 15, 2009 | Tilem & Associates

As I discussed in a prior blog, Phase 1 of Driving While Intoxicated (DWI) detection involves the officer’s observations of the vehicle in motion. This blog will focus on Phase 2 of DWI detection which involves the officer’s personal observation of the driver once the officer stops the vehicle. Phase 2 involves the officer’s observations during both the stopping sequence of the vehicle as well as the face-to-face interaction between the officer and the driver.

During Phase 2 the officer is looking for such things as bloodshot eyes, difficulty producing or fumbling with the driver’s license, insurance card and registration, dirty or disheveled clothing and alcoholic beverages in the vehicle. The officer will also be looking at the driver’s facial expressions to see if they are consistent with sobriety. The officer will also note if the driver is looking at the officer as they speak or if the driver looking through the officer. The officer will be listening for slurred speech and/or admissions of drinking or drug use, inconsistent answers and abusive language or whether the motorist asks the officer to repeat questions. Other signs the officer is looking for during Phase 2 are the odor of cover-up scents such as mints, mouthwash, perfume or cologne.

While the officer will point out and report any signs of intoxication that were present when the officer observed and interacted with the motorists, the officer never identifies the dozens of signs of intoxication that were not present. That’s the job of a DWI defense attorney. A defense attorney in a DWI case should always point out all the signs of intoxication that were not present.

THE THREE PHASES OF DWI DETECTION – PHASE 1 – VEHICLE IN MOTION

September 10, 2009 | Tilem & Associates

There are generally three Driving While Intoxicated (DWI) detection phases. Unless there is an accident or the officer comes upon a parked vehicle, Phase 1 is usually the vehicle in motion; Phase 2 of DWI detection is the personal contact phase; and the Phase 3 is pre-arrest screening. In this blog I will discuss Phase 1 – Vehicle in Motion.

The Vehicle in Motion phase involves the officer’s observations of how the vehicle is being operated. In 1997 the National Highway Traffic Safety Administration funded a study which identified specific erratic driving patterns performed those with a BAC in excess of .08. These erratic driving problems include:

Problems Maintaining Proper Lane Position

NEW YORK LAWYER Peter Tilem CERTIFIED IN DRIVING UNDER THE INFLUENCE DETECTION AND NARCOTIC FIELD TESTING.

September 5, 2009 | Tilem & Associates

Those charged with a New York DWI/DUI or related offenses, should be pleased to hear that New York criminal defense lawyer, Peter Tilem, the managing partner at Tilem & Campbell recently completed two courses relevant to Driving Under the Influence, Driving While Intoxicated and Driving While Ability Impaired by Drugs. These courses are the same courses that some members of law enforcement take themselves. The knowledge gained in these classes will help Mr. Campbell better cross-examine police officers, toxicologists and others at trial.

With regard to DWI and/or DUI, Mr. Campbell has completed and has been certified by Blackwater Worldwide in Driving Under the Influence Detection. This 8 hour course concentrates on, among other things, the three “validated” Standardized Field Sobriety Tests which are the (1) Walk-and-Turn; (2) One Leg Stand; and (3) the Horizontal Gaze Nystagmus. The course also focuses on Preliminary Breath Screening (which is the handheld device officers sometimes ask a motorist to blow into on the side of the road), and “Red Flags” an officer looks for when observing moving vehicles that indicate a possible intoxicated driver. (weaving, swerving, no headlights at night, wide turns, etc)

Further, Mr. Campbell recently completed a course in, and has been certified by, NIK Public Safety in Narcotic Field Testing. This 2 hour course focused on the field testing of substances to identify illegal drugs such as cocaine and marijuana. Field testing of this type is usually done by law enforcement officers in the field to test substances found during searches, car stops, etc. Mr. Campbell was trained in how to use field testing kits and identify various drugs based upon the test results, how to properly use NIK’s Polytesting system which is utilized when the officer has no idea what the substance is (as opposed to most situations where an officer has an idea of what the substance is), and how to utilize NIK’s reference materials relating to narcotic field testing.

NEW YORK DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 8 – FERMENTATION OF THE BLOOD SAMPLE?

August 24, 2009 | Tilem & Associates

In continuing with my series of blogs on Driving While Intoxicated and blood testing, this blog will focus on the problem of fermentation within the blood sample collection tube. I previously explained that the collection tube is supposed to contain two chemicals – an anticoagulant and an anti-fermentation chemical. Preventing fermentation in collection tube is critical because if the sugar in the blood ferments into alcohol, that will obviously result in an erroneously high blood alcohol concentration result.

The collection tubes are therefore required to contain a preservative to prevent fermentation. Sodium fluoride is the most common preservative used and is the preservative used by NIK Public Safety, Inc. who manufactures the blood collection kits most commonly used by law enforcement agencies. NIK makes two kits; one contains 20mg of sodium fluoride and the other contains 100mg of sodium fluoride.

Inquiry should be made into whether the kit contained 20mg or 100mg of sodium fluoride because 100mg is required to prevent fermentation. There are problems with both. First, studies have shown that 20mg is insufficient to prevent fermentation and second, 100mg can cause an erroneously high result when “Head Space Analysis” testing is used (discussed later).