New York Criminal Attorney Blog

NEW YORK DRIVING WHILE INTOXICATED – A BRIEF SUMMARY OF RETROGRADE EXTRAPOLATION

June 6, 2009 | Tilem & Associates

If you are arrested for Driving While Intoxicated (DWI) in New York, you generally, do not take a chemical test of your breath, blood or urine for up to two hours after your arrest (if you in fact take the test). Therefore, while the test you take (usually a Breathalyzer of some type) provides an alleged Blood Alcohol Concentration (BAC) at the time you actually take the test, it does not, nor could it, determine your BAC at the time you were actually driving. Nevertheless, in New York, if your BAC is over .08 based upon a test given within two hours after your arrest, you are guilty of Driving While Intoxicated based upon a BAC in excess of .08 (VTL 1192(2)).

Typically a motorist arrested for a New York DWI is asked to take a Breathalyzer. However, if a serious accident has occurred with serious injuries and/or death, the suspected intoxicated driver will many times refuse to take a Breathalyzer, blood or urine test. Even if they consent to a Breathalyzer, the Police, in such circumstances, may still seek a blood test. Where there are serious injuries or death involved and the suspected intoxicated driver refuses to submit to a chemical test, the police and/or District Attorney’s Office will seek a court order signed by a judge compelling the driver to submit to a test – usually a blood test.

It can take a long time to get a judge to sign an order compelling the driver to submit to a chemical test. As a criminal defense attorney, experienced with DWI matters, I was once involved with a case in which my client was not tested for 19 hours after the fatal accident. During this delay, the driver is eliminating alcohol from his system. How then, can we know the driver’s BAC at the time he was driving if the test was given many hours (even up to 19 hours) after he was driving?

NEW YORK DRIVING WHITE INTOXICATED – TOLERANCE

June 2, 2009 | Tilem & Associates

As experienced New York DWI attorneys, we deal with many different types of New York DWI cases. Many times in a New York Driving While Intoxicated (DWI) case, the motorist will have an allegedly high Blood Alcohol Concentration (BAC) but yet perform well on Field Sobriety Tests (FSTs) such as the “Walk-and-Turn”, “One Leg Stand”, and “Finger-to-Nose” tests. Also, many times, despite a high BAC, the motorists will appear fine on a video. When this happens, defense attorneys argue the obvious – the Breathalyzer was not working properly and therefore, the high BAC score was incorrect. Why else would the motorist perform well of the FSTs and appear fine on the video?

In an effort to try and explain this apparent discrepancy between the motorists BAC score, the prosecution will try to offer “Tolerance” Evidence. In other words, the prosecutor will try to make the jury believe that the reason the motorists performed well of the FSTs but yet had a high BAC is because the motorists is a chronic drinker who has been drinking heavily for a long time and therefore, has developed a tolerance to the effects of the alcohol.

However, the prosecutor should not be allowed to offer evidence regarding the motorist’s tolerance where they have no evidence that the motorist is in fact a heavy drinker and has therefore developed a tolerance. Without knowing the motorist’s drinking history and whether they were in fact a heavy drinker, tolerance evidence is completely irrelevant.

NEW YORK DWI – DRIVING WHILE ABILITY IMPAIRED VS. DRIVING WHILE INTOXICATED

May 27, 2009 | Tilem & Associates

The difference between a New York criminal conviction for Driving While Intoxicated and a non-criminal conviction for the violation of Driving While Ability Impaired lies in the extent of the driver’s impairment. In fact, where a defendant is charged with Common Law Driving While Intoxicated, it is a common strategy for an attorney to ask the jury to find the defendant not guilty of Common Law Driving While Intoxicated (VTL 1192(3)) but guilty of the lesser included offense of Driving While Ability Impaired (VTL 1192(1)). Driving While Ability Impaired is a non-criminal traffic infraction while Driving While Intoxicated is an unclassified misdemeanor.

“Impairment” means that the defendant, by voluntarily consuming alcohol or drugs, has actually impaired, to any extent, the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver. “Intoxication”, however, is defined in New York as a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he or she is incapable of employing the physical and mental abilities which he or she is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver.

Therefore, one is impaired if their ability is impaired “to any extent” while to be intoxicated one must be totally incapable of operating the vehicle. It would appear that proving intoxication under this totally incapacitated standard would be difficult. However, impairment would be much easier to prove because all that is required is the slightest impairment – i.e., impairment “to any extent”.

New York City Bans Items that are Common and Lawful Most Other Places in New York State and in the Country.

May 24, 2009 | Jasmine Hernandez

New York City Administrative Code §10-131 prohibits the possession of common items which are lawful in most other parts of New York State and the Country. As a criminal defense attorney with experience in so many different weapons offenses I see many clients who innocently bring these items into New York City and find themselves facing extremely serious criminal charges.

A brief list of the items banned in New York City is as follows:

1. Air Pistols and Air Rifles. The Sale and possession are illegal in New York City pursuant to 10-131(b).

Up to 8 Cases of Swine Flu Spark Fear on Riker’s Island

May 20, 2009 | Tilem & Associates

With four confirmed cases of swine flu on Riker’s Island and 4 probable cases, fear has gripped both inmates and corrections officers alike who are confined on Riker’s Island. The scare has already disrupted visits and Court appearances in New York City criminal courts and will likely get worse before it gets better. The situation is so bad that the union representing the corrections officers has filed a letter of complaint with the Department of Labor. For families of inmates in the massive New York City Jail system the outbreak means that visits will likely be canceled in many jails. In addition movement within the jails may be curtailed. If you or a loved one are currently confined on Rikers Island or any New York City Jail contact one of the experienced criminal defense lawyers at Tilem & Campbell.

WESTCHESTER COUNTY DA ANNOUNCES RESULTS OF UNDERAGE DRINKING STINGS

May 19, 2009 | Jasmine Hernandez

Westchester County District Attorney Janet DiFiore announced the results of a three month sting operation which used underage criminal justice students to purchase alcohol at bars, restaurants and liquor store. The sting resulted in the arrest of 28 people but also demonstrated that establishments enforced the drinking age 81% of the time. The 28 people arrested were charged with selling alcohol to minors.

During this season when Proms, graduation parties and Memorial Day Weekend parties are in high gear it is important to remember the potential consequences of underage drinking and especially of underage drinking and driving. New York has a “zero tolerance” for people under 21 years of age driving with any alcohol in their system. In addition, New York imposes enhanced, severe penalties for minors who drink and drive.

If you or a loved one has been charged with an alcohol related offense in New York, contact one of the attorneys at Tilem & Campbell.

POLICE STEP UP SEAT BELT ENFORCEMENT

May 18, 2009 | Jasmine Hernandez

Local, County and New York State Police begin their annual “click it or ticket” campaign today which means an increase in seat belt tickets across the State and the Region. The increased enforcement will take the forms of patrols and checkpoints and will likely lead to an increase in traffic tickets of all kinds. In addition to the New York State Police, County and local police in Westchester, Rockland, Orange Counties and beyond are expected to participate. The program is scheduled to last two weeks.

While Seat belt violations in New York carry no points and a fine of $50, it is important to remember that no seat belt or child restraint for a child less than 16 years of age carries 3 points per violation in New York. In addition, Police will be looking for other violations such as speeding, unsafe lane change, failure to signal and equipment violations as they patrol so drive carefully.
If you receive a traffic summons contact us DrSUMMONS.com or 877-DRSUMMONS

DWI REFUSAL HEARINGS IN NEW YORK

May 11, 2009 | Jasmine Hernandez

Anyone arrested for Driving While Intoxicated in New York should be offered an opportunity to submit to a chemical test of their blood, breath or urine. If an offender refuses the chemical test in New York their license may be revoked for a period of one year regardless of whether or not they are ultimately convicted of DWI (Driving While Intoxicated) or DWAI (Driving While Ability Impaired). Due process requires that before your license can be revoked for one year, a hearing must be held to determine whether or not you refused to submit to a chemical test. Experienced criminal defense lawyers who handle DWI cases are aware of the value of these hearings to their clients.

A New York, DWI refusal hearing is conducted by a DMV (Department of Motor Vehicles) administrative law judge who must find that several factors occurred:

1. That there was reasonable cause (probable cause) for your arrest for DWI, DWAI or any violation of section 1192 of the Vehicle and Traffic Law,

NEW YORK MAY SOON REQUIRE IGNITION INTERLOCKS FOR ALL DWI OFFENDERS

May 7, 2009 | Jasmine Hernandez

New York State may be the 11th State in the United States to make ignition interlock devices mandatory vehicles owned by people convicted of drinking and driving (DWI) even if it is their first conviction. The device can detect alcohol in a driver’s breath and prevents the car from starting if alcohol is detected. The proposal made by two Long Island legislators, Senator Charles J. Fuschillo, Jr. and Assemblyman Harvey Weisenberg is already gaining steam in Albany where it has already passed the Senate Transportation Committee. The ignition interlock legislation has passed the Senate before but has not gotten through the New York State Assembly.

While the legislation is popular, its effectiveness is questionable since it only works on the offender’s car and he could obviously drive any car including a rental, a friend’s car or a family member’s car. In addition, anybody could blow into the device thus permitting the intoxicated driver to operate the car.

As experience New York DWI attorneys know, this legislation will add another collateral consequence to a long list of consequences of New York DWI convictions. This list already includes: offenders having a criminal conviction, fines, surcharges, insurance consequences, Driver Responsibility Assessment and license revocation in addition to possibility of jail, probation, conditional discharge, mandatory attendance at a victim impact panel and revocation of offender’s registration.

ARE YOU ENTITLED TO A SUPPORTING DEPOSITION WHEN ISSUED A NEW YORK TRAFFIC TICKET?

May 3, 2009 | Tilem & Associates

Unless your New York Traffic Ticket was issued in New York City, Buffalo and parts of Suffolk County you are entitled as a matter of law to a supporting deposition on all moving violations (including: speeding, red lights, tailgating, unsafe lane change and failure to signal) . You must however, ask for it.

As experienced New York traffic court lawyers, demanding a supporting deposition from the complainant/police officer is one of many tools in our arsenal to help us successfully fight traffic violations. While it is clearly not the right tactic in every case, it can be an effective, although procedurally difficult tactic.

New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier. N.Y. CPL § 100.25(2).