New York Criminal Lawyer Blawg

WHEN DO THE POLICE NEED TO "READ YOU YOUR RIGHTS"?

Television and Movies always portray police officers reading Miranda rights to persons under arrest or suspected of a crime. This is very dramatic but not a good portrayal of when and how the police must read a suspect their Miranda Rights.

The Miranda rights are as follows:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?"

The following case is a good example of the use of Miranda rights, when the are to be used and how they can protect someone under criminal investigation. It is important to note that one should never speak with the police and should contact a criminal defense lawyer immediately.

In People v Baggett, 57 AD3d 1093, the Court erred in denying the defendant's motion to suppress written statements and an audio recording during which he admitted to committing certain crimes. The prosecution did not meet its initial burden of proving that the statements were voluntary. At the time the defendant made the first incriminating statement, a reasonable, innocent person would not have felt free to leave.

Around midnight, the police pulled over the car the defendant was riding in, even though no traffic violations were committed. The police asked the defendant to come with them to the station, and the driver was allowed to leave. The defendant was transported in a marked police car, but was not handcuffed. He waited in an interview room, and when questioning started the door was closed. The police told him the information they had, including an accusation against him by an associate. After he denied stealing anything, the questioning continued.

The police did not administrator Miranda warnings until the defendant finally admitted that he stole the bicycle.

The pre-Miranda questions were accusatory in nature, and intended to elicit an incriminating response. Although the other statements were made after the Miranda warnings, they were tainted by the prior admission and there was no significant break in the questioning.

The statements were suppressed.

At Riebling, Proto & Sachs, LLP our criminal defense trial attorneys want you to understand your rights and how to protect yourself, in a stressful situation, from police misconduct. Our advice to our clients is that it is never advisable to talk to the police without a criminal defense attorney. The police are looking for an accused to make an admission to a crime since it is easier to obtain a conviction with an admission.

In Westchester, Rockland, Orange, Putnam, Dutchess and Bronx Counties our criminal defense attorneys regularly appear in Court and conduct suppression hearings based upon statements made by an accused. Statements are very strong evidence of guilt and the best criminal defense must attack any statements made.

In certain circumstances the police DO NOT have to read you your rights so it is advisable NOT to make any statements at any time to the police. Immediately call our office for a FREE consultation.

The DWI/DWAI Zero Tolerance Law - Underage Drinking and Driving

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.

The DWI Administrative Refusal Hearing

In New York State, you are deemed to have given your consent to a breath, blood, or urine sample to determine your Blood Alcohol Content (BAC) at the time of a DWI arrest. You may however, refuse to consent to a BAC test. In fact, the police department and State Police are required to read you standard "Refusal Warnings" outlining the consequences of a refusal to submit to a chemical test.

Those warnings are:

1. You are under arrest for driving while intoxicated
2. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of you license or operating privilege, whether or not you are convicted of the charge for which you are arrested.
3. If you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest.
4. Will you submit to a chemical test of your (breath/blood/urine) for alcohol? or (will you submit to a chemical analysis of your blood/urine for drugs?)

These warnings will be read to you and the Officer will usually ask you to initial a form with the warnings. One does not get to pick what type of test they would like to take for a BAC reading, but the warnings must be conveyed in clear and unequivocal language.

A DWI Refusal Hearing will be held at the Department of Motor Vehicles within 15 days of the arraignment on the DWI charge.

The license will be surrendered to the Court at arraignment and there is no eligibility for either a Hardship or Conditional license during this 15 day period from the Court or DMV. The Officer and the driver must appear at the scheduled Refusal Hearing at the Department of Motor Vehicles.

• If the driver fails to appear, the Refusal Hearing is deemed to be waived and the mandatory civil suspension takes effect.
• If the Officer fails to appear the driver's license is restored until the rescheduled date.

At the hearing if the driver is found to have refused to submit to a breath, blood, or urine test for the DWI, the license is revoked for one year.

The only way to get your driver's license back with conditional privileges is to plead guilty or be found guilty of an alcohol related violation (DWAI or DWI) assuming no prior alcohol charges within the last five years. After a guilty finding the driver can enter the Drinking Driver Program and obtain a Conditional license (12 months) for use to, from and during work, child care, medical and dental for the motorist and members of the household. Additionally, DMV offers a three hour weekly block of time of your choosing for personal matters.

A DMV Administrative Refusal Hearing, not a criminal court, The Judge can convict you on the Officer's DWI paperwork even if the Officer does not appear.

The standard of proof is "Clear and Convincing" not "Beyond a Reasonable Doubt".

If the Judge finds that you refused to submit to a test, your license will be revoked for one year. If, on the other hand, the Judge decides the paperwork, procedure, or testimony was not proper, then the ALJ could dismiss the case. The license would be restored.

The Refusal Hearing is important to our Criminal Defense DWI lawyers since it is an opportunity to cross examine the police officer before trial.

Many times our clients request a transcript of the hearing testimony to use at trial. Unlike a civil case depositions are not taken in a criminal case this however is an opportunity to get as much information out of the Officer about the arrest. In most cases this is an advantage for the New York State DWI Lawyer. Our DWI lawyers are always focused on providing the best possible defense and aggressively protecting your rights.

At Riebling, Proto & Sachs, LLP we have worked with clients in DWI refusal cases. The hearings are an important part of and DWI criminal defense and should be attended. In most cases the client has nothing to lose and everything to gain from fighting at a refusal hearing. Refusal hearings are generally conducted in the County of the arrest. Out DWI defense attorneys will defend these matters in any County in New York State including Westchester, Orange, Putnam, Dutchess, Rockland and the Bronx. It is important to act quickly to prepare the defense and be ready for the hearing as the hearing will be held within 15 days of arraignment.

Recently our attorneys represented a client at a DMV Refusal Hearing in the City of Yonkers, Westchester County. The State Trooper testified but did not demonstrate that the driver was adequately notified of the consequences of a refusal. Our DWI defense attorney immediately made an application to the ALJ to dismiss the case and that application was granted. The client walked away with his license and none of the consequences of a DMV Refusal including financial penalties.

If you have been arrested for DWI in New York State , you need an skilled NY attorney. Contact our office to discuss the defense of the case and your options to proceed. We are available for a free consultation for all cases and can explain the DWI Refusal Defense in New York State and how it relates to your case.