New York Criminal Lawyer Blawg

Illegal Police Search

In Westchester County Court (White Plains) a handgun was suppressed with the consent of the District Attorney due to an admitted illegal search of an automobile by the Rye City Police Department. The two felony charges for possession of a weapon were dismissed after indictment.

Rye City Police Search of a Vehicle

In the City of Rye a motorist was stopped for making an illegal right turn on a red light (traffic infraction). After the vehicle was stopped the driver was found to have a suspended driver’s license (VTL 511) and asked to exit the vehicle. The driver was handcuffed, placed under arrest and seated in the rear of the officer’s police vehicle. After the arrest the officer began the search of the client’s vehicle and discovered a gym bag next to the driver’s seat. The officer opened the bag and found gym clothes and a loaded, defaced, handgun wrapped in a sweatshirt. The defendant was arrested for Criminal Possession of a Weapon and Aggravated Unlicensed Operation of a Motor Vehicle (VTL 511).

The Illegal Search

After an investigation by criminal defense trial attorney, Andrew Proto it was determined that the police had no reasonable cause to search the vehicle. There could be no safety concerns for the officer since the client was handcuffed in the back of the police vehicle. The District Attorney claimed that the officer was simply inventorying the contents of the vehicle as the vehicle was about to be impounded and no illegal search was conducted. However, the officer admitted that he had not searched the bag pursuant to an inventory search but for officer safety.

Motion to Dismiss the Criminal Possession of a Weapon Charge and to Suppress the Handgun

In the United States Supreme Court case of Arizona v Gant _ US_, WL 1045962 (2009), the Supreme Court overturned the search of defendant Gant’s car after he was arrested for driving with a suspended license, handcuffed and secured in the back of a police car. Criminal Defense trial attorney Andrew Proto, argued the Rye City Case had the same facts as in Gant and any inventory search by the Rye City Police Department was an after thought by the police once the handgun was discovered.

Suppression

Once the gun was suppressed on consent of the District Attorney the client was no longer facing a minimum five year sentence in state prison. The best criminal defense is to aggressively defend serious charges such as criminal possession of a weapon and look for any violation of one’s constitutional rights.

The criminal defense trial attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Courts of Westchester, Orange, Putnam, Dutchess and Rockland Counties. If you or someone you know is facing a serious charge contact our office. We look to every defense possible and pursue the best criminal defense to protect your rights. We are always available for a FREE Consultation.

Driving While Intoxicated and the Field Sobriety Tests

Field Sobriety Tests (FST) are a common method to determine whether there is reasonable cause to believe that a person is Driving While Intoxicated (DWI). The New York State police, local police and county police use FST as part of any DWI stop and DWI investigation. In those tests a motorist is asked to step out of their vehicle and engage in a number of physical acts which are designed to test a person’s coordination for the purposes of determining intoxication. Motorists generally cooperate with these tests and rarely refuse to take these FST. If the FST are refused your driver’s license will NOT be suspended unlike a chemical test refusal.

In any DWI investigation in New York State, these tests will be offered. In Bedford Court in Westchester County, White Plains City Court in Westchester County, Yonkers City Court, Southeast (Brewster) Court, or any other court in Westchester, Rockland, Orange, Putnam or Dutchess Counties the Courts will provide a motorist a list of FST at arraignment. It is usually a form with boxes checked off regarding the test, if the tests were refused and if the motorist passed or failed the FST. The State Police have a standardized form but local police may used their own form.

What are These Tests?

The FST commonly use include the following:

1. Horizontal Gaze Nystagmus Test (HGN) – In this test the office asks you to follow his pen with your eyes. The test looks for an involuntary jerking motion of your eyes. Although this test can be used by the officer to determine intoxication it is rarely admitted into evidence at trial.
2. The Walk and Turn Test — In this test you are asked to walk heal to toe, turn and walk heal to toe again. Usually it is anywhere from 1-10 steps. Rarely is this test given on a flat surface on a painted line. Usually its on the side of the road with cars driving by at 60-70 miles per hour, at night with the police car lights flashing in the background.
3. One Leg Stand — The officer will ask you to stand on one leg for 30 seconds. The officer is looking for swaying, moving arms up more than six inches for balance (most individuals keep their arms to their side making the test very hard), hopping or putting your foot down.
4. Finger to Nose Test — In this test a motorist is asked to stand with their feet together, close their eyes, extend their arms out and touch the tip of their finger to the tip of their nose.
5. ABC Test — In the Alphabet test, the officer will ask the motorist to recite the alphabet test usually from the middle to the end.

The Defense to the DWI, Field Sobriety Tests

There may be additional tests but the above are the major tests a police officer will use to determine intoxication. The tests are all defensible. The best criminal defense to a DWI charge is an attack of these tests including:

1. Lack of instructions regarding how to perform the test.
2. Lack of officer demonstration regarding how to perform the test.
3. Conditions during the test, such as performed on a busy highway.
4. The subjective nature of the test.
5. Officer’s presumption of guilt that they are just “going through the motions” before an arrest.
6. The officer rushing the tests.
7. The motorist actually passed the test and the officer marked it as failed.

There are of course more ways to defend the FST test but this is just a general line of attack for the best criminal defense, every person is in a different position. For example, in the defense of a DWI charge on 684 in North Castle (Armonk), New York the officer allowed a women to take her 2 inch high heals off but was told to perform the one leg stand test and walk and turn test on the side of the road with rocks, dirt and even glass under her feet clearly putting her at a disadvantage. The defense of a DWI charge is always tailored to your specific facts and circumstances.

Criminal Defense of the Field Sobriety Tests

FST in any criminal defense must be attacked since the District Attorney will use that test as strong evidence of guilt. Since all the police have to do is check off a box there is the temptation to rush through the tests and check off as many boxes as possible. That is the first and best criminal defense to DWI, FST. Our DWI criminal defense lawyers cross examine the administration of the tests and the motorist’s performance but also the validity of the tests as an indicator of intoxication and the subjectivity of the judgment of the police officer.

FST and a Chemical Test Refusal

As a criminal defense attorney and a DWI criminal defense attorney I always prepare the best defense for my clients. I review the evidence from the District Attorney and determine if they have a strong case or a weak case.

FST will be used as evidence of guilt but your driver’s license will NOT be suspended if you refuse to take any of those tests. However, if you refuse to submit to a chemical test your driver’s license will be suspended and you may also face civil penalties. A chemical test will also be used a evidence of guilt.

If its one’s goal to minimize the amount of evidence against them at trial and they refuse a chemical test to accomplish this the FST should be refused as well.

The DWI Arrest

If the police feel you are intoxicated or impaired (DWI) (DWAI) they will make an arrest. The best course of action after any arrest is to call a DWI criminal defense attorney. Not only can a lawyer explain your rights to you and the best defense for your case but you should immediately feel better that your lawyer is attacking the case and will do whatever necessary to protect you.

If you or a family member is charged with a DWI related offense call my office for a free consultation. We regularly appear in the Courts of Westchester, Putnam, Dutchess, Orange, Rockland and the Bronx.

• THE TRAFFIC STOP

Types of traffic stops by police officers are common question at my office. Everyone seems to think that you can be pulled over “when you do something wrong” and that’s true but the Vehicle and Traffic Law goes beyond that and makes rules to protect driver’s. A general understanding of the law will help you be prepared as you drive the roads of New York State and help you protect your rights.

The police may NOT stop a vehicle on a public highway for a routine traffic check. ONLY when the officer has “reasonable suspicion” to believe that a violation or crime is committed may the vehicle be stopped. People v Ingle, 36 NY 2d 413. A police officer’s good faith but erroneous belief that a person committed a traffic infraction (failing to signal when exiting a private driveway) will not support a stop. Byer v Jackson, 241 AD 2d 943.

In New York Traffic Court either at the Traffic Violation Bureau (TVB) or in the local justice Courts, the Courts must evaluate police conduct and determine whether the action taken was justified in its inception and at every subsequent stage of the encounter. People v Nicodemus, 247 AD 2d 833. However, a police officer’s failure to issue a ticket for a traffic infraction that was the basis for the stop does not defeat probable cause. People v Ferraiolo, 309 AD 2d 981.

In a DWI arrest the office first needs a reason to pull you over. Most police officers will find a violation of the vehicle and traffic law such as speeding, weaving out of lane or as a last resort a police officer may use an equipment violation if they suspect a motorist is driving DWI. Importantly, weaving or swerving IN a lane is not a traffic infraction and does not constitute reasonable suspicion. People v Culcross, 184 Misc. 2d 67. A stop for unsafe lane change requires a driver to signal each time when changing lanes as well as turning. People v Rice, 44 AD 3d 247. Lastly, stopping a car and approaching it with guns drawn based upon an anonymous report was improper, where there was no reasonable suspicion. People v Heapps, 13 AD 3d 107.

Reasonable suspicion is the standard the police must use to pull over a motorist. This is always the first line of attack when defending a traffic ticket or a move serious charge such as DWI, DWAI, DUI or even traffic stops that result in other charges such as drug or gun charges. Reasonable Suspicion is that amount of knowledge sufficient to justify a stop.

If you have any questions about when can the police pull you over contact one of the attorneys at Riebling, Proto & Sachs, LLP. We offer a free consultation. Our attorneys regularly appear in the traffic Courts of New York State including the New York TVB and the local justice Courts. Our main office is in White Plains, New York but we also have offices in the Putnam and Orange Counties.

Our attorneys work to protect your license and insurance rates.

Good luck on the road.