New York Criminal Lawyer Blawg

There have been several questions about I-684 in Westchester County, New York and what appears to be an increase in DWI arrests and an increase in Traffic Tickets issued most notably for speeding even at fairly low speeds. At Riebling, Proto & Sachs as criminal defense attorneys in Westchester County we are very familiar with I-684 and the local courts.

I-684

I-684 is a limited access major north/south highway in Westchester County, New York and Greenwich, Connecticut (1.5 miles). The total length of I-684 is 28 miles and at the southern end connects with the Hutchinson River Parkway and the northern end connects with New York Route 22. I-684 for the most part runs alongside New York Route 22. At Exit 6 there is a major junction with the Saw Mill River Parkway that also runs North/South in Westchester County. Located at Exit 9 is the major junction for I-84 west (Newburgh) and east (Danbury, CT). Lastly, I-287 connects at the southern end of I-684, west towards the Tappen Zee Bridge and east to Rye. The design of the road is commuter based it consists of three lanes in each direction and is relatively flat and straight.

Police Activity on I-684

The entire length of I-684 is patrolled by the New York State Police including the 1.5 miles in Connecticut. They are responsible for everything from assisting with broken down vehicles, traffic accidents, issuing traffic tickets, such as speeding, and DWI enforcement.

The New York State Police will usually position themselves at the center of the highway in the U-turn cut outs for DWI and traffic ticket enforcement. They will also regularly patrol the two rest stops on I-684, southbound the Town of Bedford rest stop and the northbound rest stop (Brewster).

Rarely will I-684 be patrolled by the Westchester County police as they patrol the Saw Mill River Parkway and the Hutchinson River Parkway. The local police departments patrol the secondary Town and Village Roads.

All New York State Police traffic tickets are issued on two pages of paper the first page is the Uniform Traffic Ticket (UTT) and the second is the supporting deposition. The last letters of the UTT number should be "SP" the State Police designation.

The I-684 Courts

Depending where you are on I-684 this will dictate what local court you may need to appear in to answer a DWI or Traffic Ticket. From the South at the Hutchinson River Parkway moving north the local courts include North Castle (Armonk, NY), Mount Kisco, Bedford, Somers, North Salem/South Salem, Brewster and Southeast. The busiest Courts include North Castle, Bedford, Somers and Southeast. The Town of Bedford and Southeast alone have hundreds of traffic tickets per month and are among the highest revenue generating courts in New York State.

In Westchester County any State Trooper Traffic Ticket is prosecuted by the local Town or Village prosecutor while the Westchester County District Attorneys Office will prosecute DWI and other misdemeanor cases (The District Attorney's local office is in Mount Kisco, New York next to Northern Westchester Hospital). The Town of Southeast has the same procedure but is located in Putnam County, New York.

DWI and Traffic Ticket Defense in Westchester County, New York

The best defense to any traffic ticket or DWI charge is to start early. It is also important for the criminal defense attorney to gather as much information as possible to aid in the defense.

The firm of Riebling, Proto & Sachs regularly appears in all the Courts along I-684. We are also former prosecutors in those Courts. DWI and Traffic Tickets need to be aggressively defended. Call our office for a free consultation.

The crime of Driving While Intoxicated (DWI) falls under the New York State Vehicle and Traffic Law. In defending a DWI charge in New York State the best criminal defense lawyers will explain to their clients what proof is necessary for a conviction. The criminal defense of a DWI charge in New York State usually focuses on what proof the District Attorney has against the accused. In Westchester, Putnam, Rockland, Dutchess and Orange Counties the criminal defense attorney has an early opportunity to review the proof.

The Charge of DWI

There are several charges under the DWI laws in New York State. Those charges include DWI based upon a BAC reading of .08 or greater (VTL 1192.2), DWI per se based upon the officers observations (VTL1192.3), Aggravated DWI with a BAC of .18 or above (VTL 1192 (2-a)(a)), DWI with a child in the car (VTL 1192 (2-a)(b)) or even DWAI by drugs (VTL 1192.4). These charges can be either felonies or misdemeanors depending on the accused history and/or facts of the case.

Understanding the BAC .08 DWI charge (VTL 1192.2)

To understand DWI in New York State it is best to review the pattern jury instructions that a judge must follow to find an accused guilty of the charge. The top DWI lawyers or litigation attorneys in general know that these instructions are the most important aspect of any case.

The pattern jury instructions are also helpful for a non-attorney to clearly understand the issues since they were written for non-attorneys to clearly understand the charge in a jury trial situation. Even if there is no jury these instructions will be used for the judge to determine guilt.

DWI Defense Strategy

Prior to trial, the jury instructions must be consulted by the DWI attorney to determine if the government can prove the charges against an accused. All proof by the government must be "Beyond a Reasonable Doubt".

DWI - Misdemeanor/Felony BAC above .08 Jury Instructions

"Under our law, no person shall operate a motor vehicle while such person has a .08 of one per centum or more by weight of alcohol in the person's blood as shown by a chemical analysis of such person's blood, breath, urine or saliva"

This is what the government needs to prove. The instructions further define the crime as follows:

"Motor Vehicle means every vehicle operated or driven upon a public highway (private road open to motor vehicle traffic or a parking lot) which is propelled by any power other than muscular power"

"Operate a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion and when the motor vehicle is moving or even if it is not moving the engine is running"

BAC test "In this case the device used to measure blood alcohol content was ____. That device device is a generally accepted instrument for determining blood alcohol content". "You must consider the qualifications and reliability of the person who gave the test , the lapse of time between the operation of the motor vehicle and the giving of the test, whether the device used was in good working order at the time the test was administrated and whether the test was properly given."

When charged with any type of DWI crime it is essential to know the elements of the crimes (as noted above) and the proper defenses. An aggressive strategy is usually the best criminal defense.

Ask for an Attorney!

When accused of a crime it is very important to ask for an attorney. The goal of the police is to collect evidence that can be used against an accused at trial. The best criminal defense attorneys always tell there clients to request an attorney if under a police investigatio. The police will go to great lengths to get a statement from an accused but the best statement is "I want a lawyer"

BAC Test and Request for an Attorney

In People v Mora-Hernandez, 77 AD3d 531, the court properly suppressed the results of the defendant's BAC test and a videotape of the test because the officers violated the defendant's right to counsel.

When a defendant who is arrested for driving while intoxicated (DWI) and asks for an attorney he has the right to consult with an attorney before deciding whether to take a sobriety test.

By ignoring the defendant's request for counsel before they administrated the test, the police prevented him from contacting his attorney even though there was no indication that granting the request would have substantially interfered with the investigation.

In the case there was no proof the defendant ever abandoned his request for an attorney.

In the defense of a DWI charge in New York State the DWI criminal defense lawyer needs to first properly evaluate the case by obtaining information from the client and information from the prosecutor. Knowledge of the Facts is important to the DWI Lawyer and the DWI defense. In Westchester and Rockland Counties most of the paperwork needed is provided at arraignment. In Orange and Putnam Counties the District Attorney will mail the required paperwork. In the Bronx and NYC the paperwork exchange can be a combination of in court exchange and mail.

It is important to remember that the prosecution has the burden of proving every element of the crime beyond a reasonable doubt. The best DWI attorneys know that the DWI defense does not have to eliminate every aspect of the prosecution's case but only weaken the DWI charge enough to force a favorable plea bargain or make it difficult/impossible for the prosecution to prove their case at trial.

The legal strategy behind any DWI defense is complex but there are major legal areas and arguments that the DWI attorney will need to know and investigate. The following is a list of the major DWI criminal defense issues.

1. The stop of the client's vehicle was improper: The police need a reason to stop any motorist's vehicle. Usually this comes in the form of a traffic violation, accident or checkpoint stop. Stopping a vehicle without reason or because the police saw the driver exit a bar is improper. If the stop of found to be improper the entire case will be dismissed.

2. Miranda Rights: Anytime the prosecution wants to use the motorist's statements against them at trial the prosecution has to show the statements were made voluntary and not subject to a custodial interrogation. Failure to properly advise the motorist of their Miranda rights could result in suppression of the statements at trial. A typical statement the prosecution would want to use is any admission of drinking.

3. Motorists Medical Problems: The top DWI lawyers will want to know if the client has any medical problems that can affect any of the field sobriety tests such as back, leg, arm or knee problems. Age is a factor as well. Even if a person is overweight they may have difficulty performing the field sobriety tests (walk and turn, one leg stand, etc.). Medical issues are commonly overlooked but are very important to the DWI defense.

4. Field Sobriety Tests: The police use these "tests" to determine levels of intoxication but these tests are never done in ideal conditions and are not 100% accurate. Usually the tests are conducted at night, on the side of the road, on uneven pavement, with lights flashing, in bad weather, while the motorist is tired and scared, without proper instruction. DWI criminal defense lawyers know that these tests are only approximately 65% accurate!

5. Videos: In Westchester County and most other counties almost all police cars are equipped with video cameras most with sound. It is very important for the DWI criminal defense attorney to obtain those tapes and review them carefully.

6. Defense Witnesses: The DWI attorney needs to interview any witnesses that can testify in the client's defense. Unusually these are friends or family members who were last with the client and can testify to the condition of the client just prior to the arrest.

7. The Breath Test, Chemical Test, Urine Test and Blood Test: Usually the evidence the prosecution relies heavily on is the Blood Alcohol Content (BAC) reading. The DWI lawyer does have ample opportunity to attack the results of these tests. The BAC level is attacked by investigating that the machine was properly calibrated, the operator is properly licensed, the solution is up to date, there was a two hour waiting period before the test, all procedures were followed, and Radio Frequency upon the machine. If blood or urine was properly preserved before the test is important to investigate as well. The BAC reading usually has an error rating of .01%, therefore a .08& BAC could be a .07% reading.

8. Mouth Alcohol: There are many other factors that can affect the BAC levels, including mouth alcohol, food in the mouth, dental work, burping, cold medicine and even heartburn or indigestion.

9. DWI Drugs: Under VTL 1192.4 once can be arrested for DWI Drugs. In order words drugs not alcohol is alleged to be the reason for impairment. One commonly overlooked aspect of these types of cases is the failure of the police to use a Drug Recognition Expert (DRE) to determine the level of impairment. If a DRE officer is available most of the findings of the DRE can be shown to be subjective at trial.

10. Rising BAC Levels: At the time of the arrest a client may have a BAC level of .07% but by the time the BAC test is preformed the BAC level can rise to any amount. The important part of the DWI defense is to determine if the BAC level was on the rise from the time of the arrest to the time the test was preformed.

These are only some examples of how to defend a DWI arrest. Every defense needs to be explored by the DWI criminal Defense lawyer so the client can make an informed decision regarding how the case should proceed.

Never be afraid or embarrassed to ask your attorney questions it will help in the DWI defense and all conversations with an attorney are confidential.

In New York State the Blood Alcohol Content (BAC) levels are very important to defend a Driving While Intoxicated (DWI) charge. Usually at arraignment on a DWI charge the accused will be presented with a BAC test result that the prosecution intends to use as evidence against the accused. In a New York DWI case the level has very specific meaning under the Vehicle and Traffic Law. The best criminal defense lawyers can explain what the levels are and how to attack the BAC test results.

In general the legal effect of a BAC reading are as follows:

1. BAC of .02% to .07% by a driver under the age of 21 years will result in a loss of a license. Zero Tolerance Law.

2. BAC of .05% or less is prima facie evidence that the accused was not impaired or intoxicated. VTL 1195(2)

3. BAC of over .05% but less than .07% is prima facie evidence that the accused was not intoxicated. It is relevant evidence but not prima facie evidence of impairment. VTL 1195(2).

4. BAC of .07% or more but less than .08% is prima facie evidence the accused is not intoxicated. VTL 1195(2).

5. BAC of .08% or more is per se Driving While Intoxicated (DWI). VTL 1195(2).

6. BAC of .15% or more or a refusal will require a mandatory drug and alcohol screening.

7. BAC of .18% or more is aggravated driving while intoxicated. VTL 1192(4-a).

The charges based upon a BAC reading are as follows:

Driving While Ability Imparied DWAI - BAC .05% to .07%,
Driving While Intoxicated DWI - BAC .08% to .17%
Aggravated Driving While Intoxicated - BAC of .18% or more

It is important to understand the BAC levels as they have an impact on the accused driver's license and type of charge to be imposed. In addition the BAC levels have been unsaid by some District Attorney's offices to analyze the case for dismissal, plea bargain, or trial.

In Orange County, Westchester County, Putnam County and Rockland County very close attention is paid by the prosecution to the BAC results. Some counties even use the test result as a bright line rule regarding the case.

The DWI defense starts with the BAC reading since most District Attorney offices rely heavily on the results.

Under the New York State DWI laws there are several types of driver's license suspensions that a court and/or DMV can impose. The top DWI lawyers will be able to discuss the fine differences in each of the DWI suspension laws. In this DWI blog we address the "Prompt Suspension Law" that a motorist can face sometimes even prior to talking to a DWI lawyer. Usually in counties such as Westchester, Orange, Rockland, Putnam and Dutchess a motorist will be brought before a judge without the benefit of an attorney since most of the courts in those counties are part time. The Prompt Suspension Law is the first DWI suspension a motorist may face.

The DWI Prompt Suspension Law falls under VTL 1193(2)(e)(7) and applies to an accused who is charged with DWI and who is alleged to have a blood alcohol content (BAC) of more than .08% at the time of the arrest. At this point the Court will suspend the motorist's license during the pendency of the case if certain requirement under Pringle v Wolf, 88 NY 2d 426 are met.

The second DWI Prompt Suspenion Law under VTL 1193(2)(e)(1) applies where a motorist is charged with DWI, Aggravated DWI, DWAI drugs or a combined charge and who either has been convicted of a prior DWI VTL 1192 in the past five years or is charged with vehicular assault or vehicular homicide in connection with the DWI arrest.

Lastly, the DWI law under VTL 1194(2)(b)(3) applies to a motorist who is charged with a DWI under VTL 1192 and who has refused to submit to a chemical test.

Prior to the enactment of these laws the prosecutor would seek to suspend a motorists license under VTL 510(3-a) but since these new DWI laws for the prompt license suspension have been enacted it should be argued that the prosecution can not use VTL 510 to suspend a driver's license to get around the above requirements.

Since most people rely on their driver's license for work, school and/or medical appointments it is very important to discuss the prompt suspension law with a DWI attorney. The best DWI defense will hold the prosecution to their burden or proof to protect the motorists license.

Leandra's Law

Under the new DWI law in New York State the penalties for a DWI conviction either a felony or misdemeanor have changed to include the mandatory ignition interlock device. Under Leandra's law any person sentenced for a DWI felony or misdemeanor on or after August 15, 2010 must have an ignition interlock device installed on any vehicle they own or operate and a ignition interlock restriction will be posted to the back of the New York State driver's license under the DWI law.

The New York State DWI Leandra's law includes the following:
1. Aggravated DWI with a child 15 years old or younger in the vehicle
2. Any conviction for Aggravated DWI with a child in the car or Aggravated DWI with a BAC reading of .18 percent or more the sentence must include the ignition interlock for at least six months.
3. Any DWI conviction with a BAC of .08 or more must include the ignition interlock as part of the sentence.

Basically, any convition in New York State of DWI with a BAC reading of .08 percent will require the ignition interlock device.

Ignition Interlock Device

An ignition interlock device is a computer installed in a vehicle to measure the BAC of a driver before the vehicle will start. It requires the operator to blow into the machine to determine a BAC level. If the BAC level of the operator is .25 or above the car will not start.

The device is sophisticated. It will register the time of the test, the BAC level, may require an additional test at random intervals and some systems have a camera attached to record who is blowing into the device. All of this information can be downloaded by the provider.

The costs for installing this device usually fall upon the convicted driver. It is approximately $100 dollars for installation and a monthly fee of $75.00 to $100.00 applies.

When reviewing a DWI case in New York State the New York DWI lawyer must be aware of the new Leandra's Law and the ignition interlock device. It is important to know all of the consequences of a DWI felony or misdemeanor conviction and how that conviction will affect ones ability to drive in New York or elsewhere.

As driving for work, medical appointments, school and leisure is very important a review of the law is necessary in any DWI defense.

The DWI Checkpoint or Sobriety Checkpoint or Roadblock

In DWI cases in New York or Westchester County, Putnam County, Rockland County, or Orange County the New York DWI laws and District Attorney policy's have become very strict. This is likely in response to high profile DWI cases in New York State particularly Westchester and Putnam Counties. These high profile cases are for the most part the exception to the average DWI case. Checkpoints or Roadblocks are part of both Felony DWI, Misdemeanor DWI or DWAI arrests.

In order to maximize police resources police departments rely on large sweeping patrols for DWI offenders such as the DWI Sobriety Checkpoints or DWI Roadblocks. This is designed to obtain as many arrests as possible without excess police patrols.

DWI defense in New York the best DWI lawyers will aggressively attack the DWI checkpoint as that forms the basis for the entire DWI arrest. Westchester, Orange and Putnam counties in particular use DWI checkpoints to net large amount of arrests.

In attacking the checkpoint or DWI Roadblock it is important to understand New York State DWI law as it pertains to the checkpoint. The leading case is People v Scott, 63 NY2d 518.

In Scott the New York State Court of Appeals held that DWI checkpoints or roadblocks must be established pursuant to a written directive of the County Sheriff for the purpose of detecting and deterring driving while intoxicated or while impaired. The police are prohibited from administrating sobriety tests unless they observe listed criteria indicative of intoxication which gives substantial cause to believe the operator is intoxicated.

DWI Roadblocks to be constitutional must meet the following criteria:
1. May not intrude to an impermissible degree upon the privacy of motorists approaching the checkpoint.
2. Must be maintained in accordance with a uniform procedure which affords little discretion to operating personal
AND
3. Must utilize adequate precautions as to safety, lighting, and fair warning of the existence of a checkpoint.

In the follow up DWI checkpoint or roadblock case of Scott the Court of Appeals further held in the case of In re Muhammad F., 94 NY2d 136 that limiting the discretion of officers in the field is of decisive significance in determining whether a checkpoint type stop of a vehicle is Constitutional.

Every top DWI lawyer should have a firm understanding of the police department's checkpoint because if the checkpoint is deemed Uncontitutional then the entire arrest will be suppressed.

The best criminal defense in a DWI case or any other criminal matter always starts with the basis for the arrest and in checkpoint or roadblock cases that is clearly defined.

New DWI Felony

It is now a class “E” felony to drive while intoxicated (DWI) with a child 15 years of age or younger in the car. In addition, if the defendant is the parent, legal guardian, or custodian of the child in the vehicle, the police MUST file a report with Child Protective Services (CPS).

Also, in Westchester County and other surrounding counties such as Rockland, Putnam, Dutchess, Orange and the Bronx it is common to see an additional charge of Endangering the Welfare of a Child (EWC) for such a DWI arrest.

This new felony change and the usual accompanying EWC charge are common and place a burden on the defendant not only with respect to a criminal charge but also for school, employment and special licenses in addition to the penalties for DWI. It is common to have to address most of these penalties even before one is found guilty. Prompt legal representation is very important to address these issues to aggressively present the best defense.

Ignition Interlock Device — New Law

Beginning on August 15, 2010, courts will be required to sentence defendants after conviction for a DWI offense to probation or a conditional discharge a condition of which MUST be the installation and maintenance of an ignition interlock device in any car owned or operated by the defendant for the duration of the probation or conditional discharge or 6 months, whichever is longer.

The cost of the installation and maintenance must be paid by the defendant unless the court finds that the person is financially unable to afford the cost in such cases the court may waive the cost or impose the cost pursuant to a payment plan.

DWI Law Updates

For more information about the DWI law changes or DWI laws in New York State in general feel free to contact our firm. We appear in all courts in New York including Westchester, Putnam, Dutchess, Orange, Rockland and New York City.

During a trial the government needs to prove each and every element of a crime. In cases such as petit larceny, assault, weapons possession, driving with a suspended license (AUO) (511(1)(a)) and other similar crimes a lab report is not needed. But in cases such as DWI, DWAI, DWAI drugs and drug cases such as criminal possession of a controlled substance and criminal sale of a controlled substance a lab report will be needed to be introduced at sometime during the trial.

District Attorneys have relied on certified records to introduce certain lab reports in DWI, DWAI, DWAI drugs and other drug cases instead of having the actual lab analyst testify. This seems to be changing with the most recent US Supreme Court case as outlined below.

Lab Reports at Trial in DWI, DWAI, DWAI Drug and Drug Cases

At trial for an offense involving any Laboratory Report (usually a drug, DWI or gun charge case) the confrontation clause of the sixth amendment requires a criminal accused to be confronted with the testimony of lab analysts.

The United States Supreme Court in Melendez-Diaz v Massachusetts, 129 S Ct 2527, held that a lab analyst’s certificate is testimonial and can not be admitted unless the analyst was unavailable to testify at trial and the accused had a prior opportunity to cross-examine the analyst.

DWI Blood/Breath Test Lab Reports

In Nassau County after a DWI trial the court sustained the defendant’s objection to the admission of the calibration log of the breathalyzer machine used to test his blood alcohol level as a certified business record and required the prosecution to present live testimony from the lab technicians who preformed the calibration.

The Best Criminal Defense

The best criminal defense is one that holds the government to their burden on each and every element of the crime. This is especially true of DWI, DWAI, DWAI Drug and other Controlled Substance cases where a lab report is necessary. In Westchester, Rockland, Bronx, Orange, Putnam and Dutchess counties the government will have their own report usually from the County Department of Lab and Research. These lab reports must be attacked for their accuracy. This additional requirement that the government bring the actual analyst into court is helpful to the experienced criminal defense attorney and the accused since it opens the door to in depth cross examination.

White Plains City Court Criminal Defense

In the City Court of White Plains there has been an increase use by the department of labs and research in Westchester County of “preliminary” lab reports to support DWI, DWAI, DWAI Drug and other drug charges. These lab reports are the very reports that need to be scrutinized for their accuracy and demanding the actual lab analyst to testify will help any criminal defense.

Southeast DWI Criminal Defense

Likewise, for any criminal defense for a DWI, DWAI, DWAI drug charge in busy DWI courts such as the Town of Southeast in Putnam County (Brewster). These lab reports must be scrutinized as they usually are the prosecutions strongest form of evidence.

DWI arrest & BAC level

In a DWI arrest the police will need to use a method to test the Blood Alcohol Content (BAC) of a driver’s blood to determine if the driver is intoxicated or impaired after consuming alcohol. The most common method is to have the motorist blow into a machine to test the alcohol level in the motorist blood. The machine looks like a large computer and has a keypad in the front. After blowing into a tube for a few seconds the machine will test the motorist’s breath and submit a result to the police. The machine’s calibration in any DWI test must be investigated and attacked.

Proof of Breathalyzer Calibration

In New York State the proof necessary by the prosecution in a DWI case is that the Breathalyzer was in proper working order at the time the test was administered to the motorist. The prosecution has this burden at trial and must prove this element beyond a reasonable doubt. The prosecution typically introduce into evidence a document entitled “record of calibration/maintenance.” This is also called the certificate of calibration of the Breathalyzer.

What is a Calibration?

In the field of DWI defense “calibration” refers to the inspection, calibration and repair of the breath test devices by specially trained technicians at facilities such as the New York State Police Crime Laboratory or the New York State Division of Criminal Justice Services Office of Public Safety. This calibration is NOT the weekly test conducted by the police officers at the police station. This is a much more complex test for calibration.

Suppression of a Breath Test due to Calibration

In People v Todd, 79 Misc.2d 630, a breathalyzer had not been calibrated for six months and the People failed to establish that the breathalyzer apparatus had been timely calibrated hence the results of the test were inadmissible. It is incumbent upon the District Attorney to show that the machine was in proper working order.

Todd Six Month Calibration Rule

Although lower courts have expanded the six month rule with respect to the calibration of a Breathalyzer the Court of Appeals has never reversed or altered its six month rule. This is something that the best criminal defense DWI lawyers must investigate when defending a DWI arrest.

New Breathalyzer Machines

The New York State Police have chosen to calibrate their newest breath test device, the Draeger AlcoTest 7110 MK III (Draeger) only one a year. Regardless the prosecution must lay a sufficient foundation as to the reliability of the Draeger. The Todd rule should apply and the government can present expert witnesses to prove calibration.

DWI Defense Lawyers

At Riebling, Proto & Sachs, LLP our DWI defense lawyers investigate every aspect of a DWI arrest. The best DWI defense will take advantage of every opportunity to limit the government’s case or have the case dismissed outright. The calibration of the breathalyzer is only one part of the defense to a chemical test of a motorist’s breath test but an important part since the local police have no control over the calibration and usually have no idea how the machine is calibrated.

Free Consultation on all DWI arrests and cases

To have your case reviewed for Free call our office. We represent clients in Westchester, Orange, Rockland, Putnam, Bronx & Dutchess Counties. Our attorneys are former prosecutors and dedicated to reviewing your matter and providing you with the best criminal defense. The Breathlyzer calibration is an important part of a DWI criminal defense and our Westchester County DWI lawyers will review your case, identify the best defense and give you candid straightforward advice.

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.

A topic of usual concern for clients involved in both Family Law Cases and Criminal Defense Cases is the issuance of an order of protection by the court. The attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Family Courts and Criminal Courts of Westchester, Orange, Rockland, Dutchess, Putnam, the Bronx, Brooklyn, Queens, and New York to defend clients against the issues that arise when an order of protection is issued.

An order of protection may be granted in a number of different cases pursuant to various criminal and civil statutes, including Criminal Procedural Law sections 530.12(1) and 530.13(1); Articles 3, 4, 5, 6, 7, 8 and 10 of the Family Court Act; and Section 240(3) of the Domestic Relations Law. Generally, orders of protection fall under two categories, temporary and permanent. A temporary order of protection is typically made during the pendency of the action. A permanent order of protection is usually issued at the conclusion or disposition of the case. Frequently, temporary orders of protection precede permanent orders of protection.

New York Law prohibits the extension of an order of protection to a person(s) unrelated to the underlying criminal action. See People v. Konieczny, 2004 WL 1263762 (N.Y. 2004). The order of protection may cover the complainant and family or household, but not beyond. People v. Petrusch, 306 A.D.2d 889.

Orders of protection may also be issued in instances where the person being “protected” by the order opposes the terms of the order of protection and does not want the defendant being barred from contacting him or her. People v. Monacelli, 299 A.D.2d 916. This particular event often occurs in cases involving spouses and families.

In criminal cases, an order of protection may be part of the court’s order allowing for the defendant release from custody. CPL Sections 530.12 (family offenses) and CPL 530.13 (non-family offenses). At times, a court may issue an order of protection on its own, based upon “good cause shown”, when an accusatory instrument (complaint) is filed by the prosecution. In such an instance, the defendant has a right to contest the issuance of the order of protection in those circumstances where a constitutionally protected right, such as being excluded from the defendant’s residence or being prohibited from contacting the defendant’s family, is restricted.

Also, a court can suspend or revoke a pistol permit and possession of firearms. A defendant has a right to hearing on the issue of firearms. It should be noted that a violation of an order of protection due to firearm possession is also a violation of federal criminal law.

By understanding these important aspect of the law as they pertain to orders of protection, the criminal, matrimonial and family law (child custody, child support, family offense) trial attorneys of Riebling, Proto & Sachs, LLP continue to successfully assist their many clients.

If you or someone you know needs the assistant of a criminal, family or matrimonial attorney, please contact Riebling, Proto & Sachs, LLP for a free consultation. The firms trial attorneys regularly appear in the courts of Westchester, Bronx, Rockland, Putnam, Dutchess and Orange Counties in New York State.

BAC READING OF .08%

At an arraignment on a Driving While Intoxicated (DWI) charge the Court is required to suspend your New York State driver’s license or privilege to drive in New York State if a Blood Alcohol Contant (BAC) reading is at or above the legal limit of .08%.

There are certain findings a Court must make before they suspend you license pending prosecution but that will be addressed in another blog post. However in sum, if the Court finds the paperwork sufficient that your BAC was .08% or greater they will suspend.

NEW YORK PROMPT SUSPENSION LAW

The New York Prompt Suspension law is the law which suspends your license at arraignment. Many times an accused will appear at arraignment without an attorney and be told to surrender their license due to this law. Almost everyone hands over their license without a full understanding of what just happened and at that moment realize they need an attorney.

Under the Prompt Suspension Law you will not be able to drive for at least 30 days. In most cases the accused relys on their driver’s license and the consequences of not having a license to drive are devastating. The Court has recognized the impact of not having a driver’s license for at least 30 days and has allowed the Courts to grant a “Hardship Privilege” to allow the accused to drive under certain curcimstances until the DWI paperwork is processed by DMV and the accused can apply for a Conditional License. Usually this takes 30 days.

THE HARDSHIP PRIVILEGE

VTL 1193(2)(e)(7) governs the Hardship Privilege. If the Court finds that the prompt suspension of the accused driver’s license will result in a “extreme hardship” the court must issue such suspension but may grant a Hardship Privilege to allow the accused to drive under certain circumstances. The accused driver’s license is still suspended but a document is issued to the accused from the Court at arraignment allowing the accused to drive for a limited purpose.

What is an Extreme Hardship?

An Extreme Hardship is an inability to find alternative means of travel to or from the licensee’s employment, school or medical treatment.

In order for the accused to prove this Extreme Hardship they are entitled to a hearing within 3 days of the arraignment. This fact is rarely told to an accused without an attorney and is a vital right to protect ones driver’s license.

The accused must present proof at the Hardship Hearing that there is no alternative means of travel such as family, friends, co-workers, taxis, buses or trains. The accused must also have some evidence to corroborate that without a license it will be an Extreme Hardship in that they may lose their job, fail school or miss medical appointments. A witness to corroborate these facts is usually necessaryat the hearing. The District Attorney will have an opportunity to be heard on this issue and cross examine any witnesses including the accused.

THE PURPOSE OF A HARDSHIP LICENSE

The Hardship License is for a limited purpose. The license will not allow an accused to drive as part of their employment (taxi driver, traveling salesman) or travel at inconsistent hours. Also, a Hardship License can not be used to operate a commercial vehicle.

It is always a good idea to contact a DWI lawyer immediately after the arrest. In some cases I have had my clients call me at the police station. At Riebling, Proto & Sachs, LLP our DWI lawyers are always available to answer your questions and prepare you for every court appearance. We offer a Free Consultation and can appear in Court on a moments notice.

The best DWI defense is to be prepared at every stage of the process. Our attorneys protect your rights in every type of DWI case and will be happy to meet with you. If you have any questions or concerns please feel free to contact us.

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.