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.

The Criminal Charge and Defense

Under New York criminal law the criminal defense attorney has the right to file a written motion to dismiss any criminal charges. The motion can also contain a demand for other relief for the accused but the main goal of the motion is a dismissal of the case.

Recently in Dutchess county in the Town of Kent a motorist was charged with DWI and in Westchester County a motorist was charged with DWI in Mount Vernon. A motion to dismiss can be made in any court for these types of cases or for other offenses such as a drug charge, sex offense, white collar crime. The top criminal defense attorneys prepare for the motion to dismiss as soon as possible.

The Omnibus Motion

The Omnibus Motion is a motion that must be filed within 45 days of the accused's arraignment. The Omnibus Motion is a motion to dismiss and for all other relief the accused is seeking. The Omnibus Motion usually includes the following:

1. Dismissal of the case
2. Motion for Discovery
3. Hearings on Statements made by the accused
4. Identification evidence of the accused
5. Suppression of evidence
6. Review of Grand Jury minutes
7. Suppression of the accused's bad acts and prior convictions
8. Sever the charges
9. Server co-defendants
10. Change of venue

The examples above are the primary examples in a criminal defense motion.

Sufficiency of the Motion

The criminal defense attorney must be careful to be sure the Omnibus Motion is sufficient. The motion usually consists of a statement of facts by the attorney and a memorandum of law by the attorney but equally important is a sworn statement by the accused regarding the case and the issues to be resolved. The criminal defense attorney will interview the client and write the statement for the client's signature.

The statement is important because it will be a first hand sworn accounting of what took place. For example in a drug case the accused has first hand information on the police's actions.

The Judge's Decision

The judge will usually issue a written decision on each issue raised in the defense attorney's motion to dismiss including dismissal of the entire case. This decision will provide information about how the case will proceed.

The Criminal Courts

In New York State the criminal court system can be very confusing. Often New York residents charged with a crime and out of state criminal defendants and/or their family's are confused over the process and the court system in general. Every criminal defense attorney needs to know the entire criminal court system in New York and even the extension of various offenses in the New York Family Court. This is a review of those courts.

Superior and Local Courts

The New York State Criminal Procedure Law (CPL) defines Superior Courts (County and Supreme Court) and Local Criminal Courts (New York City Criminal Court, City Courts, District Courts (Long Island), Town Courts and Village Courts).

Superior Courts hear felony cases and Local Courts hear misdemeanor cases. Where one is arrested and for what crime dictates the Court.

The Local Court

A defendant charged with misdemeanors only will start and stay in the local criminal court. A defendant charged with only felonies can start in a Local Court but must be prosecuted in a Superior Court. If there are multiple charges including at least one felony all the charges must be heard in the Superior Court.

For example, a DWI arrest in the Town of Bedford, New York will be prosecuted in the local Town of Bedford Justice Court. If the DWI charge is not a felony the entire case will be heard in the Bedford Justice Court. If the DWI charge is a felony the initial proceedings will start in the Bedford Court but must be prosecuted in the Superior Court. If the felony charge is reduced to a misdemeanor the case will stay or be returned to the Bedford Court.

Another example, the Westchester local City courts include, White Plains City Court, Yonkers City Court, Mount Vernon City Court, Rye City Court, New Rochelle City Court and Peekskill City Court.

Local Town Courts include Mount Pleasant, Rye, Somers, Mount Kisco, Greenburgh, Ossining, Bedford.

The Village Courts include, North Castle (Armonk), New Castle (Chappaqua), Tarrytown, Sleepy Hollow, Elmsford, Ardsley, Dobbs Ferry, Irvington, Bronxville, Scarsdale, Larchmont, Mamaroneck, Harrison, Port Chester, Rye Brook, Croton on Hudson, Hastings on Hudson, Tuckahoe, Cortlandt, Pelham

The Superior Courts

Superior Courts hear Felony cases in Supreme or County Court. At times a Superior Court judge may assume the role of a Local Court judge to accomplish some procedural aspect of a case but the important point to remember is that felonies are heard in Superior Courts.

Felony Cases

In New York City felonies are usually immediately indicted by a Grand Jury so that they will be heard exclusively in the Superior Court. Outside of New York City most felonies are not immediately indicted and proceed in the local criminal court by Felony Complaint as opposed to Indictment.

For example, a defendant is charged in the City of Yonkers with a drug possession felony charge. The defendant will be arraigned in the Yonkers City Court, bail can usually be set and the defendant is entitled to a Felony Hearing to determine if the charge is supported by reasonable cause. Unless the felony is reduced to a misdemeanor the case will eventually be heard in Superior Court. If the defendant is indicted the case is transferred to Superior Court.

Specialized Courts

In New York State, depending on the County, a case may be transferred to a Specialized Superior Court even if the charges are misdemeanors. These specialized courts include Domestic Violence Courts, DWI Courts and Drug Courts. Not every County has the same Specialized Courts nor does every local court transfer cases to these Specialized Courts. This is something that needs to be reviewed on a case by case basis with a Criminal Defense Attorney.

Criminal Court and Family Court

In matters involving offenses committed against a family member the complainant can proceed in both the Family Court and the Criminal Courts in New York State. The complainant can also proceed in just one of these courts.

Having matters in both of these Courts can be complex. It can raise many issues involving various legal strategies and can impact on various custody and/or visitation rights. The top criminal defense lawyers will know the interplay between these two courts.

For example, a Family Offense Petition filed in the Putnam County Family Court can also be prosecuted in the local Putnam county criminal court. The charge will be the same usually with the exact set of factual circumstances. For example, criminal mischief (damaging the property of another) or Harassment. Issues involving statements, double jeopardy or testimony in Court can impact how these cases are resolved.

The New York State Criminal Courts is can be confusing because there are many different types of courts, Counties and procedures vary. A good understanding of the process and the courts will will help in making any decision for yourself or a loved one much easier. Always consult with a criminal defense attorney.

DWI Defense in New York

In any New York State DWI defense it is important to know the different BAC levels and how they are applied under the New York DWI laws. In Westchester, Orange, Putnam and Rockland Counties, DUI arrests include those with BAC levels below .08%. An arrest in New York with a BAC level under .08% will result in the charge of Driving While Ability Impaired (DWAI). The best criminal defense will attack the BAC levels.

How are BAC levels below .08% defined?

The DWI laws in New York identify a BAC level of.05% as evidence that the driver is NOT impaired. A BAC level of .07% is evidence of impairment. Of course, a .08% results in the charge of Driving While Intoxicated (DWI). The BAC level is the prosecutor's main tool in determining plea policies and strategy for trial. Therefore, in the New York DWI defense it is important to know the BAC amount and any possible margin of error (usually +/- .01%) to formulate the proper defense.

What is Divided Attention?

Police officers in any DWI or DWAI case are trained to look for certain cues to determine, without a BAC reading, if the motorist is intoxicated or impaired. The police are always looking for these cues. Divided Attention is the basis of these cues.

Divided Attention is the concept that is a motorist is impaired or intoxicated they can't do two things at the same time and instead will focus on the more important task while ignoring the least important task. The logic is that driving a car requires a motorist to do several things at the same time and alcohol or drugs prevents a motorist for doing those tasks. The prosecution will focus there case on divided attention therefore it becomes a DWI defense issue.

The Field Sobriety Tests (FST) (One Leg Stand, Walk & Turn) used by officers test divided attention. In the DWI defense it is important to realize that those tests usually can't be preformed even in the best of conditions. Even the police department's own manuals instruct the officers that the tests are only about 68% accurate yet they are used as the primary test for divided attention.

Cross Examination of the Police Officer

The DWI criminal defense attorney will attack the police officer by challenging the FST and the concept of divided attention. An officer will undoubtedly testify about the test and that the failure of the test was evidence of a loss of motor skills. To attack this testimony a simple strategy is to focus on what the motorist was able to do that never made it into a police report or was testified to at trial. For example, opening the window to speak with the officer is usually done without error. The cross examination would include:

1. You asked him to lower the window?
2. He responded to your request immediately and moved his hand towards the button?
3. You were watching his hands for officer safety?
4. His movements were normal?
5. His finger went to the button and lowered the window?
6. Without any evidence of loss of motor skills?

This is just one simple example of how to attack divided attention.

In any DWI defense it is important to attack the officer's findings and establish that the motorist's ability to drive was not impaired. The BAC level is only part of the evidence against an accused and with low level BAC readings attacking the concept of divided attention is the best DWI 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.

In almost every DWI case in New York State there are two tests of a motorists Blood Alcohol Content (BAC) but they are very different tests and treated under the DWI law in a different manner. Many DWI arrests in Westchester, Orange, Rockland, Putnam, Dutchess counties involve these two tests and create confusion for those arrested for DWI offenses.

This DWI blog will discuss the "breath screening test". By contrast a DWI Chemical Test is a test usually done via breathalyzer, urine or blood test. The breath screening test is the test usually preformed at the arrest scene utilizing a hand held instrument about the size of a cell phone. The motorist blows into this handheld device and a BAC number registers. Typically this number is greater than the later DWI chemical test.

A breath test pursuant to VTL 1194(1)(b) refers to a preliminary test of a DWI suspects breath for the presence of alcohol. The device used is called an Alco-Sensor or PBT. A refusal to submit to this breath screening test is a traffic violation.

The DWI Laws make it clear that a motorist is under no obligation to submit to a breath screening test unless the motorist has been involved in and accident or committed a VTL violation. This test is a search within the meaning of the 4th amendment and can only be done with probable cause.

Importantly the Alco-Sensor test is not admissible at trial but the Courts have held that testimony regarding the defendant's attempts to avoid giving an adequate breath sample for Alco-Sensor testing can be admitted into evidence as consciousness of guilt.

Commonly the District Attorney will try to have the test admitted at trial but the top criminal defense lawyers will object as the courts have held this test should not be admitted. In Westchester County DWI arrests the prosecutor usually asks the judge to allow testimony that the motorist failed the test but agree not to disclose the actual results. The best DWI criminal defense is to object to the prosecution strategy as it can prejudice the jury.

In any DWI defense the goal is to limit the amount of evidence the prosecution has against the accused. If enough evidence can be eliminated the productions case can become extremely weak. This is one type of evidence that can be excluded from a jurys consideration during a DWI trial.

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.

DWI Defense in New York - Prior Out of State Convictions

One of the consequences of a DWI Misdemeanor conviction is that a second DWI arrest within ten years will be treated as a felony in New York. Many questions arise in Westchester County or other jurisdictions about out of state DWI convictions and how New York State treats those out of state convictions with respect to a felony DWI charge in New York.

The best DWI defense attorney will research the out of state conviction to determine if the New York misdemeanor or felony charge is appropriate. Since Westchester, Rockland, Orange, Putnam and the Bronx are alleasy driving distance from Connecticut or New Jersey this is a more common analysis that needs to be done by the DWI criminal defense attorney.

Recently in People v Ballman, 15 NY3d 68 (2010), the New York State Court of Appeals addressed the issue of out of state convictions and how New York DWI laws apply to either the felony DWI or Misdemeanor DWI arrest charges.

In Ballman, the defendant was indicted for DWI as a felony (VTL 1192.3) and for second degree obstructing governmental administration. The prosecution filled a special information charging that the defendant has a 1999 Georgia conviction for driving with an unlawful alcohol concentration with would have been a violation of DWI (VTL 1192.2) had it occured in New York. This supported the DWI felony charge. The defendant's motion to dismiss was denied and he plea guilty to the New York DWI felony charge not the DWI misdemeanor charge. The defendant's conviction was reversed because the prior out of state conviction for DWI occurred before the effective date of the New York DWI statute of VTL 1192.8

The Court of Appeals held that the most reasonable interpretation of the New York DWI statute under VTL 1192.8 and it's enabling language was that out of state convictions from prior to November 1, 2006 cannot be used to elevate a DWI offense in New York to a felony DWI offense. The initial version of this provision VTL 1192.7 was enacted in 1985 to allow prior out of state DWI convictions for driving under the influence of drugs or alcohol to be considered when determining penalties for subsequent New York DWI offenses after November 29, 1985. Until then out of state convictions had not been considered for penalty purposes.

Amendements in 2006 ended the practice of treating all DWI prior out of state convictions as mere traffic infractions under New York Law.

The DWI statute in New York was amended to read as follows:

"A prior out of state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for the purposes of determining penalties imposed under this section....provided however that such conduct had it occurred in New York state would have been a violation of any provision of this section"

It also stated that if the out of state conduct would have been a violation of New York State DWI laws misdemeanor or felony under VTL 1192had it occurred in New York State but would not have constituted a misdemeanor or felony the conduct would be deemded a prior conviction for driving while ability impaired for purposes of determining the appropriate penalties. The enabling language accompanying the amendment indicated that VTL 1192.8 shall apply only to convictions occurring on or after November 1, 2006.

The best DWI lawyers will review any prior DWI felony or DWI misdemeanor to be sure the charge in New York is appropriate considering any out of state DWI conviction.

The Best criminal defense and the best criminal lawyers will tell you to NEVER speak to the police regarding any criminal investigation. Resist the urge to talk to the police as the prosecution will want to use statements regardless of Miranda warnings during a police interview. Always call a criminal defense lawyer immediately.

A good illustration of this principle is the recent Supreme Court case of Maryland v Shatzer, 559 US ___, 130 SCt 1213 (2010). This directly addresses the complex issue of Miranda and police interviews.

In the case the respondent was suspected of sexual abuse. In 2003, the police interviewed him while he was in prison on an unrelated offense. After being Mirandized, he signed a waiver but after the respondent learned the purpose of the interview he refused to speak without an attorney. In 2006, the investigation was reopened and he was interviewed again at the prison. He acknowledged his Miranda rights and signed a waiver. He was questioned for 30 minutes and after making admissions about the crime agreed to a polygraph test. Five days later, fresh Miranda warnings were given and a waiver was obtained the respondent the respondent failed the polygraph test and made inculpatory statements and asked for a lawyer.

His motion to supress the statements was denied and he was convicted.

The Supreme Count found that the case of Edwards v Arizona, 451 US 477 (1981) provided a second layer of protection over Miranda warnings by requiring the interrogation to stop when a request for counsel has been made and involuntariness in response to further questions is presumed. However, Edwards was found to be a judicially created rule and therefore shouldn't extend more than 14 days past the initial interrogation. A two week break from custody means the suspect is no longer isolated and is able to seek advice from an attorney, family member and friends.

The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of prolonged police custody by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission.

Where the suspect has been released from pretrial custody and returned to his normal prison life for 2 1/2 years before the next interrogation his change of mind in answering questions without counsel could not be presumed to have been coerced. Lawful imprisonment upon conviction of a crime does not create the coercive pressure identified in Miranda.

In this case since the respondent experienced a break lasting more than two weeks between the first and second attempts at questioning Edwards did not mandate suppression of the 2006 statements.

Always consult with a criminal lawyer before speaking to any police officer. This will provide the best criminal defense in any criminal action, felony or misdemeanor in New York, Westchester county or otherwise.

New York State DWI Law has been amended VTL 1194(4)(a)(1)

In NYS additional persons are now authorized to draw blood for the purpose of testing for alcohol or drug content. At the request of a police officer, the following additional persons may draw blood: certified nurse practitioner or an advanced emergency medical technician as certified by the New York State Department of Health.

The following additional persons may draw blood under the supervision and at the direction of a physician: a registered physician assistant or certified nurse practitioner acting acting within his or her lawful scope of practice or upon the express consent of a person 18 years are more from whom such blood is withdrawn, a clinical laboratory technician or clinical laboratory technologist.

With the amendment to the DWI laws in New York State additional people may draw blood to allow the government and the police greater options to get a blood sample. The best criminal defense to DWI both felony and misdemeanor charges is to attack the blood or breath result. It was common that the police would have an unauthorized person withdraw blood leading to suppression of DWI blood results in several felony DWI or misdemeanor DWI cases regardless of the class of felony or misdemeanor. With changing policy the government now has extra protection over those authorized to withdraw blood.

This additional authorization to withdraw blood in DWI cases (felony or misdemeanor) does not all ow the prosecution to offer the results into evidence without laying a proper foundation at trial. The person who withdrew the blood still is the best witness for the government at trial. Without the actual person who withdrew the blood in a DWI case there is a bases for suppression of the blood results.

Weschester County, Putnam, County, Rockland County and Orange County in New York all look to have blood results admitted into evidence at trial and part of the best criminal defense is to attack these results early and to look for any errors made by the government well before trial.