New York Criminal Lawyer Blawg

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.

Defending Multiple DWI Convictions

A second DWI charge within 10 years could be prosecuted as a felony. This felony prosecution is discretionary unlike a predicate felony — second felony offender, that the prosecution must pursue.

Both predicate felony offender status and felony DWI invlove a conviction within 10 years.

Predicate Felony

In calculating the time for a predicate felony, the law states that “sentencemust have been imposed more than 10 years before the commission of the felony” PL 70.06(1)(b)(iv).

Felony DWI Law

The felony DWI statute refers to committing the new offense “after having been convicted of” the predicate crime. VTL 1193(1)(c)(i).

This is an important distinction. It is very important in either a DWI felony sitiuation or a Felony under the Penal Law to know this difference.

A “conviction” is defined in the Criminal Procedure Law (CPL) as “the entry of a plea of guilty to, or a verdict of guilty upon an accusatory instrument” CPL 1.20(13). A judgment is the conviction AND the sentence imposed. Sometimes in criminal court the conviction will be months before the sentence. Usually this occurs when the Court orders a pre-sentence report from the Department of Probation.

Felony DWI Example

Where a motorist was sentencedon the prior DWI and occurred within the 10 year limit, but the motorist plead guilty or was convicted at trial more than10 years ago, felony DWI status should not apply. Therefore, where sentencing is adjourned this time delay should not be used at a later point to increase a seconf felony DWI to a felony.

Misdemeanor DWI

In any DWI offense this rule will apply. For example, two prior DWAIs within 10 years raises the current DWAI to a Misdemeanor from a violation.

Defense of a Felony DWI

In order to present the best criminal defense a criminal defense attorney in Westchester, Orange, Rockland, Putnam counties or elsewhere need to be aware of the date of arrest, conviction and sentence in order to properly defend a DWI felony charge.

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.

In New York State if a motorist is involved in an automobile accident and does not report that accident it can open the motorist up to criminal prosecution. There are two very different types of charges under the Vehicle and Traffic Law for leaving the scene of an accident without reporting. As white plains felony charges lawyers and traffic violations attorneys we want you to know the different classes of offenses and potential sentences for each.

Leaving the scene of a PROPERTY damage accident without reporting

VTL 600(1) provides that ” Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property … due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage occurred, stop, exhibit his or her license and insurance identification card for such vehicle, … and give his or her name, residence, including street and number, insurance carrier … and license number to the party sustaining damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer.”

A violation of VTL 600(1)(a) is a traffic infraction punishable by :

1. A fine of up to $250;

2. Up to 15 days in jail; or a 3. Both

Leaving the scene of a PERSONAL INJURY accident without reporting

VTL 600(2)(a) “Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification … to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.”

The level of the offense and the punishment depends upon if the mororist has ever committed this crime in the past and also the level of injury or death of the party. Leaving the scene of a Personal Injury Accident is a CRIME and ranges from a class “B” misdemeanor to a class “D” felony. The Sentences for Misdemeanors and felony range from fines, probation to jail.

Leaving the scene of a PERSONAL INJURY accident is a fingerprintable offense and a crime. Any conviction will result in a license revocation and the motorist will not be permitted to obtain a conditional license.

In any criminal defense its important to know the classes of misdemeanors and the types of misdemeanor crimes including felonies. Here in this case leaving the scene of a property damage accident is a noncriminal offense while leaving the scene of a personal injury accident is a crime.

If you have any questions how these charges are defended or how they relate to other charges such as driving while intoxicated (DWI) or driving while ability impaired (DWAI) contact my office for a free consultation.

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.

• THE TRAFFIC STOP

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

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

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

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

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

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

Our attorneys work to protect your license and insurance rates.

Good luck on the road.

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.

Traffic Tickets and the Best Defense

A common mistake is to look at a traffic ticket in New York and think, all is lost, there can be no possible defense. Usually there are several defenses to a traffic ticket and as any good criminal defense attorney will tell you it all starts with the traffic ticket itself.

In New York State traffic tickets are written for any crime or violation under the New York State Vehicle and Traffic Law (VTL). Tickets can be written for moving violations such as speeding, non-moving violations, equipment violations even DWI and DWAI Drugs. The traffic ticket is the basis for a prosecution and it the starting point for the defense to the charge.

1. The Ticket (Simplified Traffic Information)

The Ticket is usually a half page document, yellow in color, that a police officer would hand you on the side of the road. A State Trooper may provide you with a full page ticket (white in color) but usually its the front and the back of the “yellow” ticket on one page. The front of the ticket outlines the charge while the back has instructions regarding how to respond. The ticket is also known as a Simplified Traffic Information.

The sufficiency of a simplified traffic information is governed by the criminal procedure law. Because the traffic ticket is the local court accusatory instrument that provides the least amount of information. the recipient is entitled as a matter of right, upon a timely request, to a supporting deposition.

2. The Supporting Deposition

The supporting deposition is a document that explains the charge in greater detail. The supporting deposition must be completed by the police officer and must allege all of the elements of the offense. The statute provides that the allegations may be made upon personal knowledge or upon information and belief providing reasonable cause to believe that the driver committed the offense charged.

3. Probable Cause

The ticket and supporting deposition together must provide probable cause to believe that the traffic offense in questions was committed. A supporting deposition that contains boxes checked off by the police officer is sufficient.

4. Time to request a Supporting Deposition from the Police

In some cases a driver will receive a supporting deposition from the police with the traffic ticket, usually issued by the State Police, but in most instances the police officer will only provide a traffic ticket without a supporting deposition.

The request a supporting deposition must be made within 30 days of the court appearance noted on the ticket. Where the charge is a misdemeanor such as DWI or reckless driving the driver may request a deposition beyond the 30 day period up to 90 days with permission of the court.

5. The Plea

Always plea NOT GUILTY to a traffic ticket. In most cases an experienced criminal defense lawyer can get the charge dismissed or reduced. A guilty plea is the same as if you went to trial and were found guilty by the judge or jury. Your best option is to contact one of our experienced criminal defense lawyers to aggressively attack the ticket and its contents even before appearing in Court.

A plea can be entered in court on the date at the bottom of the ticket or by a signed statement on the ticket by mail. When pleading not guilty by mail, the plea must be sent by registered or certified or first-class mail and within 48 hours of receiving the ticket . A driver may plea not guilty by mail and request a supporting deposition. FAILURE to act in a timely matter will cause a loss of the right to the supporting deposition.

6. Service of the Supporting Deposition

The deposition must be provided to the driver within 30 days of the court’s receipt of the request for it OR 5 days before trial whichever comes first.

7. Failure to provide a Supporting Deposition

When the court orders the filing of a supporting deposition and the police officer fails to comply in a timely manner the ticket is rendered insufficient on its face and may result in a dismissal.

The above is one of the basic and best defenses to traffic tickets. Although there are many defenses this requirment always remains at the core. It is important to have a traffic ticket attorney since the police officer may try to submit a late supporting deposition or other method to prevent the case from being dismissed. Our traffic ticket attorneys are prepared to protect your rights and provide you with the best possible criminal defense either in a traffic ticket case, DWI case or other criminal matter.

If you have questions regarding your criminal matter or traffic ticket case call one of our attorneys for a free consultation.

The best defense is a strong understanding of the criminal procedure law and how each court operates 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.

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

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

The Miranda rights are as follows:

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

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

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

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

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

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

The statements were suppressed.

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

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

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

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

In New York State underage drinking and driving is a serious offense. It is important to contact a skilled DWI defense attorney to protect your or your child's rights in cases of underaged drinking and driving.

At Riebling, Proto & Sachs, LLP, our criminal DWI defense lawyers are prepared to appear in Court or at a DMV administrative hearing and fight for you. Our main goal is to protect you, your license and insurance rates. We are experienced Westchester Trial Attorneys.

The DWI Laws in New York State are as follows:

The DWI / DWAI Arrest

If you are under 21 years of age, driving and pulled over resulting in a DWI investigation, you will be taken to the local police department or State police barracks for the purpose of taking a chemical test to determine your BAC level.The chemical test is usually a breath test, blood test or urine test.

Once you BAC level has been determined you will be charged accordingly.

Administrative Hearing vs. Criminal Court for a DWI

The following is a breakdown of the Zero Tolerance Law in New York State:

• If your BAC is .02% or more, but not more than .05%, you will be charged with the traffic offense of "driving after having consumed alcohol." You will then be provided with a notice to appear for a hearing before an administrative law judge of the Department of Motor Vehicles.
• If your BAC is more than .05% but not more than .07%, the police will have the option of charging you with "driving while ability is impaired by alcohol" (DWAI).
• If your BAC is more than .07% but less than .08% you will be charged with the offense of "driving while ability is impaired by alcohol" (DWAI), and for those with a BAC of .08% or more, the charge will be "driving while intoxicated" (DWI).

If you are charged with either DWI or DWAI, you will be arrested and dealt with in criminal court.

We provide a more detailed explanation of the Criminal Court Process here.

The DMV Administrative Hearing

The Hearing will be held at a local DMV office. You have the right to be represented by an attorney, the police officer will testify and you will have the opportunity to present witnesses and evidence on your own behalf.

During the DMV Administrative Hearing, the police officer must prove the following:

• You were the person who operated the motor vehicle;
• A valid request was made to submit to a chemical test (Breathalyzer);
• You were younger than 21 at the time;
• The chemical test was properly administered;
• The test showed you had consumed alcohol (.02% or more); and
• The police officer made a lawful stop of the vehicle.

If, after both sides have been heard, the police officer has carried his burden of proving the case, the administrative law judge will make a finding that you drove after having consumed alcohol.

The penalties include a 6-month license suspension, a $125 civil penalty, and a $100 suspension termination fee. Each additional offense will result in your license being revoked for at least one year or until age 21, whichever is longer, plus a $125 civil penalty, and a $100 license re-application fee.

License Revocation as a result of driving after having consumed alcohol

You will need to turn in your license to DMV, and it will be illegal for you to drive. At the end of the revocation period, you may apply for a permit and start the licensing procedure. This does not mean that you will have a new driving record. Any convictions you had with the license which was revoked will still be part of your driving record.

Alcohol and Driving equals: License Suspension

You will need to turn in your license to DMV, and it will be illegal for you to drive. Your license will be returned to you at the end of the suspension period.

If your license is suspended under the zero tolerance law, and you do not have any prior alcohol-related convictions on your license, you may be eligible for a conditional license. However, in order to receive one, you must enroll in and complete the Drinking Driver Program. A conditional license will allow you to drive back and forth to work and school, but it is not the same as a full license.

DWI and DWAI Legal Help

Driving While Ability Impaired or Driving While Intoxicated can have serious implications on your ability to drive in New York State or elsewhere.

It is important to contact a skilled DWI lawyer in New York State as soon as possible to protect your rights. Our attorneys at Riebling, Proto & Sachs, LLP are former Assistant District Attorneys and use that experience to aggressively defend your case. We are Westchester County DWI lawyers also working in all Counties in lower New York.

Contact our Lawyers for a Free Consultation. Our office is always available regarding your DWAI/DWI case and can not only put your mind at ease but provide you with valuable information regarding your drinking and driving defense and your best options to proceed.

The DWI Administrative Refusal Hearing

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

Those warnings are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When clients come to our office and speak with our New York DWI lawyers, they tell us stories about the police and how they were treated during a DWI arrest. Most of the information from those charged with DWI is very similar and the police always have the advantage not because they are "all powerful" but because they have a better understanding of the New York State DWI laws than the average person.

In Westchester County and other Counties in New York State, the local police and State police have a set of procedures they follow in order to build a DWI case against you.

Since most people don't know the DWI laws....

.........the police can appear friendly, but are taking advantage of the fact you don't know the DWI laws.

Our New York DWI attorneys are always willing to educate our clients about the DWI laws and how to protect your rights.

With just a basic understanding of the New York DWI laws this can take the advantage from the police and explain the DWI process. The DWI laws in New York are complex and how the police enforce them can be inconsistent, but the following can be used to help you get a better understanding of the DWI laws in New York State and how our DWI attorneys in Westchester County or any County in New York protect your rights.

1. When pulled over for suspicion of DWI, the police are immediately building a case against you.
2. The Police can deceive you and most of the time will.
3. You can and should ask for your DWI lawyer immediately. Be persistent such as "I want to talk to a lawyer now!!" Don't say something such as "maybe I should get a lawyer?"
4. Never make any statements to the police despite any promises they police may make to you. Never admit to drinking.
5. All the field sobriety tests (FST) will be used against you at trial. You have the right to refuse those tests.
6. The handheld breath test used on the side of the road is usually not admissible in court and they tend to register a high reading.
7. .08% is the legal limit in New York State but you can be arrested for a BAC as low as .06%. Between .06% and .07% the DWI charge is called Driving While Ability Impaired (DWAI) a lesser included offense of DWI (.08% and above).
8. The police can arrest you if they feel your ability to drive is impaired by drugs. The offense Driving While Ability Impaired by Drugs is just as serious as regular DWI.
9. Other methods of testing your Blood Alcohol Content (BAC) include blood and urine which in some cases is less reliable than breath tests.
10. The BAC tests are strong evidence of your guilt. However, if you refuse those tests you face greater consequences with DMV.
11. If you have a high BAC reading the Westchester County, Bronx County Rockland County, Putnam County, Dutchess County, and Orange County District Attorney's Office will be less likely to enter into a plea bargain if our DWI attorneys can't get the case dismissed. This informal rule applies for most of New York State.
12. If you have a CDL driver's license in New York and arrested for DWI you risk losing your CDL permanently.
13. Most police cars have cameras but few turn them on since that tape will have to be turned over to the our New York DWI lawyers. Also, any notes the police take must be turned over to your New York DWI attorney.
14. DWI in New York State unlike many other crimes can have a long term impact on your license and insurance.
15. The fees DMV charge if your arrested and/or convicted of DWI can exceed over $1,000.00.
16. A DWI charge is a felony if you have a previous conviction in the past 10 years.

In many DWI, cases these issues appear over and over. Our DWI lawyers at Riebling, Proto & Sachs, LLP are former prosecutors and know the procedures and polices of various police departments and the State Police. Our goal is to protect you against any felony charges and/or sentences for misdemeanor under the DWI laws of New York State.

If you are arrested in New York State for DWI you should speak with a DWI lawyer immediately. Feel free to call us for a free consultation.

It is difficult to make snap decisions on the side of the road with the police lights flashing in the background. The number one rule is to ask for your DWI lawyer as soon as possible.

In any criminal case the rules of evidence apply. In order to be found guilty the prosecutor must present admissible evidence of your guilt. Any failure to present admissible evidence could prevent the prosecution from proving an element of the crime. In many DWI or driving while ability impaired (DWAI) cases, urine or blood tests are taken and need to be admitted in order for the prosecution to prove intoxication accroding to DWI laws in New York State.

In order for urine (blood) test to be admitted at trial, prosecutors must present testimony from the lab technicians who preformed the tests.

In People v Levy, 2008 NY Slip Op 51878(U), the prosecution presented testimony from the police officers who handled the sample before it was mailed to an out of state lab for testing, the lab employee who received the sample and placed a portion of it into test tubes, and a supervisor from the lab testified. The lab supervisor testified about the normal procedures the lab follows when it receives and tests a urine sample, and he determined, after reviewing the lab's 300 page litigation package that tests were preformed on the defendant's sample.

The court concluded that the results of the DWI urine tests were NOT admissible.

The prosecution failed to present testimony regarding the chain of custody for the test tube samples. A witness was needed with personal knowledge about the tests preformed. The Court also refused to admit the lab's litigation package under the business exception rule.

This summer I successfully defended a DWI blood reading of .24 in White Plains. I was able to have the blood results suppressed on a similar basis as above.

In my case the prosecution failed to present evidence that a physician or someone under a physician's supervision drew the blood.

The White Plains Court also refused to admit evidence of the blood sample results under the business exception rule in that ruling that live testimony is needed. The result was a not guilty jury verdict.