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.

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.

Illegal Police Search

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

Rye City Police Search of a Vehicle

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

The Illegal Search

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

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

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

Suppression

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

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

Driving While Intoxicated and the Field Sobriety Tests

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

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

What are These Tests?

The FST commonly use include the following:

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

The Defense to the DWI, Field Sobriety Tests

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

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

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

Criminal Defense of the Field Sobriety Tests

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

FST and a Chemical Test Refusal

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

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

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

The DWI Arrest

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

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

• THE TRAFFIC STOP

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

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

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

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

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

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

Our attorneys work to protect your license and insurance rates.

Good luck on the road.

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.

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.

As a criminal defense trial attorney my clients are always asking me "when can the police search my car?" The are several answers to that question but when looking at it from a traffic infraction only point of view the rules are very specific.

A traffic infraction is any noncriminal ticket.

A traffic ticket is sometimes called a Uniform Traffic Ticket (UTT) or a Simplified Information. Those terms are common in Westchester, The Bronx, Orange and Rockland Counties although the paperwork may look different. UTTs are most commonly issued for speeding, running a stop sign, failure to signal, illegal turn, no headlights and many others.

An infraction is noncriminal as opposed to a suspended license (VTL 511) or DWI/DWAI (VTL 1192.2/3). Those are misdemeanors or even felonies.

When a vehicle is stopped for a traffic infraction a police officer is NOT allowed to search the vehicle without some additional grounds for believing that a crime has been committed (People v Marsh, 20 NY2d 98). The police may order a driver stopped for a traffic infraction out of a vehicle, but without some other probable cause the police can not search the vehicle.

An example is if a police officer stopped a vehicle because the driver was not wearing his seatbelt (traffic infraction). The police can check to see if the driver is properly licensed and the vehicle is properly registered/insured, but without more can not search the car. The problem is that the police are always looking for criminal activity and if contraband such as a gun or drugs are in plain view that is a basis alone to search the entire vehicle. Even if the officer smells marijuana they may be allowed to search the vehicle (People v Hanson 5 Misc.3d 67).

Most major arrests stem from simple traffic infraction stops. As a trial and traffic viloation attorney in New York, I want to make sure your protected by understanding your rights.