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How Long After a NY Arrest for DUI / DWI Can the Police Return to Your Vehicle to Retrieve Alcohol?

As an experienced New York DWI lawyer, I have served many clients who faced drunk driving charges (a.k.a. driving while intoxicated, driving while under the influence, operating a motor vehicle while intoxicated) under New York’s Vehicle and Traffic Laws (VTL) 1192. I have seen many fact patterns and legal issues when representing these clients throughout New York–be it in Manhattan, the Bronx, Brooklyn, Queens, or out in a surrounding county such as Westchester. Naturally then, I was very intrigued when I came across a unique fact pattern in a case from Richmond County (Staten Island) that raised an interesting legal question that has seemed to “pop” up more and more often over the past few years in the DWI context as well as in other arrests. That case is People v. Iryna Tashbaeva, 2011RI003472, NYLJ 1202541705231, at *1 (Crim., RI, Decided January 31, 2012) issue: search and seizure.

In Tashbaeva, the defendant was charged with Operating a Motor Vehicle While Intoxicated pursuant to NY VTL 1192.2 and NY VTL 1192.3. These standard Driving While Intoxicated (DWI) charges are misdemeanors, which are considered a crime and will stay on your permanent record. The former crime is charged when your arrest for DWI or DUI relates to a “blow” of .08 or higher while the latter crime involves “common law” or “refusal” DWIs where there is no scientific reading of BAC. If it is a first time offense, the penalty is a fine of $500 to $1,000, no more than one year in jail, a mandatory license revocation for six months, a potential of three years probation, a driver responsibility assessment of $250 a year for three years, and a requirement to attend a Victim Impact Panel. Further, in order to reinstate your ability or right to drive, you will have to take the DDP. In short (and not surprisingly) getting convicted for DWI has serious long-term consequences far beyond the next day’s hangover.

What is interesting about Tashbaeva is that the arresting officer, Officer Tabora, had made a plain view observation of incriminating evidence (an open half empty bottle of Courvoisier, and a Sprite bottle filled with a mixture) inside the defendant’s vehicle prior to arresting her for driving while intoxicated. However, after observing that the defendant exhibited the physical manifestations of intoxication (bloodshot eyes, slurred speech, alcohol smell etc.) and arresting her, officer Tabora decided to leave the vehicle on the side of Richmond Avenue where it had been stopped, and did not take the cognac and soda bottles. The following morning (about 8 hours later), after meeting with an Assistant District Attorney to draw up the criminal complaint, the police officer returned to the defendant’s vehicle and picked up the two bottles. The officer then determined that the Sprite bottle did in fact contain a mixed alcoholic beverage.

Now, it’s likely that (because you are not a lawyer) you are probably wondering what makes this interesting/controversial at all…Well, the Fourth Amendment of the United States Constitution protects individuals against a warrantless search and seizure…You know in the movies when they come to the door and ask for the warrant so the cops can come search the house. Yes, that warrant is issued by a judge after the cops give good reason (probable cause), and this protects us from having police search us or seize evidence whenever they have any suspicion or a lack thereof.

There are a few exceptions, which allow police to make a search or seizure without a warrant. One of these exceptions is the “plain view doctrine”–police may seize contraband or evidence of a crime when these items are in open view and the officer makes the observation from a lawful vantage point. Applying this doctrine to the facts here, it is clear that Officer Tabora may have been able to seize the bottle of Courveisier and Sprite when he had a “plain view” of them when questioning the defendant at the side of the road. He arguably had probable cause to believe that the alcohol bottles in the car were connected to the criminal activity (the drunk driving) that had just occurred. The problem here is that Officer Tabora did not retrieve the evidence at that time, but instead waited until the next day.

The Tashbaeva court stated that the “warrantless seizure” of both the cognac bottle and the Sprite bottle would have been permissible had the seizure taken place at or near the time of the defendant’s arrest, but the court found that the “lapse of time” between Officer Tabora’s initial observation and the retrieval of the bottles impacted “the legitimacy of the search.” The vehicle was not under the custody of the police during the delay, nor was it secured by a continuous police presence. Thus, the court ruled that “the officer’s previous plain view observation of the bottles did not provide the predicate for a warrantless seizure on the following day.” In other words, because the lapse of time was too long and the car was left unsecured, Officer Tabora was not entitled to go into the car the morning after and retrieve the bottles. This of course meant that the bottles were inadmissible at trial (under the Exclusionary Rule any evidence retrieved by unlawful means is not allowed at a trial).

The plain view doctrine is an important exception that allows police to seize evidence, which is right in front of them while they are already in the process of a legal investigation. However, this does not give police the right to abuse this exception for their advantage. Some may look at Tashbaeva and think the defendant got off on a “technicality,” but it is important to remember that by ruling against the People (and the officer) the court sends a clear message to the NY police: the plain view exception only applies if the evidence is seized immediately or kept in police custody. Having a large time lapse between the plain view observation and the seizure of the evidence, leaves room for abuse and would be a violation of the defendant’s (yours or mine should be accused of any crime) Constitutional rights.

If you have been arrested for Driving While Intoxicated in New York or would like to further educate yourself on New York DWI laws and crimes, please follow any of the highlighted links. There you will find significant amount of information as to DUI crimes and laws as well as analysis of statutes and legal decisions.

The New York criminal and DWI defense firm of Crotty Saland PC was established by two former Manhattan prosecutors. Our New York DWI lawyers and attorneys represent those accused of drunk driving crimes throughout the New York City and suburban region.

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