New York Criminal Lawyer Blog

Facing a Drunk Driving, DUI or DWI criminal arrest in New York can be an extremely frightening experience for any individual especially for an accused who does not have an experienced New York DWI lawyer at their side. Whether one is arrested and charged with Driving While Intoxicated in Manhattan, Queens, Brooklyn, the Bronx or out in the counties of Westchester or Rockland, the consequences of a conviction can be severe and life-changing. Therefore, when facing any of the DWI crimes found under NY Vehicle and Traffic Law (VTL) 1192, it is extremely important to understand your legal rights so that you can mount the best possible defense. In this blog post I want to explore whether a New York court will allow the prosecution to utilize the results from a portable breathalyzer or intoxilyzer administered by the arresting officer during an initial stop at a DWI trial.

A recently decided New York County (Manhattan) criminal case, took up this exact legal issue. In People v. Jones, 2010NY061507, NYLJ 1202504258080, at *1 (Crim., NY Decided July 18, 2011) the defendant, Kareem Jones, was tried before a jury on charges of Driving While Intoxicated (DWI) pursuant to NY VTL1192(3) (also called "Common Law DWI") and Driving While Ability Impaired (DWAI) pursuant to NY VTL 1192(1). As you might expect, one is guilty of DWI when they operate a motor vehicle in an intoxicated condition. If convicted the defendant can face up to one year in jail, a suspension of their license, fines, and probation for three years. Further, the law requires that an interlock device be placed on the convicted's vehicle. On the other hand, one is guilty of DWAI if they operate a motor vehicle while impaired by the consumption of alcohol. DWAI is an infraction and is often charged as a lesser offense of the other DWI crimes listed under VTL 1192.

In this case, prior to the commencement of trial, the People moved to introduce evidence that at the time of his arrest, Mr. Jones had .09 of one percent by weight of alcohol in his blood (the legal limit is .08). The defendant objected to the introduction of the evidence because it was established by a "portable breath test" (PBT) administered by the officer at the scene (in the street as opposed to at the precinct). Based on some relevant case law, the defendant argued that "portable breath tests," as opposed to stationary breathalyzer tests maintained at police precinct houses, are not admissible evidence and are inherently unreliable. Furthermore, if the prosecution wanted to admit the results, the defendant argued that they had to submit expert testimony showing the reliability of the PBT. Obviously, the crux of the People's case was based on the blood alcohol content (BAC) reading; if the evidence is not admissible or deemed unreliable then the defendant could "beat the rap" or face only the lesser charge of DWAI.

Unfortunately for the defendant, the Court ruled against the him stating: "the results of an otherwise reliable chemical test are not rendered inadmissible at an intoxicated-driving trial just because the device used to perform the test is capable of being moved." The court went on to explain that the portability of a breath testing device is not a factor relevant to the admissibility of the results. Rather, evidence of a defendant's BAC is admissible if obtained by a chemical test that meet the following two foundational requirements for admissibility: (i) that the device, when operated correctly, ordinarily produces scientifically reliable results and (ii) that the device was in good working condition and was properly used.

The court went on to explain that the type of PBT utilized by the arresting officer was an accepted scientific device. The US Department of Transportation/National Highway Traffic Safety Administration (NHTSA) lists the PBT on the Conforming Products List of Evidential Breath Alcohol Measurement Devices, and the device was approved by the Commissioner of Health for use in New York. Therefore, there was no need for expert testimony to affirm the reliability of this scientifically approved device. Moreover, the People offered evidence (two certified maintenance reports) demonstrating that the PBT was properly calibrated and in working order. Also, the People established that the officer who administered the test was qualified to properly operate the test.

In short, People v. Jones is a very dangerous case for New York DWI lawyers and DUI defendants. The case very clearly illustrates that New York criminal courts will allow the prosecution to introduce evidence of the defendant's blood alcohol content even when obtained by a portable breath test device by an officer at the scene. This scientific data, as opposed to just an officer's observations is far more difficult to overcome. Should you, an individual arrested for DWI or DUI "blow" at the scene of an arrest? The answer to that questions is well beyond the four corners of this blog entry.

For a wealth of relevant and practical information about New York DWI laws and DWI crimes ranging for statutes, sentencing guidelines and collateral consequences, follow the links above. Further information is also available below through CrottySaland.Com.

The two founding New York DWI lawyers at Crotty Saland PC served as Manhattan prosecutors prior to establishing the criminal defense firm. The New York criminal lawyers at Crotty Saland PC represent individuals arrested for DWI, DUI and Drunk Driving arrests throughout New York City and beyond.

Sometimes, as a criminal defense attorney in New York, the best way to zealously represent your client against criminal charges is to challenge the admissibility of evidence before the trial begins. This strategy can be particularly effective when a defendant faces any one of the Driving While Intoxicated (DWI) charges listed under NY Vehicle and Traffic Law (VTL) 1192. It is important to remember that no matter its weight or strength, if the evidence (whether it be contraband found on a defendant or statements made by him/her) was not obtained by legal means by the police, then it will not be admissible in a criminal court. That is, if an individual's Constitutional rights were violated in the apprehension of evidence, whether it be during a New York DWI, DUI or other criminal arrest, then it will be excluded. A recent case in the Kings (Brooklyn) County Criminal Court, People v. Licelle Lovelle, 2010 KN068463 NYLJ 1202516648515, at *1 (Sup., KI, Decided September 14, 2011) raised some very interesting legal issues regarding the admissibility of evidence in a DWI case. Whether or not this case is useful in your tool box when defending against a drunk driving arrest is something worth exploring with your criminal lawyer.

Ms. Lovelle was charged with Operating a Motor Vehicle While Under the Influence of Alcohol Or Drugs and other DWI charges pursuant to VTL 1192 including Driving While Impaired - VTL 1192.1, Driving While Intoxicated Per Se - VTL 1192.2, and "Common Law DWI" - VTL 1192.3. The defendant's criminal lawyer called for a suppression hearing arguing that the arresting officer violated the defendant's Constitutional rights while obtaining evidence. Specifically the defense argued that Lovelle's 5th Amendment rights were violated because the officer took statements without issuing proper Miranda warnings.

A quick legal refresher: The Fifth Amendment protects individuals against self-incrimination. Stemming from this right, and pursuant to Supreme Court case law, whenever the police take someone into custody that individual must be informed of their right not to make any self-incriminating statements (this is embodied in the Miranda rights, which most of us know or at least have seen on countless "Law and Order" episodes). Furthermore, the defense argued that the arresting officer lacked probable cause to arrest the defendant in the first place. The Fourth Amendment of the Constitution guards against any unreasonable search and seizure, and case law has established that in order for the police to make a search and seizure (for example arrest you and search your person) they need to have probable cause (basically a belief that you committed the crime supported by some facts/observations etc.).

In Lovelle the officer observed the defendant's car parked partially in a crosswalk with the defendant sleeping at the passenger wheel. The defense argued that the officer lacked probable cause to approach the defendant, to make a stop (a seizure) and ask to questions. However, the court pointed out that under VTL § 1202(1)(d) it is illegal to park on a crosswalk; therefore the officer had an "objective credible reason for approaching the defendant's parked car" and to make a stop to request information. After smelling alcohol on the defendant and noticing the defendant's bloodshot eyes, unsteady balance, flushed face, and disheveled clothing, the officer had more than enough probable cause to administer a sobriety test. Naturally, when the defendant failed the sobriety test the officer had enough evidence to make a lawful arrest (however, do not be confused with probable cause to make an arrest and guilt at trial beyond a reasonable doubt).

Moreover, the Court would not suppress the statements that the defendant had made to the officer at the scene. Ms. Lovelle was asleep in her vehicle when the officer approached. The court argued that this routine check by the police- inquiring into the suspiciousness and illegal behavior of the defendant (i.e. parking in a crosswalk)- did not require that the officer give the defendant her Miranda rights. Miranda rights are required only when the police take an individual into their custody. The court argued that the officer was merely making a general basic request for information. In New York, police are allowed to approach an individual and inquire about basic, nonthreatening matters such as name, address and destination. The police need an articulable reason for the questioning, but the reason does not need to be indicative of criminality.

Based on the circumstances of the officer's inquiry, the defendant could not have reasonably considered herself in custody during the routine questioning by the police for information. In other words, since Ms. Lovelle was not in custody (the officer was merely making a general inquiry as to why she was parked in a crosswalk and asleep at the wheel at 4:15AM) there was no legal requirement that Miranda warnings be administered to the defendant at the scene. Ms. Lovelle'd answers- that she had been drinking at a restaurant and thus fell asleep here- were admissible evidence against her in the DWI case.

Lovelle demonstrates that police officers in New York have a right to request information based on circumstances that may not amount to criminal behavior. In other words, while an officer needs probable cause to make an arrest, they need only an rticulable reason for questioning. Furthermore, an officer is entitled to make a stop of a vehicle and driver if that individual is in violation of any VTL statute. Having said that, just as an officer may have the right to make an inquiry, you have a right to refuse to answer. Certainly, admitting you had a few drinks at a bar or restaurant is only going to make your case that more difficult to overcome. Remember, while an arrest for DWI or any other offense is traumatizing at best and life altering at worst, exercising your right to remain silent and to seek criminal counsel may be the best steps you can take to protect your future.
To learn more about New York DWI laws and New York DWI crimes, follow any of the highlighted links above. Additionally, information on these and other crimes can be found throughout the NewYorkCriminalLawyerBlog.Com and the CrottySaland.Com DWI information page.

Founded by two former Manhattan prosecutors who served in the Trial Division's DWI Unit, Crotty Saland PC's New York criminal attorneys and New York DWI lawyers represent those arrested for DUI and drunk driving charges throughout the New York City area.

New York criminal lawyers and New York DWI attorneys are often confronted with defending clients against numerous "types" of DWI and DUI charges. Whether the drunk driving crime is Common Law DWI, Aggravated DWI or Per Se DWI, a NY criminal attorney has to be prepared to attack not only the drunk driving charge, but the basis or foundation of the police officer's arrest.

In an all too common scenario, maybe you were speeding up the FDR on Manhattan's East Side, or maybe you gassed your car a little too much flying up Flatbush Avenue in Brooklyn. Unfortunately, all of a sudden- when it's already too late- you see a police car out of the corner of your eye. By the time you spot the vehicle, the sirens are blaring and moments later you are lamenting the possibility of a mammoth speeding ticket. Whether you are out in Westchester or Rockland County, or closer to the City in the Bronx Manhattan, Brooklyn, or Queens, it should not merely be the speeding ticket that concerns you if you have had the proverbial "couple of drinks." While you certainly have greater reason for concern, the question your DWI lawyer will confront is whether your routine speeding stop is sufficient basis to "blow" up your traffic case into a conviction for Driving While Intoxicated pursuant to Vehicle and Traffic Law 1192. In this blog post I want to examine a recent DWI and VTL 1192 case that touches on the subject. More broadly, we will address what kind of evidence can be used to obtain a conviction for Driving While Intoxicated pursuant to VTL 1192.

People v. Scott J. Grennon, 2009-2125 OR CR, NYLJ 1202510870265, at*1 (App. Tm., Decided July 27, 2011) involved a motorist who was arrested for Aggravated Driving While Intoxicated Per Se (VTL 1192.2(a)), Driving While Intoxicated Per Se (VTL 1192.2), Common Law Driving While Intoxicated (VTL 1192.3), and speeding (VTL 1180(d)). However, and extremely crucial to our analysis, the jury acquitted the defendant of Aggravated Driving While Intoxicated Per Se and Driving While Intoxicated Per Se, BUT convicted the defendant of Common Law Driving While Intoxicated and speeding. Grennon appealed on the grounds that there was not enough evidence to sustain the conviction of Common Law DWI.

Now before getting further into the facts of the case it is essential to note the difference between these types of DWI charges. Under the DWI "per se" statutes (VTL 1192.2 and 1192.2a), a person is guilty if he/she drives with a blood alcohol content (BAC) of .08% or higher or .18 or higher respectively. Both of these crimes are misdemeanors, but the latter Aggravated DWI offense carries stiffer penalties. On the other hand, a person can be prosecuted for "Common Law" DWI (VTL 1192.3) if based on the totality of the circumstances, and evidence gathered in the course of the arrest/incident, the officer observes (and the prosecution can establish beyond a reasonable doubt) that the driver was "intoxicated.

Applying the criminal law to this case, if there was enough evidence for the officer to establish that Grennon was intoxicated in the course of pulling Mr. Grennon over and observing him (but without a BAC reading), then the Common Law DWI conviction would be upheld. What evidence did the People have to support the Common Law DWI conviction, you ask? Well a state trooper saw Mr. Grennon speeding (estimated 95 MPH in a 65 MPH zone) on the New York State Thruway in Woodbury, Orange County (upstate NY). The trooper "spotlighted" the defendant and began to follow the Mr. Grennon for a considerable distance. [Note that in New York if an officer has training and considerable experience in estimating the speeds of vehicles, then the officer's testimony- even without a radar gun- can uphold a speeding conviction]. While obtaining the defendant's driver's documentation, the trooper detected the odor of an alcoholic beverage on Mr. Grennon's breath. Grennon admitted that he was driving home from a Yankees game, where he had consumed beer. The trooper testified that Mr. Grennon's eyes were "glassy" and arrested the defendant.

The Appellate Court ruled that the evidence against the defendant was insufficient to sustain a DWI conviction. Speeding, exhibiting glassy eyes, an odor of an alcoholic beverage, and an admission of consuming beer at some point earlier did not provide significant indicia of actual impairment of motor coordination. Since the officer did not conduct any field sobriety tests the court felt that there was not enough evidence to support the conviction of Common Law Driving While Intoxicated. While the People concentrated on the speeding aspect of the case, the Court stated as follows:

"Although speeding might be taken to reveal a diminishment of the 'mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver' (People v Cruz, 48 NY2d 419, 427 [1979]; e.g. People v Barger, 78 AD3d 1191, 1192 [2010]), absent any other evidence tending to prove defendant's inability physically to operate his vehicle as a reasonable and prudent person, the proof of speeding is too equivocal to be given significant weight as to defendant's state of intoxication."

The big takeaway from this New York DWI case is that the Common Law DWI conviction standard--that the officer must observe actual impairment of motor coordination--may be a higher standard than one might expect. An officer cannot just smell alcohol and look at your eyes to determine that you are impaired. Moreover, while speeding might show that the motorist is not a reasonable or prudent driver, absent any other evidence tending to prove the defendant's inability physically to operate his vehicle, the proof of speeding may not give the necessary legal weight to the contention that the defendant is intoxicated. Keep one last (and critical) thing in mind...While this case resulted in a successful outcome for the accused and furthered a legal standard as to what satisfies proof beyond a reasonable doubt in a DWI case, each set of facts may be interpreted differently by a court. What if, for example, there was one or two other factors? What if the defendant stumbled as he exited the vehicle or fumbled his license and registration? Maybe then, not only would a new legal precedent be set, but Mr. Grennon might have spent time behind bars saddled with a criminal record.

To educate yourself about New York DWI laws and New York DWI crimes, please follow either of the highlighted links. On Crotty Saland PC's DWI information page you will find links to the numerous types of DWI offenses, information on punishment and sentencing for DUI convictions, and analysis of legal decisions interpreting New York DWI laws and crimes.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors who served in the New York County District Attorney's Office and its DWI Unit. The New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

New York State laws are tough when it comes to Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). Police, prosecutors, and judges strictly enforce these types of drunk driving offenses, which are listed under NY Vehicle and Traffic Law (VTL) 1192. Most New York criminal defense attorneys, when representing clients facing DWI crimes in Manhattan, the Bronx, Brooklyn, Queens, or Westchester County, will often try to broker a plea agreement with the respective District Attorney's Office. The hope is to lessen the potential punishment and fines, avoid jail time and/or a long-term loss of the defendant's driver's license. Further, because of the recent changes in New York DWI law (see Leandra's Law) that require the installation of an ignition interlock device, it is always critical to identify the best defense to a DWI or DUI arrest to mitigate collateral consequences. While pleading a case to a lower offense may be the best defense, there are other viable options to consider when mounting a defense to a New York DWI or DUI charge. For instance, what if the entire police stop was deemed unconstitutional as an illegal search and seizure? A recent case from the criminal court in Geneva, New York brought to light this very interesting - and case specific - legal question.

The case, People v. Palermo, NYLJ 1202519418737, at *1 (City of Geneva, Decided September 28, 2011), involved a man who was arrested after failing a series of sobriety field tests. Employing a savvy tactic, the defense requested a Probable Cause and Suppression Hearing, contending that the police officer lacked probable cause to arrest the defendant. Let's pause from the case for a moment for a Constitutional Law refresher. The Fourth Amendment of the United States Constitution guards citizens against any unreasonable search and seizure. Over the years the Supreme Court has outlined the parameters of what is reasonable and what is unreasonable. Generally, a police officer must have much more than a "hunch" to stop a driver on the road, and, obviously, an officer must have probable cause to ultimately arrest the driver. Though probable cause can be a fuzzy legal standard, the basic idea is that the officer possessed a reasonable belief that a person has committed a crime. Now because the United States likes to protect its citizens' rights (as does New York!), the judicial system employs what is called the Exclusionary Rule: evidence collected in violation of a defendant's constitutional rights, or any "fruits" of the illegal search or seizure, will be inadmissible (excluded) from a prosecution in a criminal court.

Now back to the DWI case...If the defense lawyer could show that the officer lacked probable cause, then the results of the series of sobriety tests would be inadmissible. Without the results from the sobriety tests, which established probable cause for the arrest and charge of Driving While Intoxicated, the arrest would be illegal and all charges would have to be dismissed.

After the criminal defense lawyer moved for a dismissal of the DWI charges, the People asserted that the arresting officer had reasonable suspicion to believe that Mr. Palermo violated a couple of vehicle and traffic laws. More specifically, that Mr. Palermo made an illegal u-turn and was speeding. However, while the arresting officer in Palermo revealed that he saw the defendant make a U-turn while pacing behind, the defense showed that the particular U-turn made, was not illegal. Furthermore, the officer admitted that he "didn't necessarily use radar" to measure the speed at which Mr. Palermo was traveling. Now, it's important to note that pursuant to New York State case law an officer is allowed to estimate the speed of a moving vehicle if the he/she shows experience observing the rate of speed of moving vehicles or some other satisfactory reason or basis for his opinion. Nevertheless, in this case the arresting officer did not have any such training. Lastly, the court found that the officer could not have established speeding by pacing Mr. Palermo's car because he did not pace Mr. Palermo long enough before Mr. Palermo made the proper U-turn.

More important than the particular facts, however, we must examine how the court reached their conclusion for suppression. The court laid out and reiterated three guidelines for the police to have probable cause to stop a vehicle: (1) The motor vehicle must be used in connection with criminal activity; (2) there must be reasonable suspicion of a violation of the vehicle and traffic law (VTL) based on articulable reasons that are not the product of mere whim, caprice or idle curiosity; and (3) when conducting a traffic check to determine whether or not a vehicle is being operated in compliance with the VTL, it must be done according to non-arbitrary and non-discriminatory, uniform procedures for detecting violations. Following these points, the court indeed found that the officer lacked the legal standing to stop the defendant's vehicle for any traffic violation and the stop was therefore an illegal seizure. The evidence was suppressed and the charges were dismissed.

This very recent case is extremely telling and important. If you are arrested for DWI anywhere in New York, if an officer does not establish probable cause, and makes an illegal search or seizure, then any evidence she/he collects thereafter will be inadmissible in a court of law (remember, you still have to convince a judge of the facts in question and applicable law!). Even if you fail the sobriety tests like Mr. Palermo, if the officer didn't have probable cause in the first place than you cannot be convicted of a DUI or DWI. Again, while the law is clear, if your New York DWI lawyer is unable to establish that the officer acted beyond the scope of the law, this suppression defense will fail.

For a wealth of information on New York DWI crimes and New York DWI laws, visit CrottySaland.Com's DWI information page. There you will also find links to the NewYorkCriminalLawyerBlog.Com where you will find relevant and practical analysis of DWI legal case decisions, DWI criminal statutes and DWI cases in the news.
Founded by two former Manhattan prosecutors who served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm representing those arrested for DWI crimes and DUI offenses throughout New York.

In New York City as well as the outside counties of Westchester and Rockland, Drunk Driving (a/k/a DWI or DUI) is a crime that is routinely prosecuted. Unlike intentionally malicious crimes, DWI allegations found in VTL 1192 are often alleged against hard working, honest and generally law abiding people who may have had a lapse in judgment. Fortunately, DWI lawyers in New York who are experienced in defending clients against drunk driving arrests may be able to protect their client's limited right to drive while a suspension is pending. Commonly known as a "Hardship Hearing," if granted by a New York court (it makes no difference whether the DWI allegation occurred in Manhattan, Brooklyn, White Plains or Yonkers), an individual accused of DUI may be able to drive, for example, to and from work and for other limited purposes. Keep in mind that a Hardship Hearing can be granted in cases involving VTL 1192.2 for "blowing" in excess of .08 on a breathalyzer (actually an intoxilyzer) as well as VTL 1192.3 cases as long as the latter is not for a refusal,

The Hardship Privilege: VTL 1193(2)(e)(7)(e)

Judges will suspend your right to drive in New York at your arraignment for a DWI crime, such as where you "blow" a .10 in an intoxilyzer, even if the court where your case is pending "finds that the suspension imposed...will result in an extreme hardship." However, in such cases a "hardship privilege" may be granted. As a result, if your DWI attorney is successful in arguing that you have an "extreme hardship," then you may be able to drive in limited circumstances.

Defining "Extreme Hardship"

An extreme hardship is defined by statute and is limited in scope. In short, an extreme hardship means an "inability to obtain alternative means of travel" to or from work, medical treatment or college.

How to Prove an "Extreme Hardship"

It is critically important to understand that merely stating it is difficult to travel to and from work, medical appointments for a child or classes at a university will not be sufficient to establish the hardship as required by law. In fact, the law does not permit a favorable finding (i.e., granting of a "hardship license") solely on the testimony of the defendant. Instead, other evidence would be necessary. This evidence can include testimony from other members of the household, maps of travel to and from work including the location of and times of service for public transportation, etc. If a hardship privilege is to be successful, it is important to discuss your method of proving that hardship with your criminal attorney well before you step into court. There is no substitute for preparation and the burden is yours.

When Can a Hardship Hearing be Granted

An arraignment cannot be adjourned beyond three days for the purpose of a Hardship Hearing. Practically speaking, in New York City an arraignment often time takes place and the matter is adjourned within this time frame to another courtroom within the three days.

Other Relevant Hardship Information

Even if your legal counsel is successful in establishing the "extreme hardship" (the burden is yours as opposed to the prosecution to establish that no hardship exists), your right to drive is limited. If you drive beyond that set forth on the record by the court, you may be arrested and charged with new crimes. Additionally, you should not confuse a Hardship Hearing with a Refusal Hearing. The latter occurs when your license is revoked for failure to comply with a lawful and proper request to supply some form of sample (usually breath) to law enforcement for the purpose of establishing your BAC. While a Hardship Hearing is conducted in a criminal or local court (outside of NYC), a Refusal Hearing is conducted by an administrative judge at the Department of Motor Vehicles. These two hearings are completely distinct and separate.

Although this entry is only a brief synopsis on a limited area of DWI laws, to further educate yourself on New York DWI crimes and DUI laws, please follow the highlighted link. There you will not only find extensive information on criminal statutes, but other useful links addressing legal decisions.

Founded by two former Manhattan prosecutors who served under Robert Morgenthau and in the Trial Division and DWI Unit, the New York criminal lawyers at Crotty Saland PC represent those accused of DWI and DUI crimes throughout New York City and many suburban counties.

Drunk Driving in New York - whether called DWI or DUI - is such a serious crime in New York City and throughout the State of New York that specific court rooms are set up solely to prosecute alleged drunk drivers. Many of these defendants wondered at the time of their arrest whether or not they should "blow" into a breathalyzer or intoxylizer. When I first started my career as a Manhattan prosecutor I heard this question asked and I routinely hear it asked to me today as a criminal lawyer. In fact, New York DWI lawyers and DUI attorneys constantly are bombarded with the question of whether or not a person should "blow" or refuse to take the breathalyzer when arrested for DWI. So what is the answer? Should you or should you refuse or blow when arrested for VTL 1192?

Background on New York City DWI Arrests

First, it is imperative to understand that when you are initially arrested for Driving While Intoxicated in New York, police officers often have a machine in their vehicle. The result from this breathalyzer is not admissible in a New York criminal court. Therefore, whether you blow a .16 or .06, it will not be used against you in a court proceeding. However, the reading obtained will assist in forming the basis or probable cause for your ultimate VTL 1192 or DWI arrest.

DWI Procedure at the Precinct

Once you are arrested and taken into custody, the police will (or should) read you your Refusal Warnings and then ask you to blow into an intoxilyzer. When being read these rights, the police should also be videotaping you. Like the breathalyzer, this machine will read your BAC. Now, the question likely is in your head...should you blow or not?

Negative Consequences of a DWI Refusal

New York law is very strict on refusals. If you refuse to blow, your license in New York will be revoked for a year (subject to a Refusal Hearing with the Department of Motor Vehicles). It is critically important to recognize that even if you are ultimately acquitted of the DWI, your refusal is not dismissed. Additionally, many District Attorney's Offices will not make an offer to a defendant who refuses. Therefore, if you are close to or slightly above the legal limit in a case where there would normally be a non-criminal offer, refusing could hinder your ability to get such an offer.

Benefits of a DWI Refusal

If you ultimately refuse to blow into the intoxylizer at the precinct, there are serious ramifications, but also potential benefits. Because you are being videotaped, if you appear sober in your words, mannerism and conduct, you may have a stronger defense. If you blow into the machine and get a reading of .12, for example, your conduct and mannerism will certainly be valuable, but prosecutors will have this scientific reading as a sword to use against you at your trial. If you do not provide a sample, then the evidence of your intoxication will be the video of you and the testimony of the officers without scientific evidence. It does not take a criminal defense attorney to explain that the lack of scientific evidence, coupled with a "good" video of you at the precinct, will give you a leg up on a trial should you decide to pursue that route. Here, of course, the caveat is that the video is actually supportive of your sobriety. If you are stumbling, vomiting, or slurring your speech, then your failure to blow will be less valuable.

The Answer: Refusal or Blow

Unfortunately, there is no correct answer. If you are extremely intoxicated and you might blow a .16, .18 (Aggravated DWI) or even higher, then maybe you should not blow. If you cannot afford to have your license revoked because you must have it for work, maybe you should blow (there will be a temporary suspension regardless). Make no mistake, if you are not a stumbling drunk, failing to blow may strengthen your case at trial by not providing any scientific evidence to prosecutors. At the same time, however, not blowing may also make obtaining an offer much more difficult.

The answer to this age old questions is that there is no general answer. Neither this blog entry nor any DWI website will have the answer for you in your particular case. While it may not be easy, if you have counsel, the police should permit you to make a phone call before determining whether to blow into an intoxylizer. Use this opportunity to call your attorney so he or she can quickly get some information to answer this question specifically in your case. Regardless, the answer to this question will likely be an on the spot judgment call.

Crotty Saland PC is a New York criminal defense firm representing clients in Driving While Intoxicated and drunk driving related crimes in New York City and the region. Prior to starting the law firm, our two founding New York criminal lawyers served as prosecutors in the Manhattan District Attorney's Office.

For a wealth of information on New York DWI crimes and New York DWI laws, please follow the highlighted links to our website. There you will find legal analysis of recent DWI case decisions, DWI statutes and other relevant information. Moreover, a review of the NewYorkCriminalLawyerBlog.Com will also reveal this information.

While not as commonly seen by DWI lawyers in the New York City area, Vehicle and Traffic Law 1192(4), Driving While Ability Impaired Drugs, is no less serious than an arrest for any other DWI or DUI crime. Having said that, those attorneys not experienced in New York's drunk driving and drinking and driving laws can further the misinformation about this offense. The following blog entry will address some of the issues and elements of this crime. As always, please remember that this blog entry is no substitute with an in depth consultation with your own New York criminal lawyer.

The Elements of VTL 1192(4) - Driving While Ability Impaired Drugs

While not a legal decision from New York's highest court, People v. Kahn, 160 Misc.2d 594 (Dist.Ct., Nassau Cty. 1994), gives a good outline of what prosecutors in New York must prove at trial against those accused of this DWAI based on drugs. There, the court set forth four elements. First, prosecutors must prove beyond a reasonable doubt (this is always the legal standard at a criminal trial) that the accused ingested a drug or drugs. Second, the drug alleged to have been ingested must be one of those substances set forth in Public Health Law 3306. Assuming both of these two elements are met, the prosecution must obviously prove that the accused then operated a motor vehicle. As noted in earlier entries and on the Crotty Saland PC website, this operation need not be actual driving with the car in motion. Finally, it must also be established that the accused's ability to operate the motor vehicle was impaired by his or her use the drug. If these elements are all found and proven beyond a reasonable doubt, then the accused is guilty of VTL 1192(4).

Can Any Drug be the Basis for Violating VTL 1192(4) - Driving While Ability Impaired Drugs

The short answer to this question is "no." That is, the ingestion or consumption of only certain drugs can be the basis of a DWAI crime as it relates to drugs. Despite this, the list is fairly exhaustive and is found under New York Public Health Law 3306. There, the New York State legislature set forth numerous categories and specific drugs too long to list in this entry. Generally, however, these drugs include hallucinogens, stimulants, opiates, narcotics and other controlled substances. The most common of these drugs are cocaine, heroin and marijuana (marihuana). It is interesting to note that "personal use" possession of almost all of these drugs, excluding marijuana, is a violation of New York Penal Law 220.03. Possession of marijuana is violation of New York Penal Law 221.10 or 221.05. This is relevant because NY PL 220.03 is an misdemeanor crime similar to DWI while NY PL 221.10 is a lesser misdemeanor and 221.05 is not a crime at all. Should you actually possess any of these substances at the time of your arrest, keep in mind that not only can you face equally serious crimes, but the case against you will likely be stronger.

Other Issues Involving VTL 1192(4) - Driving While Ability Impaired Drugs

With extensive case law addressing the statutes of New York's Vehicle and Traffic Law, there are countless issues that routinely appear in DWI prosecutions. One issue that those accused of any DWI crime should keep in mind is that "impairment" and "intoxication" are not the same thing. While intoxication may require more proof at trial, ones's impaired condition is established when the prosecution proves beyond a reasonable doubt that the accused was impaired to any extent - even if slight. In impairment cases, the burden on the prosecution is much less although all elements must still be proven beyond a reasonable doubt.

For a wealth of information on New York DWI crimes as well as those relating specifically to VTL 1192(4), review Crotty Saland PC's website. There you will find detailed analysis as well as links to numerous DWI blog entries on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Founded by two former Manhattan prosecutors, the New York DWI attorneys and criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

In New York City it is routine that an arrest for DWI, DUI or driving while intoxicated is accompanied by an on the scene intoxilyzer or BAC breath test. In other words, before you ever meet with your criminal lawyer or are handcuffed in the back of a police car, officers with the NYPD will administer an intoxilyzer test in the field. Although prosecutors, and DWI lawyers, often cite the results of this test to their advantage when possible, the legal question is as follows:

Can a breathilyzer or intoxilyzer test result be taken at the scene of a DWI arrest be used against an individual charged with a New York DUI crime such as VTL 1192.2 (Driving While Intoxicated) or VTL 1192.2-a (Aggravated Driving While Intoxicated)?

Although the above answer is well established and has been reaffirmed by many courts throughout the state, prosecutors in New York City - Manhattan, Brooklyn, Queens and the Bronx - still attempt to create "new" law and push the legal envelope in all sorts of criminal matters (for better or for worse). Fortunately for one particular defendant, a New York City Criminal Court Judge was having none of it. In People v. Santana, 2010NY044345, NYLJ 1202495788641, Judge ShawnDya L. Simpson ruled against the prosecution after a New York County Assistant District Attorney attempted to introduce this field test result at trial as proof of intoxication. Simply put, the court, held that "field test results cannot be introduced as evidence in chief of defendant's intoxication." People v. Reed, 5 Misc. 3d 1032A (Bx. Co., Sup. Ct. 2004). In non-legal terms, not admissible as "evidence in chief" means that the field test result, as opposed to the intoxilyzer taken at the precinct subsequent to arrest, cannot be used by prosecutors in their direct case through their witnesses.

Jude Simpson further noted that:

"According to VTL §1194 (2) (a) and (b), the initial breath test and the subsequent chemical test serve difference purposes, the first determines if alcohol was consumed and the second determines the level of alcohol consumed. The statute does not provide that a field test is admissible as evidence in chief of defendant's intoxication and no such language will be read into the statute by this court. That the Intoxilyzer S-D2 [the portable field test intoxylizer] is listed as a devise approved to test blood alcohol content does not establish that the devise is admissible at trial to prove the defendant was legally intoxicated."

Why Field Intoxilyzer Not Admissible

The test in the field is not admissible in a case-in-chief for a few reasons. First, unlike an intoxilyzer examination at a precinct, tests conducted in the field are not videotaped for proof that the police administered the exam properly. Even assuming it was done correctly, for the people to introduce an intoxilyzer, the evidence must establish that the devise was properly calibrated within approximately six months of its use. See People v. Boscic, (15 N.Y.3d 494). Lastly, although not deservedly so, there is something in our set of laws called "due process." To admit this test result without advising the accused that it can and will be used against them at trial, would circumvent these rights that are the critical to the well being of our legal system.

Purpose & Use of the Field Intoxilyzer

Merely because a portable or field variety breathilyzer or intoxilyzer is not admissible at trial during the prosecution's case in chief, does not mean that the same has no value or is not relevant. In fact, as further recognized by the court, the test in the field is significant. Although the test results are not sufficiently reliable to establish intoxication before a jury or judge at trial, these results are part of and can even establish a police officer's probable cause to make a DWI arrest in New York City or anywhere else in New York State where the test is administered. In practical terms, if the field intoxilyzer is administered and the accused "blows" a .11, then the recording would form the basis of an arrest for Driving While Intoxicated pursuant to VTL 1192.2. Obviously, your attorney will challenge the basis of the stop of your vehicle and not merely concede this equally (if not even greater) factor in determining whether your arrest for DWI was legally permissible.

For extensive information about DWI laws in New York City as well as New York State, please review the detailed information on the DWI & DUI section of the Crotty Saland PC website. Additional materials from DWI case law to cases in the news can be found on the New York Criminal Lawyer Blog.

Established by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent those accused of DWI and drunk driving crimes throughout the New York City region.

We have all done it and we usually don't need the assistance of a New York criminal defense lawyer. Usually, the honk of the car behind us is a sufficient reminder that the red light has now turned green and we need to put the pedal to the ground. Maybe we were looking at the radio or maybe we were engaged in a heated conversation (not on a hand held mobile, of course). Regardless, we responded slowly to the change of the light from red to green. While this delay is often attributable to carelessness, a driver in Nassau County argued that his failure to turn on a green light did not give police probable cause to stop him and ultimately arrest him for Driving While Intoxicated (DWI / DUI) in New York. In his particular case, the question asked and ultimately answered by the court was whether or not the momentary delay in his response established probable cause for the police to stop and arrest him.

In People v. Martinez, 2010NA023365, the defendant was charged with DWI, pursuant to Vehicle and Traffic Law section 1192(2) and impeding traffic, pursuant to Vehicle and Traffic Law section 1181(a). It was alleged that while standing at a red light, which ultimately turned green, the defendant failed to immediately turn. Instead, he paused with significant enough time for two vehicles to go around him. The third vehicle behind the defendant was a police officer. After about thirty seconds as the light turned yellow, the defendant turned his vehicle. After following the defendant for a couple of blocks, the officer pulled him over. There was no testimony by the police officer (the prosecutor should have brought this out) about oncoming traffic, the fashion of the defendant's driving (did he cross over the white or yellow lines?) or whether or not the defendant used his turning signal.

The court's decision (quoted from the actual decision):

Officer Barnes was clear that within seconds of the light turning green the two cars between him and the Defendant moved around the Defendant and proceeded on their way, without any apparent difficulty. Such a momentary delay cannot provide the basis for a police stop for impeding traffic. See: Salter v. North Dakota Department of Transportation, 505 N.W.2d 111 (S. Ct. North Dakota 1993) [Applying a virtually identical statute the court found there was no reasonable and articulable basis to stop an automobile which was going 30 to 35 miles per hour in a 50 mile per hour no passing zone, with cars coming up behind him, for impeding traffic]

Once the two vehicles between the Defendant and Officer Barnes proceeded, the only vehicle left behind the Defendant was Officer Barnes himself. Officer Barnes, however, did not testify that he intended to pass the Defendant; rather, he made it clear that it was his intention to follow the Defendant. See: People v. Rotkvich, 256 Ill. App.3d 124, 628 N.E.2d 888 (Ill. App. 1st Dist.1993) [the court affirmed the suppression of evidence in a driving under the influence of alcohol prosecution where there was no reasonable or articulable suspicion for stopping the defendant's vehicle, which was traveling between 10 and 15 miles per hour in a 35 miles per hour zone and the only cars on the road were two police cars, one of which followed the defendant and the other of which was not said to be impeded]

There is also no indication in the matter before the court "that defendant's manner of driving resulted in a substantial danger to other motorists." People v. Brand, 71 Ill.App.3d 698, 390 N.E.2d 65 (Ill. App. 1st Dist. 1979) [the court affirmed the granting of the defendant's motion to suppress where the defendant drove 20 miles per hour in a 45 miles per hour zone for one-quarter mile, but there was no indication that the defendant's slow speed either endangered other motorists or that other motorists were affected by the defendant's conduct]

Based upon all of the foregoing, the court finds that the Defendant's conduct, in merely waiting for the traffic light to turn yellow before making a lawful left hand turn, without interfering with the reasonable progress of the other motorists present or creating a danger of any kind to any motorist, did not provide Officer Barnes with either probable cause to believe that the Defendant had violated VTL §1181(a) or reasonable suspicion that the Defendant committed, was committing, or was about to commit a crime.

Where, as here, the stop of the Defendant's vehicle was unreasonable, any "subsequent discoveries...constitute derivative evidence obtained by an illegal seizure and therefore should [be] suppressed (citation omitted)." People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67 (1975); See also: People v. MacKenzie, 61 A.D.3d 703, 875 N.Y.S.2d 908 (2nd Dept. 2009) lv. den. 13 N.Y.3d 798, 887 N.Y.S.2d 547 (2009) [following an unreasonable stop the defendant's statement and breathalyzer results were suppressed]

Accordingly, the Defendant's application to suppress all evidence recovered by the police following this unreasonable stop is granted.

For further information, including an analysis of legal decisions and statutes, on New York DWI and DUI laws, please follow the highlighted link. Articles on other statutes found in the New York criminal law as well as cases in the news can be found on Crotty Saland PC's New York Criminal Lawyer Blog.

The New York City DWI lawyers at Crotty Saland PC represent those arrested for Driving While Intoxicated in Westchester, Putnam, Dutchess, Rockland, New York (Manhattan), Kings (Brooklyn), Bronx and Queens Counties. The criminal defense firm was founded by two former Manhattan prosecutors.

New York DWI and DUI Laws (Driving While Intoxicated and Driving Under the Influence) are codified in the Vehicle and Traffic Law. More specifically, New York VTL section 1192 is where the various charges for drunk driving can be found. Regardless of the particular subsection, an experienced New York DWI attorney will tell you that the critical element of any DWI or DUI charge is that the person accused must be "operating" the motor vehicle. This operation does not mean the person must actually be driving the vehicle. In other words, the car need not be moving down the street or highway as the defendant is applying the gas and steering the vehicle.

To better understand the difference between "driving" and "operating," consult with your New York DWI lawyer who can explain the charges against you and how the evidence in your case does or does not fall within the bounds of the law. Having said that, the following article may be a starting point to educate yourself so you can vet your case with your counsel and he or she can properly advise you.

Operation of a Motor Vehicle

While driving a motor vehicle is certainly operating the same, if the engine is running, but the automobile is not in motion, is it being operated? For example, if it is a bitter cold night and you decide to sleep off your intoxication in your car and you turn the engine on to pump up the heat, are you operating the vehicle as it is sits idling? Certainly, the car is not in motion and it is not being driven. So are you operating that car?

Assuming your case went to trial, a judge will substantially instruct a jury (by utilizing the New York jury instructions revised in 2008) as follows:

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

The jury instructions further address "operating" in a footnote for the court's review:

"The purpose of the revision was to provide a clearer definition of 'operates' by removing the language 'for the purpose of placing it in operation' and replacing such language with 'for the purpose of placing the vehicle in motion.' See People v Alamo, 34 NY2d 453, 458 (1974); People v Marriott, 37 AD2d 868 (3d Dept. 1971); People v. O'Connor, 159 Misc.2d 1072, 1074-1075 (Dist.Ct., Suffolk, 1994). See also People v. Prescott, 95 NY2d 655, 662 (2001)."

As you can tell from reading this excerpt, the "old" law defined "operation" as the "purpose of placing it in operation." The new instructions changed the definition to one that specifically requires putting the vehicle into motion. The difference is clear and critical. The new language requires that your intent be to not merely have the car running, but to actually have the intent to put the vehicle in motion, ie, to drive the automobile.

Don't get too excited about the above jury instruction and case law. While the law requires that "operation" include an intent to put the vehicle in motion and the prosecution must prove this element beyond a reasonable doubt, merely stating that you lacked the intent will likely not be convincing. It is the facts and evidence before the court and jury that will be crucial. Was the car in a parking space on the street? Had the steering wheel or tires been moved to point outward? Was the heat running? Was your seat belt on? What did you say at the time of your arrest, if anything? While the law may be on your side, your New York DWI lawyer will still want and need corroboration of your intent in some capacity. Just stating you had no intent to move the vehicle may not be enough even though the prosecution has all of the burden. Regardless, an experienced New York DWI and DUI attorney will do his or her best to craft a defense around this intent (or lack of thereof).

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent clients accused of DWI and other crimes throughout the New York City region. For additional information on DWI and DUI laws as well as other New York Penal Law statutes, legal decisions and cases in the news, please review the Crotty Saland PC website and the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Starting December 15, 2010, if you are convicted of DWI or DUI (Driving While Intoxicated) in Westchester County, New York, you will have another collateral consequence to deal with beyond your criminal record. Whether it is in White Plains, Yonkers, Mt. Kisco or any other municipality, if you are arrested by a Westchester County Police Officer and you are convicted of any DWI crime found within VTL 1192, a local allow permits the seizure of your vehicle. To be clear, the law only applies to DWI convictions associated with the Westchester County Police as opposed to Driving While Ability Impaired (a violation and not a crime) or arrests made by local municipal police officers or New York State Troopers.

It remains to be seen whether this law will be challenged and many issues are certain to arise.

For extensive information on New York State DWI laws, please follow the highlighted link. Additional information on New York DWIs and other crimes as well as legal decisions and commentary on cases in the news, go to the New York Criminal Lawyer Blog.

Crotty Saland PC is a New York criminal defense firm representing clients in DWI arrests and other criminal matters throughout the New York City region. Prior to starting the firm, both founding New York DWI lawyers served as prosecutors in the Manhattan District Attorney's Office.

I previously addressed New York's Leandra's Law as it relates to new offenses and crimes in the realm of Driving While Intoxicated (DWI / DUI) pursuant to New York Vehicle and Traffic Law section 1192. The two major changes to the law are that is now an automatic felony to perpetrate a DWI with a child fifteen years old or younger in the vehicle (VTL 1192.2-a(b) / 1192(2a)(b)) and if one is convicted of DWI one must install an ignition interlock device in one's vehicle. Both of these laws have been addressed in earlier entries. Information can be found through the respective links.

This entry will address the new statutes and crimes established by the legislature in New York for those accused of disobeying the new ignition interlock device laws. Each of the following DWI crimes relating to the circumvention of an ignition interlock device in New York are "A" misdemeanors.

VTL 1198(9)(a): Asking, requesting or soliciting someone to blow into an ignition interlock device or to start a vehicle equipped with such a device so that the restricted person can operate the vehicle is crime. In other words, if you are required to have the ignition interlocking device in your vehicle it is a misdemeanor to get another person to blow into that device so you can drive.

VTL 1198(9)(b): It is a crime if you blow into an ignition interlock device or start a vehicle equipped with the device for the purpose of providing an operable vehicle to a person whose driving privilege has been restricted.

VTL 1198(9)(c): Tampering with or circumventing an otherwise operable ignition interlock device is a crime.

VTL §1198(9)(d): No person subject to a court ordered ignition interlock device shall operate any other motor vehicle without such a device.

For extensive information on New York DWI / DUI crimes and laws, please follow the highlighted link. For additional information on other criminal statutes, legal decision and newsworthy cases, please go to Crotty Saland PC's New York Criminal Lawyer Blog.

Representing the accused throughout the New York City region, the founding DWI criminal defense lawyers at Crotty Saland PC served as prosecutors under Robert Morgenthau in the Manhattan District Attorney's Office prior to starting the firm.

Leandra's Law in New York has made the consequences of a misdemeanor Driving While Intoxicated (DWI or DUI) conviction that much more severe. If it wasn't clear that prosecutors and judges in New York have had a zero or minimal tolerance policy for the crimes of Vehicle and Traffic Law (VTL) 1192, Leandra's Law has done away with those questions. As of August 15, 2010, anyone convicted of a DWI misdemeanor not only faces the potential fines, programs and other penalties, but now one must place a mandatory ignition interlocking device on one's car for at least six months.

The ignition interlock device required by Leandra's law must be blown into prior to the car starting. Moreover, at random times during the vehicle's operation, the device requires a sampling to prevent the vehicle from shutting down. It is interesting to note that not only must the individual convicted of New York DWI / DUI (VTL 1192) have this device placed in their vehicle, but they are not permitted to drive other vehicles that do not have the apparatus set up. In the event you do so or tamper with the interlock device, you will face new and additional misdemeanor charges.

For extensive information on New York DWI / DUI laws as well as statutes and legal decisions, please follow the appropriate link above to the DWI section of Crotty Saland PCs website.

Former Manhattan prosecutors, the New York DWI criminal defense lawyers at Crotty Saland PC serve clients throughout the New York city and metropolitan area.

Braylon Edwards, the New York Jets star wide receiver, was arrested and charged in Manhattan after being stopped for suspicion of Driving While Intoxicated (DWI / DUI) and drunk driving. Although it is not clear what, if any, field sobriety tests were administered, reports indicate that Edwards blew a .16 on the Intoxilyzer (a Breathalyzer device). The likely charges are VTL 1192.2 for registering .08 or above, VTL 1192.3 ("Common Law DWI") based on the observations of the police officer which may have included watery blood-shot eyes, slurred speech, etc., and VTL 1192.1 (Driving While Ability Impaired). DWI in New York pursuant to VTL 1192.2 and 1192.3 are both misdemeanors. VTL 1192.1 is a violation and would not result in a criminal conviction.

While it is too early to give a full analysis of Edwards' DWI case, as a general rule, Manhattan prosecutors do not make non-criminal offers on DWI arrests where the BAC level is as high as .16. While it is common for offers of VTL 1192.1 (a traffic infraction) to be made on DWIs in the vicinity of .08 to .12, it is significantly more difficult to get an offer the higher one's BAC is. Other factors prosecutors examine include the defendant's history and whether there were any elements of the offense that would enable them to charge additional crimes such as Reckless Endangerment (DWI by itself is not necessarily "reckless" in the eyes of the law. Other factors of criminality must be present such as speeding / weaving through traffic, barely avoiding pedestrians, etc.). Moreover, although Edwards did not blow a .18, if he had done so, Aggravated DWI would be charged further limiting possible dispositions.

Potential sentences on DWI for a first time offender include up to one year in jail, a fine from $500 to $1000, potential community service or probation, a drinking and driving program and a three year assessment / fee on one's license. Moreover, one's license will be revoked six months. A stay of that revocation may be made at the time of sentencing so that the convicted may apply for a conditional license relating to work. Compounding matters, As of August 15, 2010, Leandra's Law requires that an ignition interlock device be installed on one's vehicle at the expense of that person. Those convicted of DWI as a misdemeanor cannot drive any vehicle without such a device.

Here, because of the level of the alleged intoxication and the prior assault in Cleveland to a friend of LeBron James, it is likely that no offer will be made. That is, he will be required to plead guilty to a misdemeanor. The potential punishment will be as set forth above. It is an interesting side note, that the Manhattan District Attorney's Office has recently begun presenting misdemeanor DWIs to the Grand Jury. Whether they are now judge shopping or believe that Supreme Court Judges, as opposed to Criminal Court Judges, will take the cases more seriously, is not merely a potentially ethical question, but one that raises many questions. Where Edwards will find himself is yet to be seen.

Even assuming that an offer is not made, Edwards and his criminal defense lawyer need not throw their hands up in the air. What was the basis of the stop? Why was the vehicle pulled over? When Mr. Edwards was given a Breathalyzer or Intoxilyzer, was it done so properly? Was he advised of his rights? Was the machine in proper working order and calibrated correctly? At a minimum, the District Attorney's Office will provide some of this information through paperwork and a video recording at or shortly after Edwards' arraignment. In addition to providing this paperwork, Edwards' license will be suspended and, if applicable, his criminal defense attorney can ask for a Hardship Hearing for an "immediate" conditional license.

While I don't expect him to be bunk mates with Plaxico Burress, Edwards not only has to deal with the criminal consequences of this DWI arrest, but he won't be finding the End Zone any time soon.

For extensive information on New York DWI crimes and laws including a "New York DWI Primer," please follow the highlighted link. In the next week further information will be published on Leandra's law and the ignition interlock devices as well as the new crimes associated with manipulating or circumventing these devices. For additional criminal statutes, legal decisions and newsworthy cases relating to DWI as well as other offenses, please review the New York Criminal Lawyer Blog.

Crotty Saland PC is a Manhattan based criminal defense firm. Prior to starting Crotty Saland PC, our two founding New York criminal defense lawyers served as prosecutors under Robert Morgenthau in the Manhattan District Attorney's Office. Crotty Saland PC represents the accused throughout the New York City region.

The New York criminal defense attorneys at Crotty Saland PC are pleased to announced that our client was acquitted of all charges in Brooklyn Criminal Court after he had been initially charged with and accused of DWI / DUI pursuant to VTL 1192.3, DWAI, pursuant to VTL 1192.1 and Driving Without a License pursuant to VTL 509.

Our client was involved in an accident where an individual struck him from behind rendering his 2000 BMW inoperable. Our client waited on the scene until the police came and the other vehicle drove off. Although he only "blew" a .053 on the Intoxylizer 5000, and the police charged our client with the violation of VTL 1192.1, the Brooklyn District Attorney's Office bumped the charged to "Common Law DWI," a misdemeanor. Throughout the case, the DA's Office had been offering a violation of VTL 1192.1 which we argued was not an "offer," but merely the "worst case scenario" in that the DWI was not the proper charge (.08 is the legal limit unless prosecutors can establish other characteristics of being intoxicated), but an inflated offense in conflict with the facts of the case.

At trial, the arresting officer testified that he and the defendant pushed the inoperable vehicle across Flatbush Avenue. More specifically, crouched down shoulder to shoulder "huffing and puffing," the officer didn't notice the smell of alcohol on our client for 20 minutes. Moreover, at no time during the 20 minutes did our client stumble, slur his speech, trip, loose his balance or show any other indicia of intoxication. The officer was further cross examined to assert that his safety is paramount and if an individual was intoxicated the officer certainly would not have that person push a vehicle with him across Flatbush Avenue (the officer also could not recall who was steering the vehicle). Compounding matters, the officer admitted an error in his paperwork was done in a manner to facilitate that paperwork and although it was not accurate, it was done in a manner that was "easy" for him.

Ultimately, at the precinct, our client complied with the examinations offered by the police and it appeared that he successfully passed those exams despite the officer's testimony to the contrary. In fact, our client often stood perfectly straight with his arms behind his back. While the officer claimed he was "unsteady" because our client took more than the nine requested steps in one test, there court apparently agreed with us that he was steady.

Although, significantly less serious, the court also acquitted our client of driving without a license pursuant to VTL 509. In part, we argued on behalf of our client that the officer's testimony as to the Department of Motor Vehicle records and what they revealed was hearsay. Instead, a business record and or custodian of those records was required to establish this lack of a license. Again, apparently the court agreed.

While the above synopsis of this trial is extremely brief and barely touches on the facts of the case, the lesson is always clear. DWI is a serious offense that can destroy lives and one that can be avoided by taking responsible steps. There is no excuse to make a care a weapon. Having said that, whether you are honest, good or even an all around bad guy, you have rights. We all do. You should exercise those right and protect those rights vigorously. An accusation does not equate to guilt.

Representing clients charged with DWI throughout the New York City region, Crotty Saland PC is a New York trial and criminal defense firm founded by two former Manhattan prosecutors.

For further information on New York DWI laws and crimes, please review the DWI section of the Crotty Saland PC website or the DWI section of the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).