DWI in New York: Suppressing the Breathalyzer Part II

As I have stated countless times throughout the entries in my blog, assistant district attorneys and the NYPD in New York City vigorously prosecute those accused of DWI. Make no mistake, the NYPD, judges and prosecutors take the crime of DWI very seriously and an experienced NY criminal attorney should be retained to formulate your best plan of attack to defend and protect your liberty and livelihood.

As a former prosecutor in the Manhattan District Attorney’s Office for seven years and a New York criminal defense attorney, I work with each client to take the time to develop a specific plan for their case whether it is DWI, Identity Theft, or another criminal matter. In order to defend clients to the best of my ability and provide them with a zealous representation, I stay on top of legal decisions in New York City as well as the state.

One such decision issued on July 16, 2008 in Bronx Supreme Court is a decision that is significant to the area of DWI. In People v. Sonny Hormeku, Bronx Supreme Court Justice Richard Lee Price denied suppression of a breathalyzer and coordination test conducted after the defendant’s DWI arrest. In this case, the defendant generally asked for an attorney after his arrest, but prior to consenting to conducting a breathalyzer and coordination test. Therefore, he argued, because he asked for counsel and the tests were still conducted, the results of the test should be suppressed.

The Court recognized the principle that “[A] defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test if he requests the assistance of counsel” People v. Shaw, 72 NY2d 1032, 1034 (1988); See also People v. Monahan, 295 AD2d 626 (2d Dept. 2002). Despite this, the Court further asserted that a defendant does not have the “absolute right to refuse the test until a lawyer reaches the scene” People v. Gursey, supra at 229. Moreover, the Court noted that if the defendant specifies a particular attorney the police must take reasonable steps to try contacting that attorney so the defendant and the attorney can have a telephone conversation. See People v. Palazzo, 2008 WL 2513208 (Sup. Ct. Bronx Cty, June 17, 2008).

In denying the defendant’s motion to suppress, the Court reviewed the facts and found that the defendant did not make a specific request for a specific attorney. Moreover, despite his general request, the defendant agreed to partake in the breathalyzer and coordination tests for DWI.

Although this defendant failed to properly exercise his rights by requesting for a specific attorney, if you find yourself in a similar predicament it is in your interest to inform the police you wish to consult with a particular criminal attorney. To expedite the process you should supply the police with your attorney’s number or have a phone number accessible. Although you may not be prepared in this type of situation, Jeremy Saland, a NY criminal defense attorney and former Manhattan prosecutor, is accessible any time day or night to protect your rights, liberty, and livelihood.

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