With Memorial Day Weekend upon us, many people unfortunately make the mistake of drinking and driving in New York State and NYC. As a NY criminal defense attorney and former Manhattan prosecutor at Crotty Saland PC, I have defended and prosecuted individuals charged with Driving While Intoxicated (DWI). I can tell you that law enforcement and the courts vigorously prosecute DWIs regardless of whether it is your first time. Make no mistake, a DWI is a very serious crime that can have horrific results and that fact is not lost on prosecutors or the courts. That being said, no matter what crime you are accused of, even DWI, the police must still act within the confines of the law. Your rights should not and cannot be violated no matter the circumstances.
In the May 8, 2009 Queens Criminal Court decision of People v. Steven H. Noreiga, 2008QN001052, a NY criminal defense lawyer did his best to protect his client’s rights after he was arrested and charged with DWI. In that matter, the defendant made an illegal u-turn. Upon stopping the defendant, the officer noticed the strong odor of alcohol on the defendant’s breath. Shortly thereafter, the defendant was asked to take a breathalyzer at the scene where he “blew” a .188. The police officer then drove the car and parked it near the precinct while the passengers who were in the vehicle went there as well. A while later, and after determining that the defendant was not the owner of the vehicle, the officer went to secure the vehicle. At that point he noticed six 12 ounce bottles of Corona beer. Four of these bottles were opened with varying amounts of alcohol inside. During motion practice, the defendant’s attorney challenged the probable cause to arrest the defendant, the breathalyzer result at the precinct, as well as the recovery of the bottles of beer.
The court decision after the jump (be prepared, its long…)
The court found that the officer lawfully stopped the defendant’s vehicle after the illegal u-turn which was in traffic infraction. (See People v. Ingle, 36 NY2d 413 ; People v. Bryon, 4 Misc 3d 1024[A][Sup Ct, Bronx County 2004].) Following the rationale in People v. DeBour, 40 NY2d 210, 223 , the officer was permitted to ask the defendant to exit the vehicle after smelling the alcohol and noticing other signs of intoxication. After the defendant exited the vehicle, the officer asked the defendant to take a breathalyzer test which the defendant did. After blowing a .188, the court found that the officer had probable cause to arrest the defendant. (See People v. Ball, 141 AD2d 743 [2d Dept], lv denied 72 NY2d 954 ; People v. Blajeski, 125 AD2d 582 [2d Dept 1986], lv denied 69 NY2d 877 .) Based on the above, the breathalyzer results were not suppressed.
In dealing with the second issue, the recovery of the bottles of beer in the vehicle, the court disagreed with the prosecution that the officer recovered the beer bottles based on the plain view doctrine. The court noted:
“The Court of Appeals stated in People v. Diaz, 81 NY2d 106, 110 (1993), that ‘[u]nder the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object’s incriminating nature is immediately apparent. (citations omitted).’ The continued viability of the prosecution’s reliance on the plain view doctrine requires the prosecution to also demonstrate [the officer’s] discovery of the beer bottles was inadvertent. (People v. Coston, 271 AD2d 694 [ 2d Dept], lv denied 95 NY2d 833 .)”
The court futher concluded:
“Assuming [the officer] saw the beer bottles while standing next to, but outside of the Blazer, and thus accepting the People’s version of how he came to seize the beer bottles, the People have nevertheless failed to demonstrate that [the officer] had lawful access to the Blazer when he entered the Blazer to seize the beer bottles. It is clear that [the officer] had the means to secure the Blazer while he sought a search warrant and the prosecution has presented no urgent, public safety concern (cf. People v. Singleteary, 35 NY2d 528 [urgency in seizing evidence identifying robbers of several elderly people from a car without a warrant constituted an overriding public safety concern]) or exigent circumstances, (cf. People v. Ciaccio, 45 NY2d 626 [exigent circumstances existed to overcome need to first obtain a search warrant where police had probable cause to believe a hijacked truck containing stolen watches was about to be moved]) that could excuse [the officer’s] failure to obtain a search warrant in order to seize the beer bottles. Here, as in People v. Spinelli, 35 NY2d 77, 81-82  it is evident there was no impediment to [the officer] getting a search warrant: ‘The crux then is that there was ample time for the law enforcement officials to secure a warrant in order to make this significant intrusion onto the defendant’s premises . . . . In the case at bar there was absolutely no justification – either relating to exigent circumstances or the nature of the search or seizure effected – for not obtaining a search warrant.’ While the police in Spinelli entered private property to seize the stolen truck, the Blazer was already in police custody, either in a secure area or on a public street near the precinct. The defendant’s privacy interests in the Blazer is as the United States Supreme Court recognized in Arizona v. Gant, 556 US ___,2009 WL 1045962, ‘ . . . nevertheless important and deserving of constitutional protection,’ particularly in the absence of any safety or evidentiary concerns that otherwise might have justified a warrantless search of the Blazer. Accordingly, I find the People have failed to justify the seizure by Officer Weber of the beer bottles from the Blazer based on the plain view doctrine and the defendant’s motion to suppress the beer bottles recovered from the Blazer is granted.”
As I stated above, we, at Crotty Saland PC, fight zealously to make sure our clients’ rights are protected. Although DWI is a serious matter that has the most terrible consequences to innocent people on the road, law enforcement cannot violate your rights. If you are accused of any crime, make sure your rights are protected. Only then can your freedom, liberty and integrity be preserved.