New York DWI & DUI Arrests: When the Police Fail to Establish “Operation” & Probable Cause in a VTL 1192 Case

I don’t know how many times I can say it, but New York drunk driving crimes and driving while intoxicated arrests have enormous ramifications. Compounding matters, criminal attorneys and New York City DWI lawyers often face evidence that is videotaped and based in chemical tests that is difficult to controvert. Even when prosecutors have what appears to be strong evidence of a DUI, the best defense may not be challenging the ultimate determination as to whether the person in question was driving drunk or had a chemical test result .08 or greater. Instead, the best defense may be attacking whether the police had the authority, ability or probable cause to arrest the accused in the first place. This precise issue – probable cause to arrest – was exactly what was litigated in People v. Dwight Ramsey, 069905C2009, NYLJ 1202549717499, at *1 (Sup., BX, Decided April 16, 2012) and worthy of a review in this blog entry.

In Ramsey, the defendant was arrested for violating VTL 1192 (the misdemeanor DWI crime in New York) after the police observed him in his vehicle with a woman. Upon approaching the car, the police claimed they noticed the smell of alcohol, the key in the ignition and ultimately the defendant’s inability to stay balanced. The defendant contended, in substance, that the key was not in the ignition, he was going to get some music CDs with the woman, he had not violated and traffic laws or parking regulations and ultimately the police lacked probable cause to arrest him.

Both the defense and prosecution had an opportunity to argue their points at a hearing conducted before the court. Ultimately, the court held that the police lacked probable cause for an arrest. In part, the reasoning was as follows:

“The crux of probable cause here is whether Defendant was ‘operating’ his vehicle in a manner foreseen by article 31 of the Vehicle and Traffic Law. The term ‘operate’ is broader then the term ‘drive’ and is established upon proof beyond a reasonable doubt that Defendant had recently driven the vehicle or by proof he was seated at the wheel with the motor running and with a present intention of placing the vehicle in operation (see generally, People v. Dalton, 176 Misc. 2d 211 [2nd Dept., App. Term, 1998]).8 (See generally, People v. Haddock, 2001 NY Slip Op 40138U [Nassau County. Dist. Ct., 1st Dist., 2001] [Mapp hearing required where ignition was not engaged)(see also, People v. Hopkins, 22 Misc. 3d 1137A [Just. Ct., Lockwood Twn, 2009])(but see, People v. Key, 81 AD2d 805 [1st Dept. 1981]).”

“In this instance, because the hearing record lacks evidence that Defendant had either moved or intended to move his vehicle when the police approached, Defendant convinces that his privacy expectation was violated and the police lacked probable cause to search the vehicle or to arrest him. Consequently, the vehicle search produced only tainted evidence that must be suppressed. Further, the Court concludes Defendant’s reasonable privacy expectation in his automobile was violated because no evidence exists Defendant moved or intended to move his car from the location where he parked the vehicle the night before (see generally, People v. Nicodemus, 247 AD2d 833 [1998] [rules regarding standing for automobile passengers]) (see generally also, People v. Ramirez-Portoreal, 88 NY2d 99 [1996]) (see generally. People v. Bradford, 61 AD3d 1419 [4th Dept. 2009]).”

In finding that no probable cause to arrest existed, the defendant was also able to obtain the suppression of the intoxylizer (chemical testing device) results that followed. Ultimately, his case was dismissed.

The Ramsey decision underscores many important elements in a New York DWI case. First, as with any crime, prosecutors must have probable cause to arrest you. If they do not, the evidence used against you may all ultimately be suppressed as “fruit of the poisonous tree.” Further, It is critical to understand the distinction in New York law between “operation” and “driving.” The law requires the former which does not necessarily encompass the latter. Whether Ramsey will help you attack a prosecutor’s contention that you were “operating” a motor vehicle or not, is something to discuss with your counsel. In the right case, it may make the difference between a DWI conviction and walking away from a potentially crippling allegation.

To learn more about the nuances, rules, and elements of New York DWI laws and DUI crimes, follow the links above to specific content on the New York DWI Information Page. There you will find information on the various DUI statutes, Hardship hearings, DMV Refusal Hearings, legal decisions interpreting the law and much more relevant information.

Established by two former Manhattan prosecutors who both served in the DWI Unit, Crotty Saland PC is a New York criminal defense firm. The New York criminal lawyers at Crotty Saland PC represent clients for DWI and DUI arrests throughout New York City and many of the surrounding suburbs.

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