Beyond Mitigating a DWI Arrest: New York DUI & DWI Suppression Law

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’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, Saland Law PC is a New York criminal defense firm representing those arrested for DWI crimes and DUI offenses throughout New York.

Contact Information