New York City Administrative Code 19-190, generally defined as failing to exercise “due care” and violating the right of way of pedestrians and cyclists, is a relatively new statute drafted and passed by New York City. Not codified in the New York Penal Law, legislation drafted and passed by the State Legislature and New York State Governor, AC 19-190 is an unclassified misdemeanor. While a conviction can land a person in jail, aka, Rikers Island, it is generally not the sentence of imprisonment that is of grave concern, but the fact that a criminal administrative code violation is indelible. In other words, whether you are convicted of a New York State Tax crime, New York State Penal Law offense or New York City Administrative Code misdemeanor, you will have a permanent criminal record. This blog entry will address some of the legal issues that have arisen since the enactment of AC 19-190.
Unlike DWI arrests in New York where you refuse to “blow,” there are other DWI or DUI crimes that are based on evidence of a person having a BAC of .08 or more. These drunk driving crimes are codified in New York Vehicle and Traffic Law 1192.2. While VTL 1192.2 is the same misdemeanor offense as a Common Law or Refusal DWI of VTL 1192.3, they are also different. These former DUI crimes are not based on whether you were staggering, unsteady on your feet and had slurred speech, but simply on whether your BAC was equal to or exceeded .08 even if you did not exhibit any of the indicia of intoxication. This blog entry addresses the conviction sealing eligibility issues found in New York Criminal Procedure Law 160.59 as it relates to a VTL 1192.2 arrest and conviction. Further, this article briefly examines whether you can seal a DWI conviction and, if so, how you file an application to seal your DWI.
In the State of New York, a DWI arrest and conviction can be based on different theories of the law. One such DUI or drunk driving crime is found in New York Vehicle and Traffic Law 1192.3. Often referred to as either Common Law DWI or Refusal DWI, this Driving While Intoxicated crime is based not on a “blow” of .08 or higher, but merely on a police officer’s experience and observations of, for example, a flushed face, watery-bloodshot eyes and the smell of alcohol on your breath. No, this blog entry does not address the legality of a refusal to provide a breath sample or the legal sufficiency of a DWI complaint charging VTL 1192, but a set of question asked by countless individuals convicted of DWI in New York: Can I seal my criminal conviction for a Common Law or Refusal DWI or DUI and, if so, how do I seal and remove the DWI arrest from my rap sheet or criminal record?
New York City has good reason to enact laws to protect is residents, commuters and tourists. On any given day there are millions of people walking the streets and thousands of cars driving up and down the avenues. However, merely because the intent of the City Council is genuine does not mean that the laws it passes are constitutional, vague, legal or simply “OK.” An example of this is found in NYC Administrative Code 19-190. This “Right of Way” or “Failure to Yield” law has a great purpose, but its application and its legal foundation may have issues. At the time of this blog the Court of Appeals has not weighed in on the issues, but many New York City courts and judges, including those in Manhattan and Queens, have addresses what appears to be some glaring problems. While this blog entry by no means addresses the decision of the highest court in New York as no review has occurred, the following is recent decision from Queens County tied to the dismissal of AC 19-190.
Drunk Driving, Driving Drunk, DUI, DWI, Driving While Intoxicated…Whatever you call it, an arrest in New York for VTL 1192 has certain mandatory elements that the District Attorney must ultimately prove beyond a reasonable doubt at trial. Sure, most cases do not go to trial, but the NYPD or the County or local police in Westchester, for example, must still have probable cause to arrest a subject for VTL 1192. Simply, there must still be some level of evidence and reasonable cause to believe that you, or whomever the accused is, committed a crime of DWI. Being “drunk” is one thing, driving or operating a motor vehicle while intoxicated is quite another. One may a good time while the other endangers the lives of everyone on the road. In the realm of the New York criminal law, if there is no evidence or proof that you were operating a vehicle (not necessarily driving), then there is no criminal case. This particular blog entry addresses a scenario where the accused drunk driver was not merely not driving (double negative, but you get the point), but he was also not inside the vehicle. How then, or better yet, can prosecutors overcome a challenge to dismiss a VTL 1192 arrest in New York where neither the police nor any other witness observes or sees the defendant driving or operating a motor vehicle?
Whenever a person learns that I am a New York criminal lawyer and New York DWI attorney, one of the first questions they ask is whether or not they should “blow” if they are ever stopped or arrested for the crime of drunk driving in New York. Drunk driving, a crime of the New York Vehicle and Traffic Law, is codified as VTL 1192 and in various subsections. When I respond to this question, the first answer I usually give (its more of a statement) is don’t drive drunk or impaired and you won’t ever need to know the answer to this question. Prosecutors and police take this crime very seriously and its not “OK” to put others at risk when you are behind the wheel. Taking off my “regular guy” cap and putting on my criminal defense attorney hat, the analysis changes. While I cannot answer whether you or anyone else should provide a breath sample for the portable breath test (PBT) or an intoxilyzer without having a specific set of facts, the better question is what, if anything, the must the police do upon your request to speak with or call your attorney prior to “blowing”? If the police fail to provide you an opportunity and you ultimately submit to a test, what if any recourse do you have?
It seems as if issues involving DWI, DUI and DWAI arrests routinely “pop up” all over the country and here in both New York State and New York City. The obvious reason as to why this happens is because DWI is an extremely serious, avoidable and potentially catastrophic offense. Whether you are charged with VTL 1192.4, VTL 1192.3 or VTL 1192.2 (or a felony DWI offense), the consequences to your career, financial future, and family is significant. Wrongfully accused or not, you must not only be prepared to defend yourself against the accusation of driving drunk, but you must have at least a general understanding of the law. This particular NY DWI blog entry will deal with the scenario where an accused drunk driver exits his or her vehicle prior to the police arriving and, therefore, the police cannot observe or confirm the accused was actually driving the vehicle in violation of VTL 1192. The question that we are left to tangle with is whether or not the prosecution can sustain a charge of Driving While Intoxicated or Driving While Ability Impaired circumstantially.
Its widely known by New York DWI lawyers, prosecutors, judges and regular every day people that the legal limit for a BAC in a drunk driving, DWI or DUI case is .08. If your BAC is.08 or greater, regardless of where you may reside in New York from the City to the suburbs, you will be charged with violating New York Vehicle and Traffic Law 1192.2. Unlike the common law variety of New York Vehicle and Traffic Law 1192.3 that relies on certain indicia of intoxication (water blood shot eyes, slurred speech, unsteady gate), VTL 1192.2 relies solely on scientific reading from DWI equipment such as an intoxilyzer. The question posed in this particular NY DWI blog entry is if you in fact blow below a .08 can you still be charged with DUI or DWI based on a VTL 1192.3 Offense. That is, even if scientifically your are well below the legal threshold, can the police still arrest and prosecutors still charge you a DWI misdemeanor?
In the City of New York there are cabs, livery cars, Uber services, buses and subways. All of these modes of transportation make it a difficult sell to prosecutors that a drunk driving, DWI or DUI arrest was due to an inability of an accused to get home. Not that such a defense would be a viable or strong one, but these facts explain why prosecutors are often unsympathetic to the plight of an individual accused of VTL 1192.2 or VTL 1192.3. Couple this with the fact that drunk driving crimes in New York (or anywhere) can have significant collateral and direct consequences to other drivers and pedestrians, don’t be shocked if the District Attorney does not want to budge on a good offer. Remember, if you are convicted not only can you face a year in jail, the suspension or revocation of your license, a $1,000 fine and the requirement that you install an ignition interlock, but a DWI will remain on your record forever. While I may be a New York DWI attorney and criminal lawyer, I would tell you the same thing I would tell a family member. While I certainly zealously advocate for my clients in every case, if you are concerned you might be intoxicated call a cab or give your friend the keys.
In New York State from Manhattan and Brooklyn to Yonkers and White Plains, drunk driving, driving while intoxicated, DWI, DUI, or any way you want to describe it, VTL 1192 is an extremely serious offense. Simply, not only is a violation of New York State Vehicle and Traffic Law section 1192 a criminal offense, but a conviction will result in the suspension or revocation of your license, fines and a risk of probation or jail. Even without the public stigma associated with this crime, the collateral consequences are significant both to your career and within your community. Because of the grave consequences resulting from an arrest or conviction for an section of VTL 1192, consulting with and retaining an experienced New York State or New York City DWI attorney as well as having a general understanding of New York DWI and DUI law is critical. This blog entry will provide you with a general understanding of one of the many issues that arise in a DWI case. That is, whether or not the field sobriety test / portable breath test you agreed to take at the scene of your arrest for DWI can be used against you at trial.