In New York, one requirement of a DWI Offense, such as Vehicle and Traffic Law 1192(2) or 1192(3), is that the person accused of drinking and driving was “operating” the motor vehicle. “Operating” is an interesting choice of words. It’s worth noting that the drafters of the statute deliberately chose this word rather than the more conversational “driving.” This may seem like an arbitrary distinction, but any competent DWI lawyer can tell you it is not. Add to the legal analysis the complexities of cases where the person charged with a DWI was never actually observed driving the car, you can see how things can get “hairy.” Having a criminal defense attorney with expertise in the area of DWI is critical in identifying the shortcomings and complexities of a DWI case and ensuring that your rights are protected along the way.
A law that without question has a good intent and goal, New York City’s Right of Way law, codified as Administrative Code 19-190, has seen its fair share of legal challenges by criminal defense lawyers throughout the City of New York. Although the law that has criminal sanctions does not apply to the State of New York, those drivers in Manhattan, Brooklyn, Bronx and Queens are within the law’s jurisdiction. A recent Appellate Term Decision from the Second Department did not ultimately address the constitutionality of NYC Admin. Code 19-190, but whether a bare minimum complaint reciting the statute with limited factors sufficiently and legally supports this non-New York Penal Law crime.
The New York DWI and DUI lawyers at Crotty Saland PC are proud to announce the exoneration of a client arrested for drunk driving, aka, Driving While Intoxicated, pursuant to New York Vehicle and Traffic Law (VTL) 1192.3. After “blowing” a .42 on the portable breath test (PBT), our client returned to the NYPD precinct and performed a second breath test where he blew a .6 on the Intoxilyzer. Despite blowing below the legal limit for a DWI pursuant to the per se VTL 1192.2, both the NYPD and prosecutors charged our client with the misdemeanor “common law” DUI crime of VTL 1192.3.
Although some New York DWI and DUI lawyers might argue the “fix is in” when it comes to defending a client in a DWI Chemical Test Refusal Hearing at the NY DMV with an Administrative Law Judge, simply that is not the case. While the standard in these hearings are lower than the parallel proceedings in criminal court where a VTL 1192.3 arrest is prosecuted, the lower burden of proof is not the equivalent to an insurmountable challenge. Case (or cases) in point, both Elizabeth Crotty and Jeremy Saland secured dismissals after the NYPD Officers did not provide sufficient evidence at the respective DWI Refusal Hearings. Because of Crotty Saland PC’s efforts, cross-examination of the police officers and convincing of the judges, these clients avoided a year long revocation of their license to drive in the State of New York. Obviously, the alternative resolution would have been horrific for our clients.
Before briefly discussing these specific Refusal Hearings, any time a person is arrested for and charged with a Common Law DWI pursuant to New York VTL 1192.3, the arresting police officer or member of the police department must first ask that accused to provide a breath sample. If he or she refuses, the officer in clear and unequivocal language must also advise the driver that failure to submit to a chemical test would result in an immediate suspension and ultimate revocation of his or her license to drive. Not only can this refusal be used against the driver at a later criminal hearing or trial, but even if a criminal case is later beaten, dismissed or the accused is exonerated, the finding and punishment by the Administrative Law Judge would stand. In addition to the issues addressed above, the Administrative Law Judge must also find that the defendant was arrested with probable cause and he or she was in fact operating the motor vehicle.
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?