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Articles Posted in DWI and Traffic Offenses

Not all crimes involving Driving While Intoxicated are found under title 1192 of the New York Vehicle and Traffic Law (“VTL”). While all New York Drunk Driving crimes, aka, DWI and DUI, are extremely serious, so is an arrest for the DWI related crime of First Degree Aggravated Unlicensed Operation of a Motor Vehicle, VTL 511(3)(a)(iv). Before even addressing the felony implications of Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, remember that you will also face a DWI charge because the former cannot exist without the latter.

Addressing the common DWI crimes of VTL 1192.3 or VTL 1192.2, do not forget that these crimes are misdemeanor offenses that carry serious penalties within the realm of the New York criminal justice system (also, a conviction for one of these crimes leaves you with the scar of a permanent record) and the Department of Motor Vehicles. Even more concerning than these misdemeanors crimes, if you are driving drunk with a child fifteen years of age or younger in a car, then you will not just face one of these “lesser” offenses. Instead, since 2009, the passage of Leandra’s Law made driving drunk with a child in your car a felony punishable by a sentence of up to four years in a New York State prison. This is the case whether or not anyone was injured, there was a car accident or you were merely arrested at a checkpoint. Not that any crime involving a New York DWI or DUI is a “joke,” but New York VTL 1192.2-a(b) is symbolic of the catastrophic ramifications of driving while intoxicated in the State of New York.

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Crotty Saland PC, a New York City criminal defense firm founded by two former DWI prosecutors and DWI defense attorneys, is pleased to announced a resolution to a case a long time in the making. Although the initial offer required a plea to the misdemeanor crime of VTL 1192.3 (also called “common law DWI”) with an opportunity to later re-plea to Driving While Ability Impaired (“DWAI”) pursuant to New York VTL 1192.1, our client rejected this deal and proceeded to trial. In the midst of the cross examination by Crotty Saland PC of the New York City Police Department officer who effectuated the arrest, the prosecution offered our client a plea to Disorderly Conduct (New York Penal Law 240.20). Instead of facing a potential conviction that would require our client taking the DDP, being fined hundreds of dollars and having our client’s license suspended, our client’s case was immediately sealed without any conditions.

After the prosecution conducted their direct examination of the officer who arrested our client for DWI (sometimes called “DUI”), Crotty Saland PC cross examined the witness on numerous inconsistencies between the police paperwork and his testimony. For example, the officer testified at a earlier hearing that the accused drunk driver was traveling westbound on the Belt Parkway, but later contradicted himself. Even more significant, the officer testified inconsistently between the initial hearing and paperwork regarding “watery blood shot eyes.” At trial, the officer testified our client’s eyes were clear. Further, while the prosecution stated in substance that our client drank numerous glasses of wine during the opening statement, the officer testified that our client only admitted to drinking one glass. The list of inconsistencies extended well beyond what is addressed above, but not all of these errors were exposed before the prosecution made an offer mid-trial.

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One of the worst side effects, if that is the proper way to describe them, of a New York arrest for DWI or DUI (pursuant to New York Vehicle and Traffic Law 1192.2) is the unfortunate reality that when you go before a judge for your arraignment the court will suspend your license to drive. For many people charged in New York City with drunk driving or driving while intoxicated, a license suspension may not mean all that much. After all, many denizens of NYC do not have vehicles and instead utilize public transportation. For others, however, a NYC DWI arrest for VTL 1192.2 and its subsequent license suspension can have terrible implications on a career, education or medical treatment. In these cases, a New York DWI lawyer or New York criminal defense attorney representing a client at a VTL 1192 arraignment can request what is commonly referred to as a “Hardship Hearing.”

The law of the New York DUI or DWI Hardship Hearing is found in VTL 1193[2][e][7][e]. Not merely a “regular” hardship, one must suffer an “extreme hardship” if one’s license to drive is suspended. Only then, upon a showing by the accused DWI driver, may the court grant a hardship license or hardship privilege. Even if the court does so, a defendant’s license to drive is still suspended, but driving privileges are restored on a limited basis.

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Most people are familiar with New York DWI laws and crimes on a general level. That is, if you drive drunk in Manhattan, drive under the influence in Brooklyn or drive while intoxicated in White Plains, the potential crimes that you face are only one of a few set forth in New York’s Vehicle and Traffic Law. If you “blow” a .08 or higher you will likely be arrested and charged with DWI pursuant to VTL 1192(2) or VTL 1192.2 and if you refuse to give a BAC sample in an intoxilyzer or you display the characteristics of intoxication such as blood shot eyes and slurred speech, you will be arrested for DUI pursuant to VTL 1192(3) or VTL 1192.3. Regardless, each of these crimes are misdemeanors punishable by jail, probation, the Drunk Driver’s Program (DDP) a fine and license suspension.

What is less known by many people including those legal professionals who are not New York DWI lawyers or DUI attorneys, is that a second DWI arrest (actually a conviction) is punishable as a felony offense with a sentence of up to four years in prison. This second drunk driving arrest in New York must be within ten years of the previous arrest and conviction. It is important to recognize that an arrest for VTL 1192.2 or VTL 1192.3 is not enough to establish the basis of the felony DWI crime. Further, if a lesser plea offer is accepted to the violation of Driving While Ability Impaired is accepted (VTL 1192.1 or VTL 1192.(1)), this non criminal disposition will also not be form the foundation of a felony DUI conviction.

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Every year New York DWI attorneys and DUI lawyers find themselves representing clients accused of drunk driving and Vehicle and Traffic Law 1192 crimes that are re-defined by new criminal statutes or legal decisions. For example, Aggravated DWI in New York State is a crime that enhances penalties and did not exist years ago. Further, while portable “brathalyzer” tests were often not admissible at trial years ago, many courts are allowing prosecutors from New York City and Westchester County to municipalities and jurisdictions in Western New York and Upstate to introduce the field test BAC results with proper foundation.

One of the areas of law that always seems to expand with renewed analysis by local, county and appellate courts concerns the “operation” or “operating” terminology in VTL 1192 arrests. First, courts often address whether one must be actually driving to be operating (one does not) and second, if a defendant is not seen operating the vehicle how prosecutors can establish a drunk driving or driving while intoxicated crime circumstantially. A case right on point, and a very recent appellate decision, People v. Shaffer, 943 NYS2d 672 [3rd Dept. 2012], examined these issues. In Shaffer, a State Trooper observed the defendant sitting on his motorcycle. Although the motorcycle was not running, the defendant was wearing a helmet and facing the wrong way down a one way street. Ultimately arresting the defendant for violating VTL 1192.2 and VTL 1192.3, the Appellate Court found that there was both probable cause to arrest the defendant and it was of nominal consequence that the officers did not actually observe the defendant driving or operating the bike. Testimony at trial revealed, as mentioned above, that the defendant sat upon his motorcycle facing the wrong way, helmet on his head, kick stand up and keys in the ignition. Although the defendant’s motorcycle was not running, the defendant admitted to driving it moments before. More specifically, he stated he travelled about fifty yards down the one way road (the correct direct), realized he had gone the wrong way and turned around to figure things out. When taking into consideration that the officers observed the “standard” indicia of intoxication – watery and blood shot eyes, slurred speech and the smell of alcohol – along with the fact that the defendant was astride his motorcycle with the key in the ignition and kickstand up, admitted to driving and failed field sobriety tests, probable cause was certainly in place to arrest the defendant. The greater (or at least equally important) question was whether this evidence, if credible, was enough to prove the case beyond a reasonable doubt. Simply, the answer here was yes. Even without direct knowledge of operation, the circumstantial evidence was very strong and by itself can form the basis of a DWI or DUI conviction.

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While nobody wants to find themselves as the subject of a New York DWI or DUI arrest, I don’t think anyone could legitimately argue that New York drunk driving laws are firm, serious and potentially devastating for a good reason. As a New York DWI lawyer and DUI attorney as well as a former Manhattan prosecutor assigned to the DWI Unit, I have seen some ugly cases where terrible accidents resulted from driving while intoxicated. Simply, New York VTL 1192 and its various subsections serve a very legitimate purpose in protecting the public.

With the understanding that the laws to protect our roads serve a tremendous purpose, one should not ignore or disregard the fact that people are accused of driving drunk when they may not be remotely intoxicate or impaired. Even assuming there is consumption of alcohol, that consumption may not rise to a criminal level. Regardless of your reason to challenge an arrest for DWI, police must act properly and you have the ability to exercise your rights and protect the same. Was there sufficient probable cause for the police to stop you? Was the intoxilizer or chemical test conducted wrongfully or was the machine not in proper working order? Despite the contention of the police that you failed a field sobriety test, was his or her opinion skewed or is there a non-alcohol related reason why you could not keep your balance? While the following case did not end up favorable to the defendant, can an argument be made that where the police do not find you in your vehicle or your vehicle is not moving (driving), there is not enough sufficient evidence to find you guilty of DWI?

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Those who have never been accused of a crime often fail to recognize the value or importance of the criminal defense lawyer to the justice system. Some even have pretty nasty things to say about the defense bar. Having said that, when the police wrongfully arrest a person who may have not committed a crime, people are mortified. Sadly there is a disconnect. But for the advocacy of a criminal lawyer, the abuse, fraud or simple and honest mistake on the part of law enforcement may have gone unnoticed. People v. Wilfegher Dumay, 2012KN024855, NYLJ 1202575279850, at *1 (Crim., KI, Decided October 4, 2012), exemplifies these issues and the importance of a criminal lawyer who wants to do more than merely attempt to work out a “deal.”

In Dumay, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511.1) an unclassified misdemeanor. In sort, the defendant was allegedly driving with a suspended license. The defendant argued first that there was no reasonable suspicion to stop Dumay’s car. Alternatively, the defendant sought a hearing (often called a “Dunaway Hearing”) to challenge the probable cause to stop the defendant’s vehicle and suppress the evidence obtained as a result of an illegal stop and search. More specifically, the DMV abstract or record of the defendant’s suspension. Although the court denied to motion to dismiss, for the reasons stated below the court granted the hearing to determine whether or not probable cause existed to stop and arrest the defendant.

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New York State has very strict DWI and DUI laws. The crimes that constitute Driving While Intoxicated and Driving Under the Influence range from misdemeanor offenses to felonies. In many of these drunk driving arrests, the police or prosecutors seek to enhance charges based on a variety of circumstances. In fact, where a “normal” DWI for having a .08 or higher blood alcohol content is a violation of VTL 1192.2, there is an automatic enhancement to a felony if a child under the age of sixteen is in the vehicle. You and your New York DWI lawyer will obviously need to assess the landscape of your case and determine the best defense to prevent a lapse in judgement from becoming a crime that lands you in a New York State prison.

In addition to the using “Leandra’s Law” to increase potential charges in a New York DUI and DWI arrest, another crime that is often alleged in a drunk driving incident is the crime of Reckless Driving (VTL 1212). A question that inevitably comes up in these cases is whether or not the conduct of the accused was in fact reckless or whether the prosecution is hanging its proverbial hat on the fact that the true underlying allegation is a DWI. Depending on the factors, your New York DUI lawyer will likely argue that barring other reckless elements, the mere allegation that you were driving drunk does not satisfy the requirements of a Reckless Driving offense.

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Sometimes the best defense to a New York DWI arrest or any DUI related crime may be right in front of your face. That is, the evidence against you may be strong – you blew above a .08, you were swerving in your vehicle and had blood shot eyes – but the four corners of the criminal complaint do not properly establish the crime of drunk driving. Instead of your New York DWI lawyer factually challenging the allegations and contesting your BAC at a hearing or trial, the first step in your defense may be filing a motion with the court to have your case dismissed for facial insufficiency. In other words, regardless of all of the evidence that may or may not come out at trial, the legal complaint against you is not sufficient enough to move the VTL 1192 case forward.

In People v. Dwight Padmore, 2011KN048590, NYLJ 1202570516971, at *1 (Sup., NY, Decided September 5, 2012), the strategy implemented by the criminal defense was just as described above. If, as the defendant’s criminal lawyer believed, the criminal court complaint charging DWI (Vehicle and Traffic Law 1192.3) was insufficient, then prosecutors should be barred from moving the criminal case forward with this complaint. In a fairly unique set of facts, the complaint (which became an “information” once all hearsay was removed) stated in substance that the arresting officer observed the defendant standing behind a car that had been damaged. The defendant admitted to driving and swiping the vehicle and that friends had driven his vehicle away. Further the defendant agreed to pay for the damages that the officer observed. Beyond this description, the police officer further gave the “catch all” description of the defendant’s believed intoxication indicating that he had watery blood shot eyes and smelled from alcohol.

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With Labor Day just around the corner, the NYPD, local police departments, County Police and New York State Troopers will be out in full force looking to arrest drivers for Driving While Intoxicated (DWI), Driving Under the Influence (DUI), Drunk Driving or any other named version of the New York Vehicle and Traffic Law for intoxicated driving. Whether the police arrest you and charge you with a misdemeanor or felony VTL 1192 crime (the section of the law that defines all DWI and DUI crimes in New York), there are a few things that all of us should know about New York DWI laws beyond the obvious of steering clear of drinking and driving in any capacity. In no particular order, remember the following:

(1) When the police pull you over or you are stopped at a DWI checkpoint you need not answer them when they ask you whether or what you have been drinking. You always have a right to a lawyer. Telling your mother you only had a couple of beers when you were busted as a kid didn’t fool her. Make no mistake. It will not fool the police or prosecutors either. Your admission will absolutely be used against you.

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