When Can the Police Question & Arrest You for a DWI or DUI in New York: A Criminal Lawyer Analysis

Sometimes, as a criminal defense attorney in New York, the best way to zealously represent your client against criminal charges is to challenge the admissibility of evidence before the trial begins. This strategy can be particularly effective when a defendant faces any one of the Driving While Intoxicated (DWI) charges listed under NY Vehicle and Traffic Law (VTL) 1192. It is important to remember that no matter its weight or strength, if the evidence (whether it be contraband found on a defendant or statements made by him/her) was not obtained by legal means by the police, then it will not be admissible in a criminal court. That is, if an individual’s Constitutional rights were violated in the apprehension of evidence, whether it be during a New York DWI, DUI or other criminal arrest, then it will be excluded. A recent case in the Kings (Brooklyn) County Criminal Court, People v. Licelle Lovelle, 2010 KN068463 NYLJ 1202516648515, at *1 (Sup., KI, Decided September 14, 2011) raised some very interesting legal issues regarding the admissibility of evidence in a DWI case. Whether or not this case is useful in your tool box when defending against a drunk driving arrest is something worth exploring with your criminal lawyer.

Ms. Lovelle was charged with Operating a Motor Vehicle While Under the Influence of Alcohol Or Drugs and other DWI charges pursuant to VTL 1192 including Driving While Impaired – VTL 1192.1, Driving While Intoxicated Per Se – VTL 1192.2, and “Common Law DWI” – VTL 1192.3. The defendant’s criminal lawyer called for a suppression hearing arguing that the arresting officer violated the defendant’s Constitutional rights while obtaining evidence. Specifically the defense argued that Lovelle’s 5th Amendment rights were violated because the officer took statements without issuing proper Miranda warnings.

A quick legal refresher: The Fifth Amendment protects individuals against self-incrimination. Stemming from this right, and pursuant to Supreme Court case law, whenever the police take someone into custody that individual must be informed of their right not to make any self-incriminating statements (this is embodied in the Miranda rights, which most of us know or at least have seen on countless “Law and Order” episodes). Furthermore, the defense argued that the arresting officer lacked probable cause to arrest the defendant in the first place. The Fourth Amendment of the Constitution guards against any unreasonable search and seizure, and case law has established that in order for the police to make a search and seizure (for example arrest you and search your person) they need to have probable cause (basically a belief that you committed the crime supported by some facts/observations etc.).

In Lovelle the officer observed the defendant’s car parked partially in a crosswalk with the defendant sleeping at the passenger wheel. The defense argued that the officer lacked probable cause to approach the defendant, to make a stop (a seizure) and ask to questions. However, the court pointed out that under VTL § 1202(1)(d) it is illegal to park on a crosswalk; therefore the officer had an “objective credible reason for approaching the defendant’s parked car” and to make a stop to request information. After smelling alcohol on the defendant and noticing the defendant’s bloodshot eyes, unsteady balance, flushed face, and disheveled clothing, the officer had more than enough probable cause to administer a sobriety test. Naturally, when the defendant failed the sobriety test the officer had enough evidence to make a lawful arrest (however, do not be confused with probable cause to make an arrest and guilt at trial beyond a reasonable doubt).

Moreover, the Court would not suppress the statements that the defendant had made to the officer at the scene. Ms. Lovelle was asleep in her vehicle when the officer approached. The court argued that this routine check by the police- inquiring into the suspiciousness and illegal behavior of the defendant (i.e. parking in a crosswalk)- did not require that the officer give the defendant her Miranda rights. Miranda rights are required only when the police take an individual into their custody. The court argued that the officer was merely making a general basic request for information. In New York, police are allowed to approach an individual and inquire about basic, nonthreatening matters such as name, address and destination. The police need an articulable reason for the questioning, but the reason does not need to be indicative of criminality.

Based on the circumstances of the officer’s inquiry, the defendant could not have reasonably considered herself in custody during the routine questioning by the police for information. In other words, since Ms. Lovelle was not in custody (the officer was merely making a general inquiry as to why she was parked in a crosswalk and asleep at the wheel at 4:15AM) there was no legal requirement that Miranda warnings be administered to the defendant at the scene. Ms. Lovelle’d answers- that she had been drinking at a restaurant and thus fell asleep here- were admissible evidence against her in the DWI case.

Lovelle demonstrates that police officers in New York have a right to request information based on circumstances that may not amount to criminal behavior. In other words, while an officer needs probable cause to make an arrest, they need only an rticulable reason for questioning. Furthermore, an officer is entitled to make a stop of a vehicle and driver if that individual is in violation of any VTL statute. Having said that, just as an officer may have the right to make an inquiry, you have a right to refuse to answer. Certainly, admitting you had a few drinks at a bar or restaurant is only going to make your case that more difficult to overcome. Remember, while an arrest for DWI or any other offense is traumatizing at best and life altering at worst, exercising your right to remain silent and to seek criminal counsel may be the best steps you can take to protect your future. To learn more about New York DWI laws and New York DWI crimes, follow any of the highlighted links above. Additionally, information on these and other crimes can be found throughout the NewYorkCriminalLawyerBlog.Com and the New-York-Lawyers.org DWI information page.

Founded by two former Manhattan prosecutors who served in the Trial Division’s DWI Unit, Saland Law PC’s New York criminal attorneys and New York DWI lawyers represent those arrested for DUI and drunk driving charges throughout the New York City area.

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