Category: Driving While Intoxicated

Demand an attorney – in New York, one has the indelible right to counsel once the demand is made. This has tremendous importance. The right to counsel, the invocation of that right in New York, can lead to the suppression of evidence. This can occur even in Driving While Intoxicated (DWI) cases. Here, this New York City Criminal Defendant demanded his attorney before providing a breath sample, a breath test, that was later suppressed because he asserted this right.

The Defendant here was charged with Reckless driving (Vehicle and Traffic Law §1212), operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law §1192 [3]); overtaking a Vehicle on the left (Vehicle and Traffic Law §1163-c) and an equipment violation. As the case often starts, the motorist is stopped and the officer approaches the car. “The defendant was the only person in the vehicle. The officer asked the defendant for his license and registration and through the open window smelled alcohol on the defendant’s breath. Additionally, that the defendant had bloodshot, blurry eyes and his speech was slurred….The defendant was given a portable breath test. The device used had not been calibrated in months. Nevertheless, the defendant registered over a 0.1 blood alcohol content (BAC).” The motorist was arrested and taken to the police station for test to determine his BAC.  At the station, the following colloquy ensued:

The entire exchange took place in about two minutes: the officer announced the start time as 5:43 am and the ending time as 5:45am. When the defendant was asked if he was consenting to a breath test, the defendant shook his head side-to-side and stated: “Until I speak to my lawyer, not —.” The officer interrupted and asked the defendant if he was consenting: “yes or no.” The defendant replied: “I am saying no because I don’t have a lawyer —.” The officer interrupted again and then quickly read a lengthy warning pertaining to the consequences of refusing to take a breath test. The officer again asked the defendant: “I will ask you again, will you take this breath test?” The defendant replied: “I will say no because I don’t have a lawyer and I don’t know what to do —.” Again the defendant was cut off. The officer then asked the defendant if he would take a physical coordination test. The defendant shook his head and said: “I am not taking anything until I get a lawyer.” The defendant was administered the Miranda warnings by another officer. When asked if he understood his right to remain silent and that the statement could be used in court, the defendant replied to each question: “Yes sir.” When it came to the question pertaining to his right to consult an attorney, the defendant stated: “Yes sir, that is what I was saying for a while ago, for a lawyer.” When finally asked if he wanted to waive these rights and answer questions, the defendant stated: “Not unless I have a lawyer.” The video then ends.

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Driving While Intoxicated. Everyone has seen the commercials. Sometimes the driver is in a car filled with some sort of alcohol, swerving, while a trooper turns on flashing lights and pulls him or her over to the side of the road. Driving While Intoxicated checkpoints are rife throughout Long Island and New York. This conviction comes as a result of a DWI checkpoint in Suffolk County New York. The Defendant here challenged the constitutionality of the DWI Checkpoint. Unfortunately for the Suffolk County, New York Defendant, the portion of motion suppressing evidence was denied and he was convicted. On appeal the judgment was affirmed.

On August 24, 2012, after defendant was stopped and arrested at a police checkpoint, the People charged defendant with driving while intoxicated (common law) (Vehicle and Traffic Law §1192 [3]), failing to wear a seatbelt (Vehicle and Traffic Law § 1229 [d] [3]), and failing to comply with a lawful order or direction of a police officer regulating traffic (Vehicle and Traffic Law §1102). After a hearing, the District Court (Jennifer A. Henry) denied defendant’s motion to suppress all evidence obtained as the result of the stop. Defendant subsequently pleaded guilty to driving while impaired (Vehicle and Traffic Law §1192 [1]).

The Court here is required to perform a balancing test: with individual liberty interests on one side of the scale and the governmental interest(s) on the other side of the scale. Here, the government has the compelling interest in pulling over motorists in a program that is purportedly designed to enhance traffic safety in Suffolk County, New York.

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