Tag: Driving While Intoxicated

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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The Defendant was charged with, among other things, Driving While Intoxicated (VTL 1192). Defendant challenges the stop and subsequent arrest. Defendant further claims that the results of his blood alcohol test should be suppressed because his right to counsel was violated. The officer, a veteran in driving while intoxicated detection, pulled over the defendant inquired as to whether the defendant had anything to drink. At first, the defendant denied drinking anything. Sobriety tests were performed and a portable breath test came up with results of .07 and .08. The police officer asked the defendant again if he had anything to drink to which the defendant responded that he drank a sip of wine. The defendant was taken into custody and asked to speak to an attorney.

“A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 NY3d 544, 549 [2012]; People v. Gursey, 22 NY2d 224, 227 [1968]). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 1. more