Tag: DWI

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In the People v. Karagoz, 2016 NY Slip Op. 06842 (App. Div. Second Department October 19, 2016), the Second Department reviews whether evidence was properly suppressed, the inquiry focuses on whether the police were correct in approaching the defendant.

The Court reviewed the testimony from the officer – “he observed a Buick in the northbound left turning lane on Oceanside Road; the operator of the Buick appeared to be unconscious behind the wheel. The officer parked his vehicle behind the Buick. Another police vehicle arrived on the scene and parked in front of the Buick. In addition, two ambulances arrived on the scene and were facing south on Oceanside Road blocking southbound traffic. Both police vehicles and the ambulances had their lights on. Traffic could pass through on the northbound side of Oceanside Road; the left northbound turning lane and southbound traffic were blocked.” A short time after, the officer walked back to his vehicle and noticed the Defendant stopped her vehicle behind his in the turning lane. The officer approached the vehicle and asked for the basic stuff: license, registration and insurance card. Upon this inquiry, the officer noted the bloodshot eyes, slurred speech and detected the odor of an alcoholic beverage. The officer approached the Defendant based on his observation that the Defendant’s stop seemed “odd.”

The question in this case is whether the police could approach the Defendant’s vehicle on this basis – that the officer found it odd she was there: more

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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The Appellate Division, Third Department, provides another example of why it is important to speak to an attorney before speaking with the police, even in a traffic stop. New York DWI is not limited to alcohol. As prescription medications become more prescribed and more prevalent in the lives of New Yorkers, one must understand that Driving Under the Influence and New York Driving While Ability Impaired can occur with a mix of legal drugs and alcohol. New York Driving While Ability Impaired can result from taking legally prescribed medication in excess or to the point of intoxication. Of course, Driving While Ability Impaired can also result from taking illegal medications, such as prescription painkillers, and driving a vehicle.

New York Criminal Defense attorneys and clients should know that even over the counter medications can impair one’s ability to a drive a vehicle. Medications have obvious warnings on them: do not operate heavy machinery, do not take more than a certain amount, etc. One must be diligent in what he or she ingests. Additionally, one must be very careful not to get behind the wheel of a car under the influence of any intoxicant. Lastly, should you be confronted by the police, whether for a traffic stop or because you were in a car accident, speak to an attorney: Call the Law Offices of Cory H. Morris – 631-450-2515.

This case involved a car crash where it was alleged that the driver was driving while his ability to do so was impaired that resulting in death. What is key to note is that the driver demanded an attorney – something everyone should do when questioned by the police – and his indelible right to counsel attached (in New York the right to counsel is indelible) which the police violated and, as a result, the chemical tests were suppressed.

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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