UPDATE: Bolstering the point made below an Albany City Police Sergeant was recently suspended for advising an acquaintance at the scene of a DWI investigation to refuse to take a sobriety test or submit to an alcohol sensor test.
A local family court judge was recently censured by the Committee on Judicial Conduct for his behavior in connection with an arrest for DWI. The judge pled guilty to a a reduced non-criminal charge of DWAI. Also, an off duty Albany police officer was recently arrested for DWI after police found his vehicle stopped on the side of the highway. What is notable about these cases is not the fact that a judge and cop were arrested for DWI (it happens all the time), but that they both refused to cooperate to one degree or another, and both tried to evade the police. The judge, made a u-turn upon seeing a roadblock ahead and the cop tried to simply drive away.
It is ironic that those responsible for enforcing laws are often the most vigorous resisters when the tables are turned. Do they know something the public does not? Of course they do. They know what happens in court, how cases are prosecuted, and what evidence can be used against them. They also know that when a cop tells a suspect that cooperation will result in leniency, it is a coercive lie intended to extract self-incrimininating evidence. From the perspective of law enforcement, cooperative suspects make prosecutions easier.
I tell people that if they are stopped after drinking, do not admit having consumed any alcohol to the police. However, this advice does not come without a bit of moral soul searching. Is it wrong to lie to the police? If you think so then ask yourself "Is it wrong for the police to lie to you"?
Friday, December 31, 2010
Monday, December 27, 2010
Comfortably Numb
My friend is going to jail. He is not my client or an acquaintance, but a person in my life who I have known for many years. Someone who I know to be a good person and a reliable friend. I believe he is innocent of the crime was charged with. But rather than go to trial, he decided to take a deal. A conviction at trial could have landed him in prison. With the plea bargain he will spend about twenty days in a local county jail. Then he will serve a term of probation. He stands convicted of a misdemeanor.
I told him to take the deal because I was afraid for him. I wasn't thinking like a defense lawyer when I gave him that advice. I was not his lawyer. But I can't help feeling like I failed as a lawyer, and a friend. The fact is that in my practice, I very frequently advise my clients to fight and go to trial. Rarely because they are innocent, but because the government's case stinks. I know the risks involved but I temper the risk with the confidence that we will win. I worry about being prepared rather than focusing on the fear of loss.
Here is my friend's story: About a year and a half ago, he was in the process of moving out of an apartment. He did not sign a lease and was being asked to leave after about a half year's residency. A new owner bought the building. He was pretty pissed off. I recall getting a call from him regarding his legal rights as a tenant. I told him he had to go. He made some threatening comments to the landlord but eventually and in a timely fashion found a new place, packed up his stuff, and moved out.
With most of his belongings gone from the apartment, my friend locked his dog in one night and went to a party. A couple hours after leaving he got a call telling him the building was on fire. After arriving at the building, he watched fireman haul the body of his dead dog out of the building. It was a horrible scene.
Shortly after, my friend asked me to talk to a police investigator who suspected him of starting the fire that killed his dog. The investigator wanted him to take a polygraph. I told the investigator no. A year later, my friend was indicted by a grand jury for arson and the intentional killing of his dog. He was arrested by a SWAT team that stormed his home and locked him up in the county jail.
When I heard the news I went to see him in jail. When I visited him I had every intention of defending him till the end of the day. I know my friend did not set the fire. I know that because first and foremost he loved his dog dearly. I know how much he cared for his dog, (and other dogs he has owned over the years), and I know this from firsthand knowledge. There is no way he would have jeopardized his dog's safety to get back at an asshole landlord, and commit felonies in the process. I told him there is no way a jury would buy the government's case. My friend may be rough around the edges, but he is not a lunatic I thought to myself. And most importantly, where in god's name was the motive for this act? Ample evidence exists to demonstrate my friend's love for his dog. I envisioned marching in witness after witness who would testify to the kindness and compassion my friend has demonstrated to his pets and people over the years.
When I saw him in jail, I didn't think twice about the fact that I would be defending him. I appeared at the bail hearing. The DA wanted 15k and I knocked it down 10k. Not a big deal. A reporter from the local paper asked me some questions and ran a story. I was quoted in the paper testifying to my friendship and knowledge of my friend's character. When I got to the courthouse I found my friend's appointed lawyer and discussed the case with him. Reality quickly set in and I found myself thinking like a lawyer and not a friend. I realized that I was about to take on a legal responsibility that I may not be paid for. I would have to find an expert witness as this was an arson case. I started calculating hours and costs in my head and realized the cost of this defense. (Sadly, my pro-bono account is overdrawn). I also realized the possible ethical pitfalls of defending someone who I have an emotional attachment to. I decided I was making a poor decision. I told my friend he was in good hands and walked away.
Did I do the right thing? I will never know the answer to that but I have learned something about myself through this experience. After doing this work for a few years, a criminal defense attorney will see many clients in jail. When I first started in practice, if I had a client in jail for any reason, I could think about nothing other than getting them out. To me, that was the essence of my job; to keep people out of jail. It was an obsession. But today, I know that there are times when there is nothing you can do about a client in jail or prison. So I brush the emotional horror that a client is incarcerated aside and go on about my work. But I think that is an error on my part.
My whole point of this post was initially to reflect on my now realized indifference toward incarcerated clients (and friends for that matter). To me, there is only one fate secondary in nature to death. That is incarceration. The next time I hear someone comment about how prisoners enjoy a cushy lifestyle, I might deliver an earful. A prisoner, whether in jail or prison, is stripped of everything that defines a person as a human being. You have to fight for your soul and sanity when incarcerated. There is no such thing as an individual in jail. You are a number. And nobody really cares about you. Incarceration is purgatory.
I have become numb to the dismay that comes along with watching a client, or someone you care about do time. The numbness is my personal defense. If I worried like I am inclined to about incarceration, I would drive myself crazy. And I have work to do and responsibilities to focus on. But with a friend going to jail (for a crime he did not commit), I think it is necessary that I let my emotions bubble up a bit. I owe it to my clients. And now, in the prolific words of the band Pink Floyd:
I told him to take the deal because I was afraid for him. I wasn't thinking like a defense lawyer when I gave him that advice. I was not his lawyer. But I can't help feeling like I failed as a lawyer, and a friend. The fact is that in my practice, I very frequently advise my clients to fight and go to trial. Rarely because they are innocent, but because the government's case stinks. I know the risks involved but I temper the risk with the confidence that we will win. I worry about being prepared rather than focusing on the fear of loss.
Here is my friend's story: About a year and a half ago, he was in the process of moving out of an apartment. He did not sign a lease and was being asked to leave after about a half year's residency. A new owner bought the building. He was pretty pissed off. I recall getting a call from him regarding his legal rights as a tenant. I told him he had to go. He made some threatening comments to the landlord but eventually and in a timely fashion found a new place, packed up his stuff, and moved out.
With most of his belongings gone from the apartment, my friend locked his dog in one night and went to a party. A couple hours after leaving he got a call telling him the building was on fire. After arriving at the building, he watched fireman haul the body of his dead dog out of the building. It was a horrible scene.
Shortly after, my friend asked me to talk to a police investigator who suspected him of starting the fire that killed his dog. The investigator wanted him to take a polygraph. I told the investigator no. A year later, my friend was indicted by a grand jury for arson and the intentional killing of his dog. He was arrested by a SWAT team that stormed his home and locked him up in the county jail.
When I heard the news I went to see him in jail. When I visited him I had every intention of defending him till the end of the day. I know my friend did not set the fire. I know that because first and foremost he loved his dog dearly. I know how much he cared for his dog, (and other dogs he has owned over the years), and I know this from firsthand knowledge. There is no way he would have jeopardized his dog's safety to get back at an asshole landlord, and commit felonies in the process. I told him there is no way a jury would buy the government's case. My friend may be rough around the edges, but he is not a lunatic I thought to myself. And most importantly, where in god's name was the motive for this act? Ample evidence exists to demonstrate my friend's love for his dog. I envisioned marching in witness after witness who would testify to the kindness and compassion my friend has demonstrated to his pets and people over the years.
When I saw him in jail, I didn't think twice about the fact that I would be defending him. I appeared at the bail hearing. The DA wanted 15k and I knocked it down 10k. Not a big deal. A reporter from the local paper asked me some questions and ran a story. I was quoted in the paper testifying to my friendship and knowledge of my friend's character. When I got to the courthouse I found my friend's appointed lawyer and discussed the case with him. Reality quickly set in and I found myself thinking like a lawyer and not a friend. I realized that I was about to take on a legal responsibility that I may not be paid for. I would have to find an expert witness as this was an arson case. I started calculating hours and costs in my head and realized the cost of this defense. (Sadly, my pro-bono account is overdrawn). I also realized the possible ethical pitfalls of defending someone who I have an emotional attachment to. I decided I was making a poor decision. I told my friend he was in good hands and walked away.
Did I do the right thing? I will never know the answer to that but I have learned something about myself through this experience. After doing this work for a few years, a criminal defense attorney will see many clients in jail. When I first started in practice, if I had a client in jail for any reason, I could think about nothing other than getting them out. To me, that was the essence of my job; to keep people out of jail. It was an obsession. But today, I know that there are times when there is nothing you can do about a client in jail or prison. So I brush the emotional horror that a client is incarcerated aside and go on about my work. But I think that is an error on my part.
My whole point of this post was initially to reflect on my now realized indifference toward incarcerated clients (and friends for that matter). To me, there is only one fate secondary in nature to death. That is incarceration. The next time I hear someone comment about how prisoners enjoy a cushy lifestyle, I might deliver an earful. A prisoner, whether in jail or prison, is stripped of everything that defines a person as a human being. You have to fight for your soul and sanity when incarcerated. There is no such thing as an individual in jail. You are a number. And nobody really cares about you. Incarceration is purgatory.
I have become numb to the dismay that comes along with watching a client, or someone you care about do time. The numbness is my personal defense. If I worried like I am inclined to about incarceration, I would drive myself crazy. And I have work to do and responsibilities to focus on. But with a friend going to jail (for a crime he did not commit), I think it is necessary that I let my emotions bubble up a bit. I owe it to my clients. And now, in the prolific words of the band Pink Floyd:
Hello?
Is there anybody in there?
Just nod if you can hear me.
Is there anyone at home?
Come on, now,
I hear you're feeling down.
Well I can ease your pain
Get you on your feet again.
Relax.
I'll need some information first.
Just the basic facts
Can you show me where it hurts?
There is no pain you are receding
A distant ship, smoke on the horizon.
You are only coming through in waves.
Your lips move but I can't hear what you're saying.
When I was a child I had a fever
My hands felt just like two balloons.
Now I've got that feeling once again
I can't explain you would not understand
This is not how I am.
I have become comfortably numb.
(solo)
I have become comfortably numb.
O. K.
Just a little pin prick.
There'll be no more aaaaaaaaah!
But you may feel a little sick.
Can you stand up?
I do believe its working good.
That'll keep you going through the show
Come on it's time to go.
There is no pain you are receding
A distant ship, smoke on the horizon.
You are only coming through in waves.
Your lips move but I can't hear what you're saying.
When I was a child
I caught a fleeting glimpse
Out of the corner of my eye
I turned to look but it was gone
I cannot put my finger on it now
The child is grown,
The dream is gone.
I have become comfortably numb.
Pink Floyd
Is there anybody in there?
Just nod if you can hear me.
Is there anyone at home?
Come on, now,
I hear you're feeling down.
Well I can ease your pain
Get you on your feet again.
Relax.
I'll need some information first.
Just the basic facts
Can you show me where it hurts?
There is no pain you are receding
A distant ship, smoke on the horizon.
You are only coming through in waves.
Your lips move but I can't hear what you're saying.
When I was a child I had a fever
My hands felt just like two balloons.
Now I've got that feeling once again
I can't explain you would not understand
This is not how I am.
I have become comfortably numb.
(solo)
I have become comfortably numb.
O. K.
Just a little pin prick.
There'll be no more aaaaaaaaah!
But you may feel a little sick.
Can you stand up?
I do believe its working good.
That'll keep you going through the show
Come on it's time to go.
There is no pain you are receding
A distant ship, smoke on the horizon.
You are only coming through in waves.
Your lips move but I can't hear what you're saying.
When I was a child
I caught a fleeting glimpse
Out of the corner of my eye
I turned to look but it was gone
I cannot put my finger on it now
The child is grown,
The dream is gone.
I have become comfortably numb.
Pink Floyd
Monday, December 20, 2010
Hooray! An Honest Cop
"Counselors, the decision I have to make is not easy. This was a very close call."
Uh oh. When I hear these words in court my heart sinks. Because when it is a close call in a criminal case, the chances are for more likely that judge is deciding in favor of the state. My heart also sinks because it means I am going to probably appeal. It might be extra work for me that I look forward to, but it comes at the expense of my client's wallet and peace of mind.
After years of doing this work, I have trained myself to keep my cool when I lose on a motion. Especially those motions that I think are a no-brainer for my side. But in criminal cases, judges' have an inherent inclination to to credit the police and the state. It makes me angry. I can't help it. And it really makes me sick when a judge admits to this bias in writing.
Out of all the written decisions on motions I have received over the years, too many contain language like this. "To the officer's credit he admitted not observing a VTL violation". Or, "The officer deserves credit for his candor, admitting he made a mistake in his paperwork". Etc.
Why should the police be given credit for being honest? I mean, every time I read a statement by a judge imparting integrity upon the officer who testifies honestly under oath my blood boils. It is as if the judge is saying that honesty by the cop on the stand should be commended, and not expected.
Uh oh. When I hear these words in court my heart sinks. Because when it is a close call in a criminal case, the chances are for more likely that judge is deciding in favor of the state. My heart also sinks because it means I am going to probably appeal. It might be extra work for me that I look forward to, but it comes at the expense of my client's wallet and peace of mind.
After years of doing this work, I have trained myself to keep my cool when I lose on a motion. Especially those motions that I think are a no-brainer for my side. But in criminal cases, judges' have an inherent inclination to to credit the police and the state. It makes me angry. I can't help it. And it really makes me sick when a judge admits to this bias in writing.
Out of all the written decisions on motions I have received over the years, too many contain language like this. "To the officer's credit he admitted not observing a VTL violation". Or, "The officer deserves credit for his candor, admitting he made a mistake in his paperwork". Etc.
Why should the police be given credit for being honest? I mean, every time I read a statement by a judge imparting integrity upon the officer who testifies honestly under oath my blood boils. It is as if the judge is saying that honesty by the cop on the stand should be commended, and not expected.
Friday, December 17, 2010
Swinging the Bat
A couple years ago I had the opportunity to talk with a local Saratoga City Court judge who had recently retired. We were at a bar dinner and over cocktails, I had the pleasure of discussing legal issues with the judge that never would have occurred while he was on the bench because of my pending cases in his court. One of the topics we talked about was fighting DWI cases. I was talking about a case of mine in which I thought the evidence was very weak. When I started talking about "fighting DWI cases" by filing pre-trial motions he looked at me with eyebrow raised and said, "So you are swinging the bat?".
I've thought about his comment a lot over the years and I think it aptly describes what criminal defense lawyers actually do when they "fight" cases. Think about it this way. You have been arrested and now you have to step up to the plate in court. The District Attorney (DA) will often make you an offer, or a "pitch" if you like. The offer will be to plead guilty to a reduced charge or plead to the charge in return for a reduced sentence. At this point, the ball is in your (the defendant's) court.
If you decide to swing the bat you are fighting back and you are effectively putting the ball in to play. The game moves on. If you hit a home run, you beat the case. If you strike out, you are usually not in a worse position but the game takes longer. What usually happens is that you will probably get on base. At this point, the DA is either concerned that you might make it to home and give you what you want. Or the DA will decide it is time to forfeit the game and give you what you want.
Criminal defense is a game. It is a game I have as much passion for as American's have passion for baseball.
I've thought about his comment a lot over the years and I think it aptly describes what criminal defense lawyers actually do when they "fight" cases. Think about it this way. You have been arrested and now you have to step up to the plate in court. The District Attorney (DA) will often make you an offer, or a "pitch" if you like. The offer will be to plead guilty to a reduced charge or plead to the charge in return for a reduced sentence. At this point, the ball is in your (the defendant's) court.
If you decide to swing the bat you are fighting back and you are effectively putting the ball in to play. The game moves on. If you hit a home run, you beat the case. If you strike out, you are usually not in a worse position but the game takes longer. What usually happens is that you will probably get on base. At this point, the DA is either concerned that you might make it to home and give you what you want. Or the DA will decide it is time to forfeit the game and give you what you want.
Criminal defense is a game. It is a game I have as much passion for as American's have passion for baseball.
Saturday, December 11, 2010
New York DWI Refusal Hearings
Over the years I have represented many clients who were arrested for Driving While Intoxicated (DWI) and accused of refusing to perform a chemical test. The discussion below does not apply to the alcohol sensor test you may have been given on the roadside. Refusing to blow in the portable roadside machine is punishable only by a traffic ticket. The test I'm talking about here is the breathalyzer machine the police keep at the station that you will be asked to blow in to, after you have been arrested for DWI.
When you get a drivers license in New York, you are essentially entering in to a contract with the state. You agree to do a whole bunch of things in return for the "privilege" to drive. One of the things you agree to do is voluntarily submit to a test of your blood, breath, or urine if you are suspected of driving while intoxicated, impaired, or under the influence of drugs. The penalty for refusing to submit a sample is the revocation of your license and a $750.00 fine payable to the Department of Motor Vehicles. There are other consequences as well but those are the biggies. Whether refusing to submit is the right thing to do is always a topic of debate among DWI lawyers. I'll talk about that in a future post.
When you are arrested for DWI and a police officer concludes you are refusing to "blow", he or she will mark the case down as a "refusal". If you read your paperwork you will see it marked as such. When you show up for your first court appearance, the judge will inform you that he or she is temporarily suspending your license because you refused. Hopefully your lawyer will explain to you in advance what is going on. The clerk will come up with some paperwork for you to look over and sign. Should you decide to actually read it, it's going to take a while. One document you will be asked to sign is a "Waiver of Hearing" form. Do not sign this form and do not waive the hearing. You will not be penalized in any way by demanding a refusal hearing. While you should absolutely hire an attorney to represent you at a refusal hearing, you are not required to have one. If you can't afford an attorney the court will appoint one, or the public defender will represent you for free (if you qualify). But that attorney will only represent you in court, not at the DMV. A refusal hearing is a civil proceeding that runs separately from the court case. The hearings are usually held at the local DMV or other local non-court facility in the county where you were arrested. The hearing will usually occur within 15 days of your first appearance in front of a judge. The outcome of a refusal hearing will have no impact whatsoever on your criminal case, even if you win the refusal hearing.
If you admit to refusing and waive the hearing, your license will be revoked for a year and, you will pay a fee of $750.00 to the NY DMV. If you appear at a hearing and the DMV judge finds you are guilty of refusing, the penalty is the same as above. What is important to understand is that it is not up to you to explain your innocence at the hearing. The government must prove it's case first. That is why you need a lawyer at this hearing. An experienced DWI lawyer will know the law and be able to effectively challenge the state's case against you.
These are some of the facts the state must prove at a refusal hearing:
1. Legal Traffic Stop
A traffic stop (meaning you were actually pulled over) is "legal" as long as a police officer has a rational reason to stop you. Almost all the time, a police officer will testify that he or she observed your vehicle violating the Vehicle and Traffic Law (VTL). It is usually the police officer's word against the yours. The judge will most likely credit the police officer's testimony over yours, absent other proof the officer is lying. That is a typical scenario. If there was an accident, then there is no challenge to the traffic stop. However, people are often stopped for many other reasons. An example from a recent case of mine involved a client backing out of a parking spot at a strip mall who was stopped while backing out. The police officer stopped my client because of an informant's tip that my client was taking home "a very drunk girl". Because the arresting officer could not testify that he observed a violation of the VTL law (or any law), and the informant's tip was unreliable hearsay, the judge dismissed the refusal case.
2. Probable Cause to Arrest for DWI
Probable Cause in the context of DWI arrests basically means the police officer had a reason to suspect the driver is drunk or has been drinking recently. This is hardly ever difficult for the state to prove at a refusal hearing. In my experience contesting DWI cases, most cops know the "magic bullets" to shoot to prove they had probable cause to arrest. This is what it takes; " I smelled an odor of alcohol on Mr. DWI's breath. His eyes were glassy and bloodshot. He told me he had a "couple drinks" with dinner". At his point in the testimony I can see it in the judge's eyes, we lost. (And this is before we get to testimony about Field Sobriety Testing and Roadside Alcohol Testing) The judge is satisfied there was probable cause to arrest for DWI. Keep in mind ,the foregoing is a very cynical opinion. I always argue that the police officer did not have probable cause to arrest. And I always challenge the police officer's testimony. Once in a great while, a judge will agree with me. A good DWI lawyer knows in his heart that the scenario above should not amount to probable cause and will know how to make an argument at the refusal hearing.
3. Proper Administration of Refusal Warnings
The law says that you can't be found guilty of refusing unless you are warned of the consequences. Often, the police will not warn until after the first indication the defendant is refusing to perform a chemical test. Most of the time, a police officer will read the defendant the warnings off a little card he or she carries with him. In a refusal case the officer will mark down on the paperwork that the defendant was read these warnings and understood them. (This can be difficult to prove when the defendant does not understand English). Believe it or not, I have seen screw ups in this area. In one case an experienced sheriff's deputy confused refusal warnings with Miranda warnings. My client told me he could not recall being read refusal warnings. He did recall the "right to remain silent" (Miranda) warning but not the refusal warning. My client was telling the truth and the deputy admitted it. That refusal case was dismissed.
4. The Defendant Refused
Most of the time in refusal cases, the defendant expressly refuses verbally. But once in a while I get a case where the actual refusal is not so clear. The defendant's refusal must be persistent, meaning the defendant must have been given more than one opportunity to take the test . Once a defendant indicates that he or she will not or can not do the test, the police will administer the warning and ask again. Sometimes a defendant tries, but cannot produce enough breath to activate the machine due to physical disability. If a defendant can not physically do the test, he or she cannot be deemed to have refused. If this argument is going to made, you must have serious proof such as a doctor who would be willing to testify at the refusal hearing and ample medical records.
The foregoing is a very simple breakdown of the law regarding refusal hearings. The case law regarding refusal hearings and refusal issues in general is voluminous. To adequately protect your rights you must have an experienced DWI attorney who knows the law and case law inside and out.
When you get a drivers license in New York, you are essentially entering in to a contract with the state. You agree to do a whole bunch of things in return for the "privilege" to drive. One of the things you agree to do is voluntarily submit to a test of your blood, breath, or urine if you are suspected of driving while intoxicated, impaired, or under the influence of drugs. The penalty for refusing to submit a sample is the revocation of your license and a $750.00 fine payable to the Department of Motor Vehicles. There are other consequences as well but those are the biggies. Whether refusing to submit is the right thing to do is always a topic of debate among DWI lawyers. I'll talk about that in a future post.
When you are arrested for DWI and a police officer concludes you are refusing to "blow", he or she will mark the case down as a "refusal". If you read your paperwork you will see it marked as such. When you show up for your first court appearance, the judge will inform you that he or she is temporarily suspending your license because you refused. Hopefully your lawyer will explain to you in advance what is going on. The clerk will come up with some paperwork for you to look over and sign. Should you decide to actually read it, it's going to take a while. One document you will be asked to sign is a "Waiver of Hearing" form. Do not sign this form and do not waive the hearing. You will not be penalized in any way by demanding a refusal hearing. While you should absolutely hire an attorney to represent you at a refusal hearing, you are not required to have one. If you can't afford an attorney the court will appoint one, or the public defender will represent you for free (if you qualify). But that attorney will only represent you in court, not at the DMV. A refusal hearing is a civil proceeding that runs separately from the court case. The hearings are usually held at the local DMV or other local non-court facility in the county where you were arrested. The hearing will usually occur within 15 days of your first appearance in front of a judge. The outcome of a refusal hearing will have no impact whatsoever on your criminal case, even if you win the refusal hearing.
If you admit to refusing and waive the hearing, your license will be revoked for a year and, you will pay a fee of $750.00 to the NY DMV. If you appear at a hearing and the DMV judge finds you are guilty of refusing, the penalty is the same as above. What is important to understand is that it is not up to you to explain your innocence at the hearing. The government must prove it's case first. That is why you need a lawyer at this hearing. An experienced DWI lawyer will know the law and be able to effectively challenge the state's case against you.
These are some of the facts the state must prove at a refusal hearing:
1. Legal Traffic Stop
A traffic stop (meaning you were actually pulled over) is "legal" as long as a police officer has a rational reason to stop you. Almost all the time, a police officer will testify that he or she observed your vehicle violating the Vehicle and Traffic Law (VTL). It is usually the police officer's word against the yours. The judge will most likely credit the police officer's testimony over yours, absent other proof the officer is lying. That is a typical scenario. If there was an accident, then there is no challenge to the traffic stop. However, people are often stopped for many other reasons. An example from a recent case of mine involved a client backing out of a parking spot at a strip mall who was stopped while backing out. The police officer stopped my client because of an informant's tip that my client was taking home "a very drunk girl". Because the arresting officer could not testify that he observed a violation of the VTL law (or any law), and the informant's tip was unreliable hearsay, the judge dismissed the refusal case.
2. Probable Cause to Arrest for DWI
Probable Cause in the context of DWI arrests basically means the police officer had a reason to suspect the driver is drunk or has been drinking recently. This is hardly ever difficult for the state to prove at a refusal hearing. In my experience contesting DWI cases, most cops know the "magic bullets" to shoot to prove they had probable cause to arrest. This is what it takes; " I smelled an odor of alcohol on Mr. DWI's breath. His eyes were glassy and bloodshot. He told me he had a "couple drinks" with dinner". At his point in the testimony I can see it in the judge's eyes, we lost. (And this is before we get to testimony about Field Sobriety Testing and Roadside Alcohol Testing) The judge is satisfied there was probable cause to arrest for DWI. Keep in mind ,the foregoing is a very cynical opinion. I always argue that the police officer did not have probable cause to arrest. And I always challenge the police officer's testimony. Once in a great while, a judge will agree with me. A good DWI lawyer knows in his heart that the scenario above should not amount to probable cause and will know how to make an argument at the refusal hearing.
3. Proper Administration of Refusal Warnings
The law says that you can't be found guilty of refusing unless you are warned of the consequences. Often, the police will not warn until after the first indication the defendant is refusing to perform a chemical test. Most of the time, a police officer will read the defendant the warnings off a little card he or she carries with him. In a refusal case the officer will mark down on the paperwork that the defendant was read these warnings and understood them. (This can be difficult to prove when the defendant does not understand English). Believe it or not, I have seen screw ups in this area. In one case an experienced sheriff's deputy confused refusal warnings with Miranda warnings. My client told me he could not recall being read refusal warnings. He did recall the "right to remain silent" (Miranda) warning but not the refusal warning. My client was telling the truth and the deputy admitted it. That refusal case was dismissed.
4. The Defendant Refused
Most of the time in refusal cases, the defendant expressly refuses verbally. But once in a while I get a case where the actual refusal is not so clear. The defendant's refusal must be persistent, meaning the defendant must have been given more than one opportunity to take the test . Once a defendant indicates that he or she will not or can not do the test, the police will administer the warning and ask again. Sometimes a defendant tries, but cannot produce enough breath to activate the machine due to physical disability. If a defendant can not physically do the test, he or she cannot be deemed to have refused. If this argument is going to made, you must have serious proof such as a doctor who would be willing to testify at the refusal hearing and ample medical records.
The foregoing is a very simple breakdown of the law regarding refusal hearings. The case law regarding refusal hearings and refusal issues in general is voluminous. To adequately protect your rights you must have an experienced DWI attorney who knows the law and case law inside and out.
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