This video was obtained by the Albany Times Union. The guy handcuffed to the bench is police officer Brian Lutz. Officer Lutz was apparently discovered sleeping in his vehicle on the side of the highway, door open, with a pile of puke next to the door. After failing the Field Sobriety Tests and blowing a .21 on a Preliminary Breath Test device, he was arrested. During the booking, he gets a visit from fellow Albany Police Officer Batchelor and Christian Mesely, the president of the Albany Police Union. Mesley tells Lutz not to blow (per the advice of an attorney) because his BAC was previously registered (on a very unreliable device) at .21 which would result in a charge of "Aggravated DWI" if his BAC was .18 or over.
Here is the link to the story and video:
http://www.timesunion.com/local/article/Video-Police-union-reps-coached-cop-during-DWI-1335890.php#media-2
As a DWI lawyer, people constantly ask me what I would do if I was arrested for DWI. Would I blow? Of course, there is no simple answer. Every DWI arrest is so exceptionally unique and the facts and circumstances vary so wildly that there is not a one size fits all answer. I will say this. First of all, I never drive in an intoxicated state or even an impaired stated but I would be lying if I said I did not "drink and drive" sometimes. That means that if I was pulled over after having "a couple", and I tell a cop that "yes, I had a couple", I will probably be arrested. If it happened to me I think I would refuse to blow for the reasons below: (Frankly, I would never admit to consuming alcohol if I was pulled over. Never, ever, ever).
First, I think most people are coerced in to handing over potentially incriminating evidence to the state (via blood to breath to machine) because they are led to believe their license will be "immediately" suspended by the arresting officer who reads the DWI refusal warnings to the suspect that say as much. That warning is a lie. The suspension is not immediate. The cops can't suspend your a license, only a judge can do that and most people, after arrested for DWI are released and issued an appearance ticket returnable to a court a few days after the arrest. So your license is not toast until you get in front of the judge. In a refusal case, the judge will suspend your license until a hearing is held at the DMV which must be conducted within 15 days, or you get your license back. Even if you lose the refusal hearing, you can still get a conditional license as long as you have not done the DMV drinking driver program within 5 years from the date of completion to the date of the new violation, or you do not have a VTL 1192 violation in the past five years. So in my situtation, because the arrest would be my first offense and I have never done the drinking driver program, I will be eligible for a conditional license, even if I refuse. Which basically puts me in the same position I would be had I done the chemical test. And in the meantime, I'll get myself a skilled DWI lawyer to punch some holes in the case. There is no such thing as a perfect DWI case and good lawyers can tear some cases to shreds.
In the Brian Lutz case, Officer Lutz performed the Field Sobrierty Tests and allegedly failed. He also did a preliminary breath test which showed .21%. I am always shocked that cops arrested for DWI cooperate to the extent that Officer Lutz did. He must know that a suspect has a consitutional right to keep their mouth shut, refuse to "walk the line", and refuse to blow on a roadside testing device. Maybe he was not aware or maybe he was just hoping the arresting officer would cut him loose when he cooperated. People, as American citizens you have an absolute right not to incriminate yourself. It is your right and protecting it is supposedly what our kids are losing legs for overseas. If you think cooperating puts you in a better position you are sadly mis-informed.
Finally, I am not going to finish this post with the admonition to never have a drink and drive. I think some DWI lawyers say that to make themselves feel better or for liability issues. But after doing this work for sometime, I am more concerned about the people who legally drink and drive and fall prey to the increasingly overzealous enforcement of DWI laws. Whether you like it or not, drinking and driving is not a crime. And I know that sounds cliche but the truth is that drinking and driving can only be a crime when the drinking driver has lost his physical capabilities to safely operate a car, (Or a boat or even a bike in some places. Or a motorized cooler, or lawn mower for that matter),or the driver has a BAC in excess of .08. In a refusal case, all the people have is circumstanial evidence that the defendant was drunk based on the officer's observations. If you pick the right jury, they can see through all the BS.
Showing posts with label Albany DWI Lawyer. Show all posts
Showing posts with label Albany DWI Lawyer. Show all posts
Thursday, April 14, 2011
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.
Thursday, November 27, 2008
Need a criminal lawyer? Read this.
http://www.scribd.com/doc/6123526/The-Truth-About-Hiring-a-Criminal-Defense-Lawyer/
I love this guy. When I was starting out as a criminal defense attorney I spent most of my time seeking out and learning from the best practitioners out there. Brian Tannebaum knows what he is talking about in this e-book.
I love this guy. When I was starting out as a criminal defense attorney I spent most of my time seeking out and learning from the best practitioners out there. Brian Tannebaum knows what he is talking about in this e-book.
Friday, October 3, 2008
Aggravated DWI
http://timesunion.com/AspStories/story.asp?storyID=726002&TextPage=1
The Albany Times Union reported today that a 25 year-old woman from Cohoes was sentenced to 2-6 years in prison under New York's Aggravated DWI statute. There has to be more to the story because the statute, NY V&T Law 1193(2)(b)(2) says a conviction for Aggravated DWI is a misdemeanor punishable by only up to 1 year in jail. (Any misdemeanor by definition is only punishable by up to one year in jail). Given the fact that the woman was allegedly intoxicated, and apparently seriously injured two pedestrians, she was probably charged with vehicular assault, which is a felony.
The new crime of Aggravated DWI was created by the Legislature and enacted in 2006. If you produce a chemical test that is .18% or above, you can be charged with Aggravated DWI. The TU story says the woman refused "alcohol" tests. The story does not mention a BAC level which leads me to believe she refused to perform the chemical test. So I don't understand how she could have been prosecuted for Aggravated DWI without a valid chemical test in excess of .18%.
I had a client charged with Aggravated DWI recently. She blew a .18%, but the BAC Datamaster was having some problems the night she was arrested. The machine basically malfunctioned twice before my client blew a "valid sample." So we decided to fight her case. The fact that there was more than a reasonable doubt that the breath testing device was not working right made it difficult to prosecute my client under the Aggravated DWI Statute. How can you prosecute a crime that relies on an accurate BAC test when there is obviously problems with the machine? A jury could have easily been persuaded. There were also other problems with the case but I'll blog about those later.
Had I believed my client could have faced 2-6 years in prison were she convicted of Aggravated DWI, I would have negotiated a plea bargain. (especially because this girl had two fairly recent DWAIs on her record). Her case was eventually entirely dismissed by the court.
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