I frequently get calls from people who appeared at their first court appearance for a DWI case and had their license promptly suspended. Some of these people had no idea this would happen and neither did their attorney. Before retaining a lawyer for a DWI case it is very important to find a lawyer who not only knows criminal law, but has particular knowledge about DWI laws in New York.
The prompt suspension law, (NY VTL 1193(2)(e)(7)), requires the court to immediately suspend the driving privileges of any defendant who produced a chemical test of .08% BAC or higher at the first court appearance or arraignment. Because this measure creates drastic hardship for those who have to drive to work or school, the courts created the Hardship Privilege, which is a limited privilege to drive while a DWI case is pending. However, the Hardship Privilege is not given out just for the asking. There is a procedure the court must follow and hopefully the information below will help a defendant obtain the hardship privilege and be prepared for the first DWI court appearance.
Who is eligible for the hardship privilege? Most first time DWI defendants are eligible. Some repeat offenders are eligible as long as five years has elapsed since the date they completed the NY DMV Drinking Driver Program to the date of the new arrest.
What is the criteria to determine eligibility? To receive a Hardship Privilege the DWI defendant must be able to demonstrate to the court that the immediate license suspension will create a substantial hardship for them. Obviously, activities like getting to work, school, or the doctor that require driving are essential components of life for most people. The court will make an inquiry about alternative means of travel such as friends and family or public transportation.
How should I prepare to make the application for a Hardship Privilege? The court will not simply take your word and grant the privilege. You must come to court with some kind of evidence. Also, some courts require a written application. It is my standard practice now to draft an affidavit for my client's signature. The information in the affidavit will include my client's home address, school address, and work address. I will also include an affirmation that the client has no viable alternative means of travel. In addition, I tell my clients to bring a utility bill that indicates their home address, and a pay stub from their employer. Again, the court will want to see proof of the affirmations made in the application.
How do I make the application? I try to let the judge know as soon as I can after the case is called that I will be making the application. More experienced DWI lawyers will often request a Pringle Hearing, (I almost always do), but that is a subject for a different post. If a Pringle Hearing is conducted, the application will be made when the Pringle Hearing concludes.
Finally, after thirty days have elapsed since the arraignment, the DWI defendant can obtain a Pre-Conviction Conditional License that greatly expands the limited driving privileges contained in the Hardship Privilege.
Tuesday, July 26, 2011
Sunday, May 15, 2011
New York Traffic Tickets and Supporting Depositions
If you want to beat or fight your New York traffic ticket case (or any criminal case for that matter), the first thing you want to do is take a close look at the paperwork. In a traffic case, the paperwork generally consists of two documents, a Uniform Traffic Ticket or "UTT", (also called a Simplified Information) and a Supporting Deposition. Together, the UTT and Supporting Deposition form the Accusatory Instrument. Those two documents become married and if there is ground for a divorce, those documents become useless and the case is done.
I will use a story from a case I got yesterday to explain why Supporting Depositions and UTTs (the tickets), sometimes do not get along and why it matters.
A NYC number came up on my iphone as I was enjoying a lovely afternoon on my deck with my wife yesterday, a warm sunny Saturday here in Ballston Spa. Seeing as how I have a family to support I figured I should take the call. The client told me two things right off the bat. He was innocent and he has a Class A CDL (Commercial Driver License). Because a CDL is a valuable asset to protect he was very concerned about his driving record as he should be. He was ticketed for "failing to keep right" in violation of New York Vehicle and Traffic Law Section 1120(a). The client was difficult to understand because he had a very strong French accent, but I thought I understood him well enough to advise him about his case and he hired me. He faxed me his paperwork. (A UTT and a Supporting Deposition) I ran his record and the record wasn't very good. (That's a bummer in traffic cases because it means that getting a plea bargain will be difficult and I might have to try the case. And even though I love me a traffic ticket trial, it means much more work and no extra money unless my client is cool and understands. I charge a flat fee for traffic cases and if I have to try them, I don't charge for it.)
So my client is charged with "failing to keep right". If you read the statute, it basically says a driver shall always drive on the right side of the road with some exceptions. His UTT indicates he is charged with violating this law. The Supporting Deposition alleges he was involved in a motor vehicle accident. It doesn't say anything about observing my client, the driver, failing to keep his car on the right side of the road. Remember how I said the Supporting Deposition and UTT have to relate to each other? In this case they don't. The UTT says "failed to keep right" and the spouse says "involved in an accident". These two are not getting along. They do not agree. If the documents do not agree with each other, a lawyer can make a Motion to Dismiss and hopefully the judge will grant the motion.
The police do not always give a Supporting Deposition to you when they write your ticket. They don't have to give you one unless you ask for it. Most New York State Troopers and some municipal police give you a Supporting Deposition for any speeding case where radar is used, or a visual estimate was made. But for many other Vehicle and Traffic Law violations, they don't give you one. If you didn't get one, you should talk to a traffic lawyer before you ask for it. Sometimes there may be a good reason not to get one.
Do not attempt to try to use whatever you think you may have learned here in court. Talk to a NY traffic lawyer first. I'm not always right and you will may make matters worse if you try to represent yourself in court.
I will use a story from a case I got yesterday to explain why Supporting Depositions and UTTs (the tickets), sometimes do not get along and why it matters.
A NYC number came up on my iphone as I was enjoying a lovely afternoon on my deck with my wife yesterday, a warm sunny Saturday here in Ballston Spa. Seeing as how I have a family to support I figured I should take the call. The client told me two things right off the bat. He was innocent and he has a Class A CDL (Commercial Driver License). Because a CDL is a valuable asset to protect he was very concerned about his driving record as he should be. He was ticketed for "failing to keep right" in violation of New York Vehicle and Traffic Law Section 1120(a). The client was difficult to understand because he had a very strong French accent, but I thought I understood him well enough to advise him about his case and he hired me. He faxed me his paperwork. (A UTT and a Supporting Deposition) I ran his record and the record wasn't very good. (That's a bummer in traffic cases because it means that getting a plea bargain will be difficult and I might have to try the case. And even though I love me a traffic ticket trial, it means much more work and no extra money unless my client is cool and understands. I charge a flat fee for traffic cases and if I have to try them, I don't charge for it.)
So my client is charged with "failing to keep right". If you read the statute, it basically says a driver shall always drive on the right side of the road with some exceptions. His UTT indicates he is charged with violating this law. The Supporting Deposition alleges he was involved in a motor vehicle accident. It doesn't say anything about observing my client, the driver, failing to keep his car on the right side of the road. Remember how I said the Supporting Deposition and UTT have to relate to each other? In this case they don't. The UTT says "failed to keep right" and the spouse says "involved in an accident". These two are not getting along. They do not agree. If the documents do not agree with each other, a lawyer can make a Motion to Dismiss and hopefully the judge will grant the motion.
The police do not always give a Supporting Deposition to you when they write your ticket. They don't have to give you one unless you ask for it. Most New York State Troopers and some municipal police give you a Supporting Deposition for any speeding case where radar is used, or a visual estimate was made. But for many other Vehicle and Traffic Law violations, they don't give you one. If you didn't get one, you should talk to a traffic lawyer before you ask for it. Sometimes there may be a good reason not to get one.
Do not attempt to try to use whatever you think you may have learned here in court. Talk to a NY traffic lawyer first. I'm not always right and you will may make matters worse if you try to represent yourself in court.
Saturday, May 14, 2011
NY Marijuana Law Reform and New York City Marijuana Policy
In response to the overzealous enforcement of marijuana law in New York City, a bill has been proposed in the New York State legislature that would make the "public" possession of 25 grams or less of marijuana a violation, and not the misdemeanor it currently is. Most people caught with 25 grams or less are charged with Unlawful Possession of Marijuana. However, if you are caught smoking in public or, displaying 25 grams or less of marijuana in public, the charge becomes Criminal Possession of Marijuana 5th Degree which is a misdemeanor, and far more serious than a UPM (Unlawful Possession of Marijuana).
Most cops are pretty "cool" about UPM offenders. They take the weed and give you a ticket directing you to appear in court. Then you are free to go back to your party or meeting or wherever you are going that you want to be high for. But if you are in New York City, the cops are far less tolerant of marijuana offenders than some of the good old boys in Upstate New York. In fact, the NYPD has been intentionally violating the constitutional rights of citizens in a calculated effort to bust pot smokers. They are using dirty tricks to force people who possess less than 25 grams of pot to display it in public. And as I noted before, the public display of less than 25 grams is a misdemeanor, a crime. So instead of these folks getting an appearance ticket, they get arrested and get the full work up including mug shot, prints,and maybe jail before they see a judge.
I guess the cops in NYC are forcing people to empty their pockets on the street without good reason. And, if a person has weed and they are forced to pull it out of their pocket in public, then I guess technically they are guilty of the misdemeanor despite never having had any intention of publicly displaying their stash. The problem is that most of these folks had no legal obligation to cooperate in the first place. Even those who know their so called "rights" are no match for the cop who insists that refusal to cooperate will only make matters worse.
Do you think you know your rights with regard to police encounters? The police are forbidden by the Constitution to approach you and talk to you for no reason. There simply has to be a basis to approach and that basis must somehow have a nexus to a reasonable suspicion of criminal behavior. What I should say is that the cops are forbidden to "seize" a person with respect to the 4th amendment. So what is a seizure? A seizure can be described as any citizen encounter with law enforcement during which the citizen did not feel that he or she is free to leave. I think that aptly describes just about any citizen encounter with law enforcement. I mean really, you think you can just walk away?
With regard to the NYPD problem, there is no way they can tell someone has a bag of weed in their pocket by looking. What they are doing is targeting innocent people and shaking them down so they can arrest them. And it costs the city 75 million a year.
The bill sponsor's press release indicates that 54,000 people in New York State were arrested for marijuana possession in 2010. I don't think that number includes UPM offenders because no one is really arrested for UPM and many of those cases are dismissed. According to the release, 50,000 of NY's marijuana arrests occurred in NYC. NYC contains about 40% of the state population. Yes, I would say that something is very wrong.
Here is an abstract of the proposed legislation:
Most cops are pretty "cool" about UPM offenders. They take the weed and give you a ticket directing you to appear in court. Then you are free to go back to your party or meeting or wherever you are going that you want to be high for. But if you are in New York City, the cops are far less tolerant of marijuana offenders than some of the good old boys in Upstate New York. In fact, the NYPD has been intentionally violating the constitutional rights of citizens in a calculated effort to bust pot smokers. They are using dirty tricks to force people who possess less than 25 grams of pot to display it in public. And as I noted before, the public display of less than 25 grams is a misdemeanor, a crime. So instead of these folks getting an appearance ticket, they get arrested and get the full work up including mug shot, prints,and maybe jail before they see a judge.
I guess the cops in NYC are forcing people to empty their pockets on the street without good reason. And, if a person has weed and they are forced to pull it out of their pocket in public, then I guess technically they are guilty of the misdemeanor despite never having had any intention of publicly displaying their stash. The problem is that most of these folks had no legal obligation to cooperate in the first place. Even those who know their so called "rights" are no match for the cop who insists that refusal to cooperate will only make matters worse.
Do you think you know your rights with regard to police encounters? The police are forbidden by the Constitution to approach you and talk to you for no reason. There simply has to be a basis to approach and that basis must somehow have a nexus to a reasonable suspicion of criminal behavior. What I should say is that the cops are forbidden to "seize" a person with respect to the 4th amendment. So what is a seizure? A seizure can be described as any citizen encounter with law enforcement during which the citizen did not feel that he or she is free to leave. I think that aptly describes just about any citizen encounter with law enforcement. I mean really, you think you can just walk away?
With regard to the NYPD problem, there is no way they can tell someone has a bag of weed in their pocket by looking. What they are doing is targeting innocent people and shaking them down so they can arrest them. And it costs the city 75 million a year.
The bill sponsor's press release indicates that 54,000 people in New York State were arrested for marijuana possession in 2010. I don't think that number includes UPM offenders because no one is really arrested for UPM and many of those cases are dismissed. According to the release, 50,000 of NY's marijuana arrests occurred in NYC. NYC contains about 40% of the state population. Yes, I would say that something is very wrong.
Here is an abstract of the proposed legislation:
Bi-partisan legislation was introduced this week in Albany to address the fiscal and human costs of the meteoric rise in arrests for marijuana possession inNew York. Senate Bill 5187, introduced by Senator Mark Grisanti (R-Buffalo), and Assembly Bill 7620, introduced by Assemblyman Hakeem Jeffries (D, WFP – Brooklyn) seeks to save taxpayer dollars, protect against illegal searches, and reduce unwarranted racial disparities in arrests by clarifying the law and standardizing penalties for marijuana possession offenses.
In 2010, over 54,000 people were arrested in NY for possessing small amounts of marijuana – over 50,000 of those arrests occurred in New York City alone. A major study released in March by the Drug Policy Alliance found that each arrest for simple marijuana possession, conservatively estimated, costs between $1,000 – $2,000 – thus New York taxpayers are spending about $75 million every year on arresting people for possessing small amounts of marijuana.
What many New Yorkers don’t know is that the state decriminalized marijuana possession over thirty years ago – making private possession of 25 grams or less of marijuana (about 7/8 of an ounce) a violation punishable by a $100 fine; possession of any amount in view of the public was made a misdemeanor. In passing theMarihuana Reform Act of 1977 –then co-sponsored by a Republican State Senator and a Democratic State Assemblyman – the Legislature made an explicit finding that became part of the new law: “Arrests, criminal prosecutions and criminal penalties are inappropriate for people who possess small quantities of marihuana (sic) for personal use. Every year, this process needlessly scars thousands of lives and waste millions of dollars in law enforcement resources, while detracting from the prosecution of serious crime.” This provision of the law was never changed.
Today, arrests for possession of small amounts of marijuana are skyrocketing in New York. In New York City, marijuana possession is the number one arrest, comprising 15 percent of all arrests in that city. A growing body of research and recent news reports demonstrate that most of these arrests are the result of illegal frisks and searches.
State Senator Mark Grisanti, sponsor of the legislation in the Senate, said, “With New York in serious fiscal crisis, we simply cannot afford to arrest tens of thousands of otherwise law-abiding citizens for possessing small amounts of marijuana – especially when so many of these arrests are the result of illegal searches or mis-charging. Furthermore, the unwarranted racial disparities associated with these arrests are unacceptable. This legislation strikes the right balance by discouraging and punishing possession and use of marijuana while promoting smarter, more effective use of our limited fiscal resources.”
Assemblyman Hakeem Jeffries, sponsor of the legislation in the Assembly, said, “This legislation is an additional step toward a more equitable criminal justice system that treats everyone the same regardless of race or socioeconomic status. During these difficult economic times, our increasingly scarce law enforcement resources should be used in the most efficient manner possible. It is therefore important that the legislature promptly act to address the explosion of improper marijuana arrests.”
A major two-part story by National Public Radio-affiliate WNYC (April 26 and 27, 2011) further confirmed research findings that most people arrested for possessing small amounts of marijuana were either mischarged – charged with a crime they did not commit – and/or illegally searched. Often in the course of a stop-and-frisk encounter, if the police find marijuana in a pocket or bag, they nonetheless arrest and charge the individual with possessing marijuana in public view – a misdemeanor. Many others are compelled by the police to reveal the marijuana in their bag or pocket; the police ask them to “empty out your pockets” or “empty out your bag.” Many people comply with the officer’s request, even though they are not legally required to do so. Once in “public view,” the marijuana possession becomes a misdemeanor – a criminal offense – and then the person is arrested and charged for this offense. The NYPD makes nearly a thousand arrests and jailings a week for simple marijuana possession – one of every seven arrests in NYC is for marijuana possession.
Statewide, nearly 70% of those arrested for possessing small amounts of marijuana are of young people aged 16-29. Nearly 84% of all those arrested are black and Latino, even though studies show that young whites use marijuana at higher rates. Studies by Dr. Harry Levine of Queens College show that among cities and counties in the U.S., Buffalo, Syracuse and New York City rank among the highest in terms of racial disparities associated with arrests for possessing small amounts of marijuana.
“The consequences of an arrest are severe, especially for young people of color who are already disproportionally arrested and incarcerated,” said Kyung Ji Rhee, Director of the Institute for Juvenile Justice Reform and Alternatives. “Young people of color are targeted, illegally searched and being put through the criminal justice system for possessing marijuana. Whatever your opinion may be on marijuana, this is no way to treat or teach young people about the choices they make.”
The April 2011 WNYC story highlighted the extent to which illegal searches lead to these arrests – noting that in the Bronx alone, the District Attorney throws out 10 – 15 cases every day because the police illegally searched and mischarged a person for marijuana possession in public view, when in fact the person possessed marijuana in their pocket or bag.
“I shouldn’t have to feel like a criminal when I walk down the street in my neighborhood,” said Alfredo Carrassquillo, a Community Organizer with VOCAL-NY. “It feels like the police aren’t there to protect the community when they stop, frisk and illegally search people like me just because we’re going home or hanging out in the park. I’ve spent the night in jail multiple times for having a small amount of weed in my pocket because police have used a loophole in the law to arrest me — charging me with marijuana in public view — even though I was never using marijuana in public. We should be spending money on summer youth employment, after school programs, and jobs for people coming home from prison, not illegal arrests.”
Under the reform legislation introduced by Senator Grisanti and Assemblyman Jeffries, possession and use of any amount of marijuana would remain illegal. The reform standardizes penalties for possession of 25 grams or less of marijuana in private or public – violators would be subject to a fine, while multiple violations could lead to a jail sentence.
“These arrests have become a “head start” program into the criminal justice system for young people, especially young black and Latino men,” said Gabriel Sayegh, NY State Director of the Drug Policy Alliance. “Senator Grisanti and Assemblyman Jeffries should be commended for their leadership. Democrat or Republican, upstate or downstate – reasonable people know we cannot afford to spend tens of millions of dollars every year to illegally search, arrest and jail people for possessing small amounts of marijuana, especially when those people can instead be ticketed and fined. There are clearly much more effective ways to spend our limited resources to realize public health and safety.”
Thursday, May 5, 2011
New York DWI Refusal Hearings: What if the cop doesn't show?
Another rant against the tyranny of drunk driving laws.
If the cop that arrested you for DWI doesn't show up for the first scheduled New York DMV Refusal Hearing the judge will adjourn it. That means it gets re-scheduled and very often, months will go by before the next hearing. The judge will not dismiss the refusal case because the cop did not show, period. (Although, I know that some judges wish they could dismiss the case because the law is fundamentally unfair and unconstitutional, despite what the NY Court of Appeals says).
Why should anyone really care about this? After all, aren't we keeping drunks off the road and making the world safer for our children? The answer is a resounding NO! I would love to explain why now but I am trying to stay focused here.
Here is a story about a dude named Dale F. Gray. I don't know anything about his case other than he allegedly refused to do a breath test. So of course, he faced a hearing at the DMV to decide if his license should be revoked. Well Dale hired himself some smart mouthed attorneys who actually cared about Dale's constitutional rights. (A good quality in a lawyer). I guess back in the day, the practice was to dismiss refusal cases if the cop didn't show. But that all changed back in 1988 thanks to Dale and his lawyers. Dale's refusal hearing was adjourned because the cop didn't show. Then the cop didn't show again and the judge did something that made Dale's lawyers mad. The judge revoked Dale's license because he used the no show cop's report as evidence to support the refusal charge. Dale's lawyers thought the judge had no right to do this because they never got a chance to question the cop. You can't talk to a piece of paper right? Without getting in to the 5th amendment and stuff just think about this; A cop can write down whatever he wants to. Oh, but a cop would never lie or make stuff up right?
Well Dale's case made it all the way up to the Court of Appeals. He won the first round of appeal, but lost at the top. I've read the case a couple of times and it really brings me down. The opinion totally disregards the constitutional problem with what the Judge in Dale's case did. It cleverly supports its holding with some crafty and clever gobboly gook. I should note however that former Chief Justice Kaye's decent hits the nail on the head which makes me feel a little better. Matter of Gray v. Adduci 73 N.Y.2d 741 (1988)
The truth is that cops could care less about showing up at refusal hearings. They just don't care. That's because they know the poor bum they arrested will probably lose anyway if they don't show. Because of Gray, it's perfectly fine for the judge to rely solely on the paperwork when making a decision. Unless a cop can rake in some overtime by showing up for a hearing, there is good chance he will blow it off. Plus, what cop do you think wants to be questioned by some smart mouthed defense attorney if he doesn't have to be. I also have a sneaking suspicion that the practice of not showing up is sometimes encourage by prosecutors who don't want the pain in the ass defense attorney gathering a little pre-trial discovery.
Finally, and as noted in Gray, the defendant has the right to subpoena a cop for a refusal hearing. So if you really want the cop to show you can subpoena him. This may or may not be a wise decision depending on your specific case. And if the cop doesn't respond to the subpoena, you can still lose.
If the cop that arrested you for DWI doesn't show up for the first scheduled New York DMV Refusal Hearing the judge will adjourn it. That means it gets re-scheduled and very often, months will go by before the next hearing. The judge will not dismiss the refusal case because the cop did not show, period. (Although, I know that some judges wish they could dismiss the case because the law is fundamentally unfair and unconstitutional, despite what the NY Court of Appeals says).
Why should anyone really care about this? After all, aren't we keeping drunks off the road and making the world safer for our children? The answer is a resounding NO! I would love to explain why now but I am trying to stay focused here.
Here is a story about a dude named Dale F. Gray. I don't know anything about his case other than he allegedly refused to do a breath test. So of course, he faced a hearing at the DMV to decide if his license should be revoked. Well Dale hired himself some smart mouthed attorneys who actually cared about Dale's constitutional rights. (A good quality in a lawyer). I guess back in the day, the practice was to dismiss refusal cases if the cop didn't show. But that all changed back in 1988 thanks to Dale and his lawyers. Dale's refusal hearing was adjourned because the cop didn't show. Then the cop didn't show again and the judge did something that made Dale's lawyers mad. The judge revoked Dale's license because he used the no show cop's report as evidence to support the refusal charge. Dale's lawyers thought the judge had no right to do this because they never got a chance to question the cop. You can't talk to a piece of paper right? Without getting in to the 5th amendment and stuff just think about this; A cop can write down whatever he wants to. Oh, but a cop would never lie or make stuff up right?
Well Dale's case made it all the way up to the Court of Appeals. He won the first round of appeal, but lost at the top. I've read the case a couple of times and it really brings me down. The opinion totally disregards the constitutional problem with what the Judge in Dale's case did. It cleverly supports its holding with some crafty and clever gobboly gook. I should note however that former Chief Justice Kaye's decent hits the nail on the head which makes me feel a little better. Matter of Gray v. Adduci 73 N.Y.2d 741 (1988)
The truth is that cops could care less about showing up at refusal hearings. They just don't care. That's because they know the poor bum they arrested will probably lose anyway if they don't show. Because of Gray, it's perfectly fine for the judge to rely solely on the paperwork when making a decision. Unless a cop can rake in some overtime by showing up for a hearing, there is good chance he will blow it off. Plus, what cop do you think wants to be questioned by some smart mouthed defense attorney if he doesn't have to be. I also have a sneaking suspicion that the practice of not showing up is sometimes encourage by prosecutors who don't want the pain in the ass defense attorney gathering a little pre-trial discovery.
Finally, and as noted in Gray, the defendant has the right to subpoena a cop for a refusal hearing. So if you really want the cop to show you can subpoena him. This may or may not be a wise decision depending on your specific case. And if the cop doesn't respond to the subpoena, you can still lose.
Thursday, April 14, 2011
Arrested for DWI? Want some advice? Here's some from the cops themselves.
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.
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.
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