New York Criminal Lawyer Blog

As a New York criminal defense attorney and former Manhattan prosecutor I have represented and prosecuted a significant amount of people for DWI / DUI crimes including Vehicle and Traffic Law (VTL) sections §1192.3, §1192.2 and §1192.1. On occasion, an accused asserts that they in fact were not "driving" the vehicle and, therefore, are not guilty of these offenses. While there may be merit to such a defense, where do courts stand on this issue not as a defense at trial, but as it relates to probable cause for the police to make the initial arrest? In other words, if you were merely warming up in the vehicle with the engine running, but not moving or "operating" it otherwise, would the police have probable cause to arrest you once they approached your vehicle, smelled the alcohol, etc.? While each case requires its own unique analysis, a Suffolk County District Court (a similar level court to a New York City Criminal Court that handles misdemeanors), recently addressed this issue.

In People v. Ciccone, 2008SU50102, the accused was charged with Operating a Motor Vehicle Under the Influence of Alcohol or Drugs in violation of New York State VTL §1192.3. In that case, the police officer observed the defendant's vehicle on the shoulder of the road. When he approached, the officer observed the defendant sleeping in the driver's side with the engine running. Knocking on the window, the officer smelled alcohol on the defendant's breath once the window was lowered and the defendant woke up. After that, the officer observed numerous other signs of the accused's alleged intoxication and ultimately arrested him.

Although there were other alleged offenses and issues raised, the defendant's attorney challenged the police officer's probable cause to arrest his client based on his position that his client was not "operating" the vehicle. Despite his contentions and legal arguments, the court disagreed.

Continue reading for the court's decision and analysis...

Continue reading "Driving While Intoxicated in New York (DWI & DUI): Probable Cause to Arrest for VTL 1192 When the Vehicle is Not in Motion" »

Make no mistake. New York DWI / DUI laws have just gotten significantly harsher. In fact, pursuant to New York Vehicle and Traffic Law (VTL) section 1192.2-a(b) / 1192(2a)(b), otherwise know as Leandra's Law, a misdemeanor Driving While Intoxicated is "bumped up" to a felony offense if you perpetrate the "drunk driving" crimes of VTL 1192.2, VTL 1192.3, VTL 1192.4 or VTL 1192.4(a) and a child 15 years old or younger is in that vehicle.

More specifically, one can be charged with felony DWI / DUI pursuant to VTL 1192.2-a(b) / VTL 1192(2a)(b) when that person either has a BAC of .08 or greater, is intoxicated due to drug or alcohol ingestion or is "common law" DWI. Although often more difficult to prove due to the lack of scientific evidence, "common law" DWI refers to cases where an individual does not give a reading or sample of breath, urine or blood, but the police articulate the individual's intoxication due to certain characteristics such as unsteadiness on one's feet, slurred speech, the smell of alcohol, and watery-blood shot eyes, etc.

Leandra's Law allows for a sentence of up to 1 and 1/3 to 4 years in state prison as well as fines ranging between $1,000 to $5,000. Other potential sentences include probation, community service, a drunk driving program and obviously restitution in the event damage is done to another's property.

Before Leandra's Law was available to the prosecution, prosecutors often charged individuals who drove drunk with children in their car with misdemeanor DWI along with misdemeanor Endangering the Welfare of a Child and either felony or misdemeanor Reckless Endangerment if applicable. Endangering the Welfare of a Child as well as misdemeanor Reckless Endangerment is punishable by up to one year in jail while felony Reckless Endangerment is punishable by up to 2 and 1/3 to 7 years in prison. It is important to note that these crimes can still be charged along with VTL 1192.2-a(b) / VTL 1192(2a)(b).

Crotty Saland, LLP is a New York criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland, LLP represents clients throughout the New York City region.

While you shouldn't need a NY criminal defense attorney to tell you it is a bad idea to get behind the wheel of a vehicle in New York State (or any state for that matter) after having consumed alcohol, Crotty Saland, LLP has provided our readers with a tool that can assist them in understanding how much alcohol one must consume before one is legally intoxicated. In New York, that legal level to sustain a conviction for Driving While Intoxicated (DWI /DUI) is .08. However, even if one's BAC is not recorded, courts can still find one guilty under the "Common Law" DWI / DUI statute that is satisfied through observations of drunkenness on the part of a police officer.

The tool linked on our DWI / DUI web page, should not be used as a means to guide you as you are drinking to ascertain whether you are "ok" to drive. There are too many factors that need to be taken into consideration and in no way will this calculator give you an exact determination of your BAC. Under no circumstance should it be relied on for that purpose. Instead, the calculator is a means to get a general understanding of the relationship between your weight, type of alcohol, amount of alcohol and time of consumption on your BAC.

For more information on the criminal law in New York as it relates to DWI / DUI offenses, read the New York DWI criminal law blog and contact an NY criminal defense attorney.

Crotty Saland, LLP is New York based criminal defense firm representing clients in all criminal matters including DWI / DUI. Former Manhattan prosecutors, the attorneys at Crotty Saland, LLP represent clients throughout the New York City region.

The NYS Senate, Assembly and Governor have all agreed. If you perpetrate the misdemeanor crime of DWI / DUI in New York and there is a child in the vehicle who is 15 years old or younger, then the crime will be "bumped up'' to an "E" felony punishable by up to 1 and 1/3 to 4 years in state prison for a first time offender. Prior to this change, one could be charged with misdemeanor VTL 1192.2, VTL 1192.3 and 1192.4 (New York's DWI / DUI statutes) as well as the misdemeanor Endangering the Welfare of a Child in the event one drove drunk with a child in the car (certainly, other charges might be applicable as well). From the NYS Senate press release:

"Under Leandra’s Law, driving impaired or with at least a blood alcohol level of .08 with a child passenger age 15 and under, is a Class E felony – for both first-time and repeat offenders. The offense carries a sentence of one to four years in state prison, a fine of $1000 to $5000, and the issuance of a mandatory ignition interlock device."

"The measure mandates that ignition interlock devices are to be standard sentencing on all DWI-related offenses, mirroring legislation already passed in the Senate earlier this year."

"In the event of serious physical injury or death to a child, Leandra’s Law increases penalties. In instances of injury to a child, the driver would be charged with a Class D felony and face a state prison sentence of one to seven years. If reckless driving is a contributing factor, the charge would be a Class C felony and carry a maximum prison sentence of 15 years."

"If the driver causes the death of a child, the charge would be a Class C felony and carry a maximum sentence of 15 years in prison. If reckless driving is a contributing factor, the driver would be charged with a Class B felony and faces a prison sentence of up to 25 years."

UPDATE: LEANDRA'S LAW - VTL 1192.2a(b) - Further Defined

According to reports, "Leandra's Law" is coming closer to reality. The New York State Assembly agreed on their version of the bill that will raise Driving While Intoxicated / DWI (1192.2 and 1192.3) to a felony offense in the event that a child under the age of 15 is a passenger in the vehicle. It is not clear if the felony will be applicable on DWI / DUI crimes involving drug use or merely alcohol. Both the New York State Senate and the Assembly have to agree on their respective bills before Governor Patterson signs the bill into law. We will keep our readers informed.

Crotty Saland, LLP is a criminal defense firm founded by former Manhattan prosecutors. Follow our legal updates online at NewYorkCriminalLawyerBlog.Com and on Twitter.

Many New York criminal defense attorneys have handled cases with unique, if not “funny” sets of facts. While no criminal accusation is a laughing matter, criminal defense attorneys always have to be ready to handle situations that fall outside every day parameters. In the context of Driving While Intoxicated (DWI) pursuant to Vehicle and Traffic Law section 1192.3, one criminal defense lawyer and the court were confronted with such a situation. In that case, People v. Krivak, a Rockland County, New York Village Justice addressed the following issue: Is one’s inability to urinate for the purpose of submitting to a chemical test a legal “refusal.”

Briefly, and by way of background, New York permits the prosecution of individuals who are deemed to be driving while intoxicated even if their BAC is not recorded. This offense is often referred to as “Common Law DWI” and is found in the Vehicle and Traffic Law under section 1192.3 Police and prosecutors establish this crime by asserting that the accused had certain characteristics such as watery and blood-shot eyes, the smell of alcohol, slurred speech and unsteadiness on their feet. If a person refuses to take a chemical test to ascertain if and the amount of alcohol in their system, their failure to do so may legally be construed as a refusal. This refusal can then be used at a trial as evidence of the defendant’s guilt.

Now for the issue addressed above…

According to the court, the police gave Mr. Krivak clear and proper refusal warnings after he was arrested on suspicion of DWI. After such warnings were given and he was asked to provide a urine sample, Mr. Krivak failed to urinate despite being given ample water. Although not an express refusal to provide a sample, Mr. Krivak contended he was unable to urinate. The court viewed Mr. Krivak’s failure as “deemed” refusal to submit to a chemical test.

In finding that Mr. Krivak’s refusal was no different than an express refusal, the court compared the actions of Mr. Krivak’s to other cases. For example, in People v. Bratcher, 165 A.D.2d 906(3rd Dept. 1990), a defendant was found to have refused to use the intoxilizer after giving an insufficient “blow.” But it was not the case law that the court relied on to make its determination that the defendant’s failure to void his bladder was in fact a refusal for the purpose of the Vehicle and Traffic Law. If the defendant had informed the police as to the reasons why he was unable to urinate or provided medical evidence at a hearing for that same purpose, the court may have concluded differently.

Crotty Saland, LLP is a New York criminal defense law firm founded by two former Manhattan prosecutors who served under Robert Morgenthau. Our criminal defense blog is updated at least once every four days and our readers can follow us on Twitter at DefenseLawyerNY.

The Queens County District Attorney's Office has announced the arrest of a bus driver charged with DWAI (VTL 1192.1), Reckless Endangerment (NY Penal Law 120.20) and Attempted Endangering the Welfare of a Child (NY Penal Law 110/260.10) after an assistant principal at the school allegedly noticed the smell of alcohol on the bus driver's breath. It is further alleged that the bus driver, Lakhram Omwathatth, was unsteady on his feet and had watery-bloodshot eyes. Making matters significantly worse and compounding an already terrible situation, it is alleged that five students were on the bus waiting to be driven from school. That being said, it appears that Mr. Omwathatth had driven the bus to school without the students and was arrested prior to leaving with them. Mr. Omwathatth blew a .037 on the intoxilyzer, well below the legal limit. He is further alleged to have stated that he consumed Nyquil and a "non-alcoholic Dr. Pepper."

I don't think that anyone could disagree with District Attorney Richard Brown's statement regarding the importance of protecting children. DWI is one of the most serious crimes with horrific consequences to innocent victims. Moreover, DWI is a preventable crime with some common sense and responsibility. However, regardless of how horrendous the situation may be, i.e, the presence of children in a school bus, the prosecution still has the legal burden of proving a case beyond a reasonable doubt. In this particular case, I believe the prosecution has stretched to find an applicable "A" misdemeanor to charge the defendant with.

Before going into the brief analysis, it is important to note that VTL 1192.1 is not a crime, but a traffic infraction. A conviction of this offense will result in a fine and potentially a couple weeks in jail at worst (very rare), but no criminal record. Moreover, 110/260.10, Attempted Endangering the Welfare of a Child, is a "B" misdemeanor punishable by up to 90 days in jail. Clearly, and understandably, because this case involves children both directly and indirectly, the prosecution wanted a larger hammer. Therefore, Reckless Endangerment (NY Penal Law 120.20), a class "A" misdemeanor punishable by up to 1 year in jail, is that hammer.

Read more after the jump...

Continue reading "Bus Driver Arrested in Queens with Kids on Bus: Charged with Reckless Endangerment & DWAI" »

Crotty Saland, LLP, a top New York criminal defense firm based in Manhattan, is pleased to announce that once again one of our criminal defense attorneys has been sought out for his perspective and expertise regarding a current legal matter. Over the past year, our criminal defense lawyers have been featured on the CBS Evening News, Sports Illustrated Online, New Jersey Times-Ledger, AM-NY, Vault.Com and Associated Press. Jeremy Saland, one of our criminal defense lawyers and a former Manhattan prosecutor, commented on the devastating and horribly sad incident involving Diane Schuler. Specifically, the Associated Press questioned why the family now challenges the medical examiner's findings that Mrs. Schuler had a significant amount of alcohol and some drugs in her system. As most of the public is aware, Mrs. Schuler's alleged drunk driving along New York's Taconic State Parkway resulted in the death of her child, her nieces and three men in another vehicle.

Mr. Saland explained that it was highly unlikely any criminal charges would be brought against Mrs. Schuler's husband. Yet, it is likely that the family is challenging the findings by the medical examiner for two main reasons. The first may stem from their concerns that Mrs. Schuler's estate and assets may be subject to damages on a civil suit in the event one is commenced. Although insurance may cover those damages, if the family can dispute the findings of the medical examiner and establish that the accident was the result of an unknown medical condition, for example, the family may be able to defend against a potential law suit. Moreover, the family also would like to clear their name and dispute the findings that Mrs. Schuler callously killed her daughter, nieces and three other men while driving drunk.

Regardless of the outcome, this incident is one of the saddest stories in recent history and a wake up call to anyone who would consider getting behind the wheel of a car while intoxicated.

It comes in different shapes and sizes - DWI (Driving While Intoxicated), DWAI (Driving While Ability Impaired) and DUI (Driving Under the Influence) - but regardless of the particular offense in New York (both NYC and Westchester), prosecutors and judges take these charges very seriously. As a former Manhattan prosecutor and as a criminal defense attorney at Crotty Saland, LLP, I have handled countless DWIs, DWAIs and DUIs whether they are charged as VTL 1192.1, VTL 1192.2, VTL 1192.2-a or VTL 1192.3. One particular question that I have heard asked in various forms is "how can I be charged with DWI if there is no breathalyzer or intoxilizer that indicates how much alcohol I had in my system?" The answer to this question is quite simple. As we call it in the criminal law field, a DWI without a chemical test result and one based on an officer's observation is "Common Law" DWI.

Unlike VTL 1192.2 which requires a reading of alcohol in a person's blood to be .08 of one per centum or more, a person is guilty of Driving While Intoxicated pursuant to "Common Law" VTL 1192.3 if they operate a motor vehicle while in an intoxicated condition. Well, if there is no reading or analysis, what does law enforcement hang it's hat on to establish this crime? Very often the police cite certain characteristics of the accused across the board. The officers claim that that the accused had "water bloodshot eyes," "slurred speech," "the smell of alcohol on their breath," and they were "unsteady." Maybe the police allege that a person was asleep at the wheel, was driving erratically, or even threw up on themselves. One of the easiest ways they establish your lack of sobriety is based on the boneheaded mistake that people of all walks of life make when confronted by the police regardless of the accusation. That is, they make an admission. Something as simple as "I only had a few (or couple) of beers." Well, if you didn't present any of the characteristics mentioned above, but you stated you had a couple of beers, you probably just bought yourself a trip to the precinct and ultimately before a judge.

As I always state, DWI is a serious and terrible offense. The lives of many innocent people are put in harm's way if one gets behind the wheel intoxicated. That being said, an accusation or an arrest is not evidence of guilt. It could be that you did have two beers, but you are 6'4 230 pounds. Maybe you did have bloodshot eyes because you had not changed your contact lenses for a day or you were in a room full of cigarette smokers. Are these excuses? No, and in fact may be legitimate reasons why a wrongful conclusion was made that you were driving drunk.

Whatever the set of facts, fighting a DWI with counsel that is not experienced in criminal law and DWIs in particular can and often does compound a bad situation. If you are accused of any crime, contact the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP. We are ready and able to pursue any legal and ethical avenue to protect your liberty, integrity and rights.

With Memorial Day Weekend upon us, many people unfortunately make the mistake of drinking and driving in New York State and NYC. As a NY criminal defense attorney and former Manhattan prosecutor at Crotty Saland, LLP, I have defended and prosecuted individuals charged with Driving While Intoxicated (DWI). I can tell you that law enforcement and the courts vigorously prosecute DWIs regardless of whether it is your first time. Make no mistake, a DWI is a very serious crime that can have horrific results and that fact is not lost on prosecutors or the courts. That being said, no matter what crime you are accused of, even DWI, the police must still act within the confines of the law. Your rights should not and cannot be violated no matter the circumstances.

In the May 8, 2009 Queens Criminal Court decision of People v. Steven H. Noreiga, 2008QN001052, a NY criminal defense lawyer did his best to protect his client's rights after he was arrested and charged with DWI. In that matter, the defendant made an illegal u-turn. Upon stopping the defendant, the officer noticed the strong odor of alcohol on the defendant's breath. Shortly thereafter, the defendant was asked to take a breathalyzer at the scene where he "blew" a .188. The police officer then drove the car and parked it near the precinct while the passengers who were in the vehicle went there as well. A while later, and after determining that the defendant was not the owner of the vehicle, the officer went to secure the vehicle. At that point he noticed six 12 ounce bottles of Corona beer. Four of these bottles were opened with varying amounts of alcohol inside. During motion practice, the defendant's attorney challenged the probable cause to arrest the defendant, the breathalyzer result at the precinct, as well as the recovery of the bottles of beer.

The court decision after the jump (be prepared, its long...)

Continue reading "NY Criminal Defense and Driving While Intoxicated (DWI) in NYC" »

In a report recently released by the New York State Division of Criminal Justice Services, nearly 96 percent of all Driving While Intoxicated (DWI) arrests in New York over the past three years resulted in a conviction. With this type of conviction rate it is clearly imperative that you retain experienced and skilled criminal defense attorneys who know how to handle DWI and DUI crimes. The criminal defense lawyers at Crotty Saland, LLP, are former Manhattan prosecutors who served under Robert Morgenthau and have prosecuted as well as defended these matters.

Having experienced criminal counsel is crucial because last year In New York City alone the police made approximately 10,000 DWI arrests. According to the report, DWI convictions in Manhattan were the worst throughout the city with "only" a 75 percent conviction rate. Although jail time is permitted by law, a fraction of those individuals convicted of DWI or DUI served any jail time.

Regardless of what the statistics tell us, we at Crotty Saland, LLP know that the last thing anyone accused of a crime wants to be is a statistic especially if they end up with a criminal record or a jail sentence. That is why we are available day or night to answer your questions, assess your case and to do our best to protect your rights, liberty and integrity.

Throughout NY, law enforcement is gearing up for the holiday season and the unfortunate reality that many people will be driving drunk. Make no mistake, police, prosecutors and judges rightfully take DWI (Driving While Intoxicated) crimes very seriously. That being said, law enforcement must act within the bounds of the law in investigating and prosecuting these crimes. Obviously, making sure that law enforcement adheres to the “rule of law” is imperative to the criminal defense attorneys at Crotty Saland, LLP, because we know that the mere allegation of DWI, even if it is completely incorrect, has life altering consequences.

Recently, in People v. Shannon Sharp, 2008I001925, a criminal court judge suppressed the blood test results of a defendant charged with DWI. In that case, 2.5 hours after the defendant was initially arrested, the defendant agreed to submit to a blood test after the police officer “told that her [that her] driver license would be immediately suspended and subsequently revoked if she did not consent to a blood test, and that ‘refusal to submit to a test or portion thereof, can be introduced against [her] at any trial proceeding or hearing resulting from the arrest.’"

In suppressing the results of the blood test, the court correctly recognized that pursuant to VTL §1194 [2][a], a driver must submit to a chemical test within two hours after being placed under arrest for any violation of VTL §1192 (DWI). “Although evidence of a defendant's refusal to take the test offered within the two hour period may be admissible, evidence of refusal to a test offered beyond the two hour period is inadmissible “(People v. Morris, 8 Misc3d 360 [Crim Ct, Richmond County 2005]). “The general prohibition of offering evidence of a chemical test taken beyond two hours of arrest is inapplicable if the defendant consents to the test” (People v. Ayala, 89 NY2d 874 [1996]; but see People v. Victory, 166 Misc 2d 549 [Crim Ct, Kings County 1995]).

Moreover, a “simple request to submit to a blood test can result in a voluntary consent beyond the two hour period as long as there is no express or implied coercion by law enforcement officials, no material misrepresentation of fact to induce consent, and no facts to suggest that the police acted in a manner so fundamentally unfair as to constitute a due process violation to negate any consent “(People v. Capraella, 165 Misc2d 639, 644 [Crim Ct, Queens County 1995]).

As stated above, in this case the submission to the test was beyond two hours from the initial arrest. Moreover, the police officer incorrectly advised the defendant as to the law when he stated that her driver license would be suspended immediately, it would then be revoked if she did not submit to a blood test, and, lastly, that the defendant’s refusal to take the blood test could be used against her at a later trial or hearing. As a result, the court found that the “inaccurate statement of the law by a police officer, detailing undesirable consequences if the defendant refused a blood test, rendered submission to the blood test involuntary.”

If you find yourself or a loved one charged with any serious criminal matter including DWI, contact the former Manhattan prosecutors and criminal defense attorneys at Crotty Saland, LLP. Our attorneys will vigorously and zealously fight to protect your integrity, rights, and future.

As I have stated countless times throughout the entries in my blog, assistant district attorneys and the NYPD in New York City vigorously prosecute those accused of DWI. Make no mistake, the NYPD, judges and prosecutors take the crime of DWI very seriously and an experienced NY criminal attorney should be retained to formulate your best plan of attack to defend and protect your liberty and livelihood.

As a former prosecutor in the Manhattan District Attorney’s Office for seven years and a New York criminal defense attorney, I work with each client to take the time to develop a specific plan for their case whether it is DWI, Identity Theft, or another criminal matter. In order to defend clients to the best of my ability and provide them with a zealous representation, I stay on top of legal decisions in New York City as well as the state.

One such decision issued on July 16, 2008 in Bronx Supreme Court is a decision that is significant to the area of DWI. In People v. Sonny Hormeku, Bronx Supreme Court Justice Richard Lee Price denied suppression of a breathalyzer and coordination test conducted after the defendant’s DWI arrest. In this case, the defendant generally asked for an attorney after his arrest, but prior to consenting to conducting a breathalyzer and coordination test. Therefore, he argued, because he asked for counsel and the tests were still conducted, the results of the test should be suppressed.

The Court recognized the principle that "[A] defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test if he requests the assistance of counsel" People v. Shaw, 72 NY2d 1032, 1034 (1988); See also People v. Monahan, 295 AD2d 626 (2d Dept. 2002). Despite this, the Court further asserted that a defendant does not have the "absolute right to refuse the test until a lawyer reaches the scene" People v. Gursey, supra at 229. Moreover, the Court noted that if the defendant specifies a particular attorney the police must take reasonable steps to try contacting that attorney so the defendant and the attorney can have a telephone conversation. See People v. Palazzo, 2008 WL 2513208 (Sup. Ct. Bronx Cty, June 17, 2008).

In denying the defendant’s motion to suppress, the Court reviewed the facts and found that the defendant did not make a specific request for a specific attorney. Moreover, despite his general request, the defendant agreed to partake in the breathalyzer and coordination tests for DWI.

Although this defendant failed to properly exercise his rights by requesting for a specific attorney, if you find yourself in a similar predicament it is in your interest to inform the police you wish to consult with a particular criminal attorney. To expedite the process you should supply the police with your attorney’s number or have a phone number accessible. Although you may not be prepared in this type of situation, Jeremy Saland, a NY criminal defense attorney and former Manhattan prosecutor, is accessible any time day or night to protect your rights, liberty, and livelihood.

New York Criminal attorneys must always stay on top of recent judicial decisions in order to effectively advocate for their clients whether they are representing a client in Brooklyn for Robbery, White Plains for Forgery or Manhattan (NY County) for Prostitution in relation to an escort service. A recent decision relating to DWI in the Bronx on July 21, 2008 exemplifies this need to constantly be aware of decisions made by judges throughout New York State.

In People v. Netania Holbrook, Justice Richard Lee Price of the Bronx County Supreme Court (the court where felony cases are heard), granted a motion to suppress breathalyzer results taken two hours after the arrest of the defendant for DWI.

Citing People v. Atkins, 85, NY2d 1007 (1995), the Court recognized that merely because a breathalyzer is administered more than two hours after an arrest for DWI does not make the test and its results inadmissible at trial. Although Vehicle and Traffic Law §1194(2) and the New York State Department of Health Regulations (10 NYCRR 59.2[c][2]) mandate that a Blood Alcohol Content Test (BAC) must be administered within two hours of arrest, the results may be admissible if an expert testifies and establishes that the results of the BAC test were indicative of the BAC at the time the defendant was operating the vehicle and that the test itself was scientifically reliable. See also People v. Victory, 166 Misc.2d 549 (Crim. Ct. Kings County 1995).

In addition to establishing that the BAC test was reliable and indicative of the BAC at the time the defendant was operating the vehicle, the People (prosecution) are not entitled to any legal presumption that the BAC test is, in fact, admissible. Instead, to prove the scientific reliability of that BAC test that exceeded two hours from arrest, the People need to prove this reliability at a hearing prior to trial and to prevent the suppression of that evidence. See also Victory.

Agreeing with the rationale established and set forth in Atkins and Victory, Justice Price suppressed the breathalyzer test and results finding that the “People inexplicably presented no testimony, scientific or otherwise, to establish that the test administered to the defendant more than two hours after her arrest was competent, reliable and probative of the fact that she was impaired or intoxicated when she operated the vehicle.” In short, the People failed to present expert testimony, or any testimony, establishing this reliability.

Clearly, the Holbrook decision and the cases that preceded it are critical rulings that a New York defense attorney should know backwards and forwards and be prepared to utilize for their DWI clients if the circumstance presents itself. While suppressing the results a breathalyzer does not guarantee a victory at trial or that the prosecution will surrender their case, suppressing the evidence clearly makes prosecution that much more difficult and greatly enhances a client’s defense.

Even if you retain a criminal defense attorney who helps you avoid jail or a significant fine on a plea to Driving While Intoxicated (DWI) in New York City, there is always the potential that the vehicle you were driving at the time you were arrested may be forfeited. In fact, this past March the Appellate Division First Department (an appellate court with jurisdiction over the Bronx and Manhattan) upheld a forfeiture of a car where the vehicle driven during the DWI offense was a BMW valued in excess of $20,000.

In the above mentioned case, the owner of the car argued that New York City should not be able to seize and keep the vehicle because the punishment was excessive. The owner reasoned that if the maximum fine is $1000 for the DWI offense, the forfeiture of a vehicle valued over $20,000 is clearly excessive. Unfortunately for the owner, the First Department was not swayed. Further compounding things, the First Department also rejected the owner's argument that his equal protection rights were violated because the New York City Police Department only sought the seizure and forfeiture of expensive cars. This allegation, according to the First Department, was merely speculative.

On a positive note, a conviction for DWI does not mean you will automatically loose your vehicle. Although the owner of the vehicle has the burden of proof, where the driver of the car who was convicted of the DWI was not the owner there is a potential defense to the forfeiture commonly known as the "innocent owner" defense. Additionally, notice of the forfeiture action must be given and individuals including, but not limited to, the owner who may be able to request a hearing on the matter.

Driving While Intoxicated (DWI) is an offense that all prosecutors and judges in New York, from Manhattan, Brooklyn and the Bronx to White Plains, Yonkers and Mt. Vernon, take extremely seriously. In fact, as of December 2006, the New York State Legislature put a new law on the books, Aggravated, DWI 1192.2(a), which reflects prosecutors’ and judges’ views.

Aggravated DWI sets forth, in pertinent part, that no person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath or urine. Although the crime for a first time offender is a misdemeanor punishable by up to one year in jail, a felony a felony prosecution punishable by up to 4 years state prison can be brought if in the past 10 years the person has a prior DWI. Assuming this offense is the driver’s first, there is a fine of $1000 to $2500 as well as limitations on what a person can plead to that is significantly more strict than a DWI where that person’s alcohol level is lower.

In the event there is a sentence of probation, the law requires that an ignition interlock be placed on the vehicle until the period of probation is terminated. This mechanism is placed in the vehicle and requires the driver to blow into it before the ignition will start.

Additional requirements and aspects of sentencing include a screening or an assessment, enrollment in an alcohol program and a one year revocation of a person’s driving privileges. While this is not a complete analysis and explanation of the crime and its potential sentences, it should be very clear to anyone who might get behind the wheel while intoxicated - prosecutors and judges are ready, willing and able to hand out sever punishments.

If you find yourself or a loved one charged with any DWI related crime, you should retain counsel who has real experience in this area of law. Not only is your liberty potentially at stake, but your livelihood and integrity. As a former prosecutor in the Manhattan District Attorney’s Office for over 7 years, I have the experience necessary from both sides of the law to aggressively advocate for your rights and challenge the prosecution. Don’t let a DWI ruin your career or life.

Nassau County Executive Tom Suozzi plans on releasing the names of all people arrested for DWI (driving while intoxicated) over the Memorial Day weekend. Hopefully, executives, legislators and other politicians in Westchester, Rockland, Manhattan, Bronx, Brooklyn, Queens and Staten Island don't follow in his foot steps in circumventing the criminal justice system. Not only does he plan on releasing these folks' names and addresses, but he is providing the local media with their photographs and urging them to release this information.

We can all agree that DWI is an extremely dangerous and potentially a life altering/ending crime for the driver of a vehicle as well as passengers and others on the road. There is just no excuse for it. However, releasing the accused's name prior to a conviction is not only presuming guilt instead of innocence, but is nothing short of a smear and scarlet letter. Now, we can all agree to disagree, but maybe Mr. Suozzi should be more tactful, professional, and less grand standing in his pursuit of finding a deterrent for what is objectively a terrible crime. If Mr. Suozzi wants to deter people (and rightfully so) from this behavior and insists on making public names, photographs and addresses, then why not at least wait until there is a conviction and why not do it regularly as opposed to doing it for one holiday weekend? Anyone can be arrested for a crime anytime. An arrest is not evidence of guilt.

As a former prosecutor in the Manhattan District Attorney's Office and an experienced criminal defense attorney, Jeremy Saland knows that people are often accused and sometimes convicted of crimes they did not commit. History teaches us that not only are cases dismissed prior to trial, but people have been incarcerated for years only to be exonerated at a later date. Therefore, in order to protect not only your rights, but your integrity and livelihood, you need to contact a criminal defense attorney who will aggressively fight to get you the best possible outcome in your case and put you where you need, and want, to be.