Criminal Defense and DWI

Greetings! We are New York’s top criminal law firm, Massimo & Panetta, P.C. and we often get calls questioning “expungement” and/or sealing. The first thing you must know is that in New York, there’s no such thing as an “expunged” criminal record. That criminal plea follows you forever… Sounds terrible right? Even when they say that your record is going to be sealed, you must understand that it may not truly be sealed. We strive to correctly advise our clients and zealously protect their record. If you’re charged with a crime, this is arguably, the only firm to hire. Nick Massimo & Frank Panetta have between them , forty years of experience, beating DA’s, winning trials and overcoming insurmountable odds. After Mr. Panetta watched Nicholas J. Massimo beat a larceny case with two videos and a confession, he said “At last, I have found my partner”. The purpose of this post is to advise you about section 160.55 of the Criminal Procedure Law or CPL, where your matter is supposed to be sealed, the prosecutor and judges tell you that it’s sealed, but it’s really not sealed.

Chief Judge Jonathan Lippman explains “sealed”

I. ARRAIGNMENT

1. Suspensions: The Judge has authority to suspend pursuant to several statutes at arraignment.

– A suspension means that the license or privilege to drive is suspended for a definite certain period. However, the defendant’s license is not automatically restored after that period, the defendant must pay a $25 Suspension Termination Fee to DMV and will remain suspended until that is paid. However, once that occurs, DMV must restore the defendant’s license or privilege to drive.

– A revocation means that the defendant’s license or privilege to drive is invalid for a minimum period after which the defendant may apply to the Commissioner of DMV for restoration of the license or privilege. Since a driver’s license is a privilege and not a right, DMV has considerable discretion as to when or if the defendant’s license will be restored.

(A) V.T.L. § 1192.(e)(7), the Prompt Suspension Law, mandates a suspension pending prosecution when the defendant is charged with DWI and is alleged to have had a BAC of .08 or more at the time of his/her arrest. It is only applicable to V.T.L. § 1192.2 charges and some § 1192.3 cases, but only where there is a chemical test reading of .08 or more.

– The Court must find that the accusatory instrument “conforms to the requirements of [C.P.L.] § 100.40.” V.T.L. § 1193.2(e)(7)(b), i.e. that it is facially sufficient.

– The Court must further find that there exists reasonable cause to believe that the defendant was actually operating the motor vehicle with a BAC of .08 or more as shown by a chemical test of blood, breath, urine or saliva. According to Pringle v. Wolfe, 88 N.Y.2d 426 (1996), the Court must be in possession of a properly certified chemical test result in order to suspend pursuant to this law. The Court is also required to hold a“Pringle Hearing” before the conclusion of the proceedings requirement for arraignment and before the license may be suspended at which time the defendant may rebut the Court’s findings. “It is incumbent on the court to grant the driver’s reasonable request for a short adjournment if necessary to marshal evidence to rebut the prima facie showing of ‘reasonable cause.’” Pringle, 88 N.Y.2d at 432-433.

Timing – the suspension must be imposed by the conclusion of the arraignment proceedings. The exception is where chemical test results are not available at the completion of the arraignment (i.e., blood or urine), in which case the police officer or other public servant must transmit the results to the court as soon as they become available. The court is then required to hold the suspension proceedings as soon as practicable after the receipt of the results. V.T.L. § 1193.2(e)(7)(b).

– Applicability to out of state licensee. There are conflicting decisions, People v. Nuchow, 164 Misc. 2d 24 (Orangetown Justice Ct. 1995) holds that the statute refers to suspending only the defendant’s license, not privilege to drive, therefore, since New York only has jurisdiction for New York State issued licenses, the statute is limited to suspending those. People v. MacDougall, 165 Misc. 2d 991 (Brighton Justice Ct. 1995), rejects Nuchow and holds that New York Courts have always had authority to suspend an out of state driver’s privilege to use New York roads.

– The defendant is not eligible for a pre-conviction conditional license until 30 days after the suspension has been in effect. The defendant is then eligible only if he is eligible to enter the DMV Drinking Driver Program (DDP) if the defendant were convicted of any subdivision of V.T.L. § 1192.

– The defendant is eligible for a “Hardship Privilege” within the first 30 days after the suspension is imposed if he/she can show the Court that the loss of the privilege to drive would result in an “extreme hardship” to the defendant. Extreme hardship is defined as the inability to obtain alternative means of travel to or from employment, medical needs for the driver or member of the driver’s household, or to or from schooling if the licensee is a student. V.T.L. §1193.2(e)(7)(e). The hearing must be held within 3 business days from the time of the initial appearance only if the sole reason for the delay of the arraignment is the hearing.

– The burden is on the licensee at the Hardship Hearing who may present relevant and material evidence, however, the finding may not be based solely upon the testimony of the licensee. V.T.L. § 1193.2(e)(7)(e). For the factors to be considered at a Hardship Hearing See, People v. Correa, 168 Misc. 2d 309 (N.Y. Crim. Ct. 1996) and People v. Bridgman, 163 Misc. 2d 818 (Canandaigua City Ct. 1995). Note that Nassau County District Courts have interpreted the “solely upon the testimony of the defendant” requirement to mean that the defendant must present a witness other than him/herself. Most other counties will accept as little as a letter from an employer.

– The Hardship privilege is widely believed to only allow the driver to go to and from a fixed location due to the wording of the statute. However, an informal opinion from the DMV Counsel’s Office states that person who needs to drive to various job sites may do so, but he or se may not drive for purposes such as running errands, picking up work materials, etc.

– When the defendant obtains the pre or post conviction conditional license, the license allows the driver to drive:

1- to and from employment

2- if the defendant’s employment requires driving, then during the hours thereof

3- to and from classes for alcohol or drug program for which the defendant’s attendance is required.

4- to and from accredited schools

5- to and from court ordered probation activities
6- to and from DMV for any business required there by the defendant

7- a 3 hour period each week where the defendant may drive anywhere that is not on a day the defendant is working

8- to and from any medical provider for the defendant or a household member if evidence by a written statement to that effect from a licensed medical practitioner

9- to and from a child care provider, including a school, which is necessary for the defendant to maintain employment or schooling.

(B) V.T.L. § 1193.2(3)(1) authorizes the suspension pending prosecution of a defendant charged with DWI or DWI drugs who has either been convicted of any subdivision of V.T.L. § 1192 within the preceding five years or who is presently charged with Vehicular Assault or Vehicular Homicide. No chemical test is required for this suspension and it is authorized on a refusal. If the suspension is for a presently charged Vehicular Assault or Vehicular Manslaughter and the defendant does not have a previous conviction under any subdivision on V.T.L. § 1192 in the last five years, the defendant is entitled to a hearing whereby the People must establish that there is reasonable cause to believe that the defendant has committed the present crime. V.T.L. § 1193.2(e)(1)(b).

Timing. The suspension must be imposed within 20 days of arraignment under this section. The due process principles of Pringle are applicable during the suspension procedure, save, of course, the requirement of a chemical test which is not necessary under this subdivision. People v. Osborn, 193. Misc. 2d 173 (Sullivan County Ct. 2002).See, also, People v. Giacopelli, 171 Misc. 2d 844 (Clarkstown Justice Ct. 1997), where the scope of the hearing is discussed as well.

– The defendant is not eligible for either a Hardship Hearing or a Pre-Conviction Conditional License under this section since the defendant would not be eligible for a Post-Conviction Conditional license regardless of whether the conviction is of V.T.L. § 1192 or Vehicular Assault or Vehicular Manslaughter.

– If a suspension is imposed pending prosecution, regardless of whether it is pursuant to V.T.L. § 1193.2(e)(1) or (7), the time period during which the suspension is pending prior to a conviction is not credited towards any post-conviction suspension/revocation period. The suspension does not violate the double jeopardy or equal protection Constitutional protections of the defendant under either the United States or New York State Constitutions. People v. Haishun, 238 A.D.2d 521 (2d Dept. 1997); People v. Roach, 226 A.D.2d 55 (4th Dept. 1996)..
(C) V.T.L. § 1194.2(b)(3) the Refusal Suspension. The Court at the arraignment of a chemical test refusal case is required to temporarily suspend the defendant’s driving privileges pending the outcome of a DMV Refusal Hearing. Similar provisions exist for Boating While Intoxicated pursuant to Navigation Law § 49-a and Snowboarding While Intoxicated pursuant to Parks, Recreation and Historic Preservation Law § 25.24.

– The Court must be in possession of a Chemical Test Refusal form to suspend.

– If DMV fails to provide for a hearing within 15 days of the defendant’s arraignment, the defendant’s license to drive must be reinstated pending a rescheduled hearing. If the defendant shows up for the hearing and the arresting officer does not appear, the hearing will get adjourned and the suspension will be terminated pending a rescheduling of the hearing.

– NOTE – The defendant is not eligible for a Pre-Conviction Conditional License when charged with a Chemical Test Refusal since a pre-requisite for any Conditional License is that the defendant be eligible for the DDP program. A defendant is only eligible for the DDP program if he is convicted of any subdivision of V.T.L. § 1192.2.

(D) V.T.L. § 510.3-a Discretionary Suspensions. Pursuant to this subdivision, the language appears to clearly state that a Judge has the power to temporarily suspend a defendant’s license pending prosecution for any violation of the V.T.L., except V.T.L. § 1192. This statute was designed to allow a judge to suspend in matters where the defendant’s driving demonstrated a reckless disregard for the life or property of others. Despite the apparently clear language, suspensions for V.T.L. § 1192 charges have been upheld. Ryan v. Smith, 139 Misc. 2d 151 (Schenectady Sup. Ct. 1988).

II. PRE-TRIAL MOTIONS

– Probable Cause to stop the motor vehicle

– Probable Cause to believe that the defendant was operating a motor vehicle in violation of any subdivision of V.T.L. § 1192

– Probable Cause for Arrest

– Improper Chemical Test Refusal

– Huntley/Wade/Sandoval

(A) Sufficiency of Factual Allegations

– A key to a successful DWI defense is obtaining pre-trial hearings which allow you to cross examine about as much of the case as is possible, if even just to gain discovery to gauge the strength of the People’s case and set your case up for trial in the best light possible. In most DWI’s you will want to move for the some or all of the above hearings. Your client will often tell you that they only had one to two drinks, that they did not weave in the lane or speed and often that they really don’t remember the directions on the S.F.S.T.’s and are not sure how they performed. In your pre-trial motion you must be as specific as possible to obtain hearings particularly since in Nassau County lately judges will try to deny these motions.

– The People will often cite People v. Mendoza, 82 N.Y.2d 415 (1993), often mis-characterizing the actual holding in this case, claiming that your factual allegations are insufficient. Mendoza was actually three separate cases, none of which were DWI’s, where the defense basically stated that the defendant was doing nothing illegal or unlawful when approached and stopped by the police officer. The defendants further alleged that the police activity was unlawful, none of the three defendants provided any factual allegations as to what the defendant and the police officers did at the time of the stop and seizure of the defendant.

– In Mendoza the Court of Appeals gave guidance to lower courts as to how to examine suppression motions, a court should evaluate the pleadings by examining “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information.” Mendoza, 82 N.Y.2d at 426. The court notes that where the issues involve a mix of issues of law and fact, it becomes more difficult for a court to summarily deny a motion. The court then notes that in examining the context of the motion that there are some cases where factual issues, those facially sufficient, may be inadequate, and others, where “seemingly barebones allegations may, in context, be sufficient to require a hearing.” Mendoza, 82 N.Y.2d at 427. In examining the context of the motion, the court notes the importance of the defendant denying certain factual allegations raised by the People so that he is not deemed to have admitted them.Mendoza, 82 N.Y.2d at 428. Thirdly, the court notes that “[i]t would be unreasonable to construe the CPL to require precise factual averments when, in parallel circumstances, defendant similarly does not have access to or awareness of the facts necessary to support suppression.” Mendoza, 82 N.Y.2d at 429, citing, People v. Landy, 52 N.Y.3d 369, 374, People v. Gruden, 42 N.Y.2d 214, 218.

– The Court of Appeals further stated that “the C.P.L. does not mandate the summary denial of defendant’s motion even if the factual allegations are deficient. See, C.P.L. § 710.60(3) [‘The court may deny the motion.’]” and further notes that “if the court orders a Huntleyor Wade hearing, and defendant’s motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency.”Mendoza, 82 N.Y.2d at 429. The court should exercise its discretion here even if there were pleading deficiencies, which there are not, so that it prevents “requiring the parties and witnesses to reassemble for a new hearing, often months or years later.”Mendoza, 82 N.Y.2d at 430.

(B) Probable Cause to Stop the Vehicle. When your client was driving at the time of the offense and the police stop the vehicle in some manner, the stop invokes both the Fourth Amendment to the United States Constitution and Article I, § 12, in that it constitutes a seizure of the defendant’s person. According to People v. Sobotker, 43 N.Y.2d 559 (1978) and People v. Ingle, 36 N.Y.2d 413 (1975) stop is proper and lawful if either:

1 – there was probable cause to believe that the defendant was, is, or is about to commit a crime; or

2 – the police officer observed the defendant commit any violation of the V.T.L..

– Be as specific as possible. These hearings are routinely granted in New York City courts and are called Johnson Hearings from People v. Johnson, 134 Misc. 2d 474, 511 N.Y.S.2d 773 (Qns. Crm. Ct. 1987).

– In People v. Clifford, ___ Misc. 2d. ___ (Nassau Co. 1989) New York Law Journal, April, 25, 1989, (p. 29, col. 1), the Court ordered pre-trial hearings where the defendant alleged that he was driving his vehicle in a lawful manner when the police officer directed him to stop since the officer observed the air in one of his tires was low. The Court found a pre-trial hearing was necessary to determine whether or not the stop was illegal citing, People v. Abruzzi, 42 N.Y.2d 813 (1977), Aff’d on opn. below, 52 A.D.2d 499, (2d Dept. 1976), Cert. denied, 434 U.S. 921.

– Where the motor vehicle was either parked or the defendant was standing outside of the vehicle, the legality of the seizure of the defendant is measured by the four tier analysis ofPeople v. Debour, 40 N.Y.2d 210 (1976) and People v. Hollman, 79 N.Y.2d (1992).

– You will move to suppress evidence regarding the probable cause to stop and seize the defendant’s person pursuant to C.P.L. § 710.60(2). In the alternative, move for a hearing on the issue pursuant to V.T.L. § 710.60(4).

(C) Probable Cause to Arrest. The defendant has a right to challenge whether or not his arrest was lawful. If the police made the arrest on less than probable cause, the defendant has the right to move to suppress any evidence gained as a result of the illegal arrest. The Court may order a hearing to determine if the defendant’s arrest was lawful.Dunaway v. New York, 442 U.S. 200, 99 Sp.Ct. 2247 (1979); People v. Milaski, 62 N.Y.2d 147 (1984); People v. Dodt, 61 N.Y.2d 408 (1984).

– In People v. Thomas, ___ Misc. 2d ___, (Nassau District Court, 1992 C.R.# 9705/92), the Honorable Daniel Palmieri held the following. “The statute provides that a chemical test may be taken only if the person has been arrested, V.T.L. 1194.2(a)(1), and an arrest without a warrant may only be made if it is in compliance with C.P.L. 140.10, hence it follows that a test which is predicated upon an improper arrest is suppressible. The defendant has the right at the suppression hearing to pursue or make inquiry with respect to the propriety of the arrest. Thomas, supra; citing People v. Misuis, 47 N.Y.2d 979 (1979); People v. Wise, 46 N.Y.2d 321 (1978).”

– Where the police officer mistakenly believes in good faith that he/she has probable cause to believe that the defendant has committed a traffic infraction, when in fact the defendant had not, “the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal.” Byer v. Jackson, 241 A.D.2d 943 (4th Dept. 1997).

– You must allege in your factual allegations that the defendant’s physical appearance was not that of an intoxicated person, that the defendant performed the S.F.S.T.’s in accordance with the officer’s instructions and that the officer lacked reasonable cause to believe that the defendant was driving while intoxicated under the circumstances.

– Where the defendant has been involved in a car accident, you may not move for this hearing since the police officer has the right to investigate the accident, but you may move under the grounds alleged further herein.

– You will move to suppress evidence regarding the probable cause to arrest the defendant’s pursuant to C.P.L. § 710.60(2). In the alternative, move for a hearing on the issue pursuant to V.T.L. § 710.60(4).

(D) Probable Cause to Believe that the defendant was in violation of any subdivision of V.T.L. § 1192

– Results of a chemical test of a defendant’s breath, blood, urine or saliva may be admitted as evidence against him at trial only if the People demonstrate that the test was administered at the direction of a police officer “having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two and within two hours after such person has been placed under arrest for any such violation.” V.T.L. §1194.2(a)(1), see, People v. Hall, 61 N.Y.2d 834 (1984);People v. Kates, 53 N.Y.2d 591 (1981); People v. Crocker, 125 A.D.2d 132 (3d Dept. 1987). Therefore, you may move to suppress the chemical breath test on the basis that the officer lacked probable cause to believe that the defendant was driving in violation of any subdivision of V.T.L. § 1192.

– While there is no specific statute that grants this hearing, caselaw clearly indicates that a Defendant is entitled to a pre-trial hearing to determine whether the guidelines enunciated in V.T.L. Article 1194 have been followed. See, People v. Kates, 53 N.Y.2d 591 (1981) (following Defendant’s motion to suppress results of blood test, pre-trial hearing held with respect to consent issue); People v. Crocker, 125 A.D.2d 132 (3d Dept. 1987) (hearing held concerning whether blood test administered within two hours of arrest); People v. Stisi, 93 A.D.2d 951 (3d Dept. 1983); People v. Johnson, 134 Misc. 2d 474 (Crim. Ct. Queens Cty. 1987) (hearing held to determine reasonableness of car stop and whether standards for giving chemical tests were violated).

– You will move to suppress evidence regarding the probable cause to believe that the defendant was driving in violation of any subdivision of V.T.L. § 1192 such that the chemical test should be suppressed pursuant to C.P.L. § 710.60(2). In the alternative, move for a hearing on the issue pursuant to V.T.L. § 710.60(4).

(E) Blood Test Cases. In the rare cases that blood is drawn from the defendant, typically when the defendant is injured in an accident and taken to the hospital, the defendant may move for suppression of his blood results on the basis that the blood was drawn in violation of V.T.L. § 1194.4(a)(1). People v. Moser, 70 N.Y.2d 476 (1987). That statute discusses the individuals who are qualified to draw blood, a police officer may not unless he has one of the qualifications. Please note that V.T.L. § 1194.4(a)(1) does not apply to breath, saliva and urine samples.

(F) Suppression of Chemical Test Refusal. The defendant may challenge the alleged refusal to submit to a chemical test by moving to suppress the test at a pre-trial hearing.People v. Boone, 71 A.D.2d 859 (2d Dept. 1979), “the denial without a hearing, of defendant’s motion to suppress his alleged refusal to submit to a chemical test” constituted reversible error. The refusal to submit to a chemical test may be used against the defendant at trial to establish consciousness of guilt. People v. Thomas, 46 N.Y.2d 100 (1978)

– The refusal to submit to a chemical test is not a Federal Constitutional right, South Dekota v. Neville, 459 U.S. 553 (1983), nor a State Constitutional right, People v. Thomas, 46 N.Y.2d 100 (1978), however, the defendant does have a qualified “statutory right to refuse the test.” People v. Shaw, 72 N.Y.2d 1032 (1988); V.T.L. § 1194.2(b)(1). It is qualified in the sense that there are civil consequences for refusing and a person may be compelled to take a test pursuant to V.T.L. § 1194.3.

– Contrary to the belief of most, a defendant need not be given the statutory warnings unless he/she first refuses to take the chemical test. People v. Thomas, 46 N.Y.2d 100 (1978); People v. Whelan, 165 A.D.2d 313 (2d Dept. 1991).

– The warnings must be “clear and unequivocal.” The refusal warnings must be read to the defendant in “clear and unequivocal language.” V.T.L. §§ 1194.2(f), 1194.2(b)(1), 1194.2(c). Where the officer attempts to explain the refusal warning in layman’s terms does so incorrectly, the warnings will not be “clear and unequivocal.” Gargano v. New York State DMV, 118 A.D.2d 859 (2d Dept. 1986). Incomplete warnings render the chemical test refusal suppressible at trial and invalid such that DMV may not revoke the defendant’s license. People v. Boone, 71 A.D.2d 859 (2d Dept 1979); Harrington v. Tofany, 59 Misc. 2d 197 (Warren Sup. Ct. 1969).

The State Police practice of holding the refusal defendant. The State Police has what appears to be a policy of telling suspected intoxicated defendant’s that have little or no prior arrests that if they consent to take the test, they will issue the defendant an appearance ticket, but, if the defendant refuses, they will hold the defendant in custody for arraignment. The People often cite People v. Cragg, 71 N.Y.2d 926 (1988), which appears on its face to condone this practice. However, changes in the law make, in my opinion, this policy challengeable on the grounds that it coerces the defendant into taking a test. When Cragg was decided in 1998, there was no prompt suspension law.

The Court of Appeals opinion is very short and relies upon the reasoning of the lower court, but makes clear that they found that in the circumstances of the Cragg case this technique was not coercive as the Police had a rational basis other than coercion for having this policy. An examination of the lower court opinion demonstrates that the People justified this policy on the basis that at that time a defendant charged with DWI who consented was not subject to a suspension during the pendency of the case, while the defendant who refused was subject to a refusal suspension at arraignment. The People reasoned that there was a rational basis other than coercion to have the defendant who refused brought immediately before the judge for the immediate suspension of the defendant’s license to drive to protect the citizens of New York State, as opposed to the person who consented who was not subject to suspension. This can no longer be the Police Department’s reasoning for having such a policy as both the defendant who consents to and refuses the test are subject to immediate suspensions. Therefore, there does not appear to be any rational basis other than to coerce the defendant to take the test for this policy.

– The Defendant must “Persist” in his/her refusal. V.T.L. § 1194.2(f) notes that evidence of the refusal may be admitted against the defendant at any hearing, proceeding, or trial but only upon a showing that the warnings were read in clear and unequivocal language of the effect of the refusal and that the defendant persisted in his refusal. In order for the defendant to persist in his/her refusal, the defendant must be “offered at least two opportunities to submit to the chemical test, ‘at least one of which must take place after being advised of the sanction of his refusal.’” People v. Pagen, 165 Misc. 2d 255, 261 (Queens Crm. Ct. 1995); citing, People v. Rosado, 158 Misc. 2d 50, 51-52, (Bronx Crm. Ct. 1993). See also, People v. Thomas, 46 N.Y.2d 100 (1978).

– A Chemical Test Refusal need not be “Knowing.” The defendant’s decision not submit to a chemical test, in essence a “waiver,” need not be knowing in order to be valid. Carey v. Melton, 64 A.D.2d 882 (2d Dept. 1978). The rationale for departing from the general waiver rule is that while the defendant can be so intoxicated that he/she may not truly understand the consequences of his refusal, to find otherwise would allow the defendant less accountability comparative to the higher levels of intoxication.

– You will move to suppress a chemical test refusal on several grounds, that the language given was not “clear and unequivocal,” that the defendant did not persist in his/her refusal, and as the fruit of others, there was no probable cause for the stop, arrest, to believe the defendant was operating a motor vehicle in violation of any subdivision of V.T.L. § 1192 such that a request to take the test was legal, etc.

III. PRE-TRIAL HEARING AND TRIAL

(A) DMV Refusal Hearing. The defendant has an absolute right to counsel at the hearing and can choose any person of his choosing as long as that person adheres to the standards of attorneys in NY State. 15 NYCRR 127(4)(a). The defendant is entitled to discovery of “nonconfidential information in the hearing file which is not protected by law from disclosure.” 15 NYCRR 127.6(a). The defendant has a right to examine the hearing file at least 5 days prior to the hearing if the file has been sent to the hearing officer, unless the defendant and hearing officer agree to a lessor period of time. The defendant may also examine the file at the Safety Hearing Bureau. If the request by the defendant to examine the file is received less than 7 days prior to the hearing, the defendant may examine the filed immediately prior to the hearing or at an earlier time agreed to in the discretion of the hearing officer. 15 NYCRR 127.6(a). At the DMV hearing if the Administrate Law Judge finds in the affirmative to all four of the following issues, the defendant’s licence will be revoked by DMV for a minimum of 1 year. The proof must be based on “substantial evidence.” 15 NYCRR 127.6(b). The 4 issues are:

1- did the police officer have reasonable grounds to believe that the defendant had been driving in violation of any subdivision of V.T.L. § 1192

2- did the police officer make a lawful arrest of the defendant

3- was the defendant given sufficient warning in clear and unequivocal language prior to his/her refusal that the refusal to take the chemical test, or any portion thereof, would result in the immediate suspension and subsequent revocation of the defendant’s license or privilege to drive in the State of New York, whether or not such person is found guilty of DWI

4- did the defendant refuse to submit to the chemical test or any portion thereof.

The Two-Hour Rule. Where the police fail to offer the defendant a chemical test within two-hours of the latter of the defendant’s arrest for a violation of V.T.L. § 1192 or two hours of the time of a breath screening test, for DMV purposes the refusal is not proper. However, the case law conflicts with regard to the admissibility at a criminal trial. People v. Brol, 81 A.D.2d 739 (4th Dept. 1981) held that such evidence is incompetent and inadmissible. People v. Ward, 176 Misc. 2d 398 (Sup. Ct. 1998) held that subsequent decisions have changed the scope since Brol and refusals are admissible even if requested beyond two hours. People v. Morris, 8 Misc. 3d 360 (N.Y. Crim. Ct. 2005) rejects Wardand found such refusals suppressible.

Adjournments and failure to show for the hearing. The defendant may waive the hearing in writing to DMV. The defendant may also waive the hearing by failing to show at it, however, if the defendant fails to show he/she may petition the DMV commissioner for new hearing. V.T.L. § 1194.2(c). However, the suspension/revocation resulting from the hearing will remain in effect pending the new hearing and will not be credited toward any license revocation resulting from the hearing. 15 NYCRR 127.8.

– If the defendant attends the hearing and the police officer does not, 15 NYCRR 127.9(c), states that “the matter will be adjourned and any temporary suspension still in effect shall be terminated. At any subsequent hearing, the hearing officer may make findings of fact and conclusions of law based upon the chemical test refusal report and any other relevant evidence in the record, notwithstanding the police officer’s nonappearance.” The reason that at a second hearing if the officer does not show the hearing officer can use the report, etc., is that hearsay is admissible and evidence is not subject to the admissibility of courts of law. The defendant may testify at such rescheduled hearing and has the absolute right to subpoena the arresting officer and the right to an adjournment to do that. Gray v. Adduci, 73 N.Y.2d 741 (1988). If the officer fails to show after being subpoenaed, Due Process requires that the refusal charge be dismissed. In the Matter of the Administrative Appeal of Thomas A. Doyle, Case No. #95-33398, Dkt. No. 18657 (DMV Appeals Board, August 1, 1997).

– DMV must be able to provide the hearing withing 15 days of the defendant’s arraignment or the defendant’s license or privilege to drive must be reinstated pending the hearing. V.T.L. § 1194.2(b)(3).

– Appeals. The revocation of the defendant’s license by DMV may be appealed to the DMV Administrative Appeals Bureau. V.T.L. § 1194.2(c). The Appeal must be filed within 60 days after written notice is given by DMV, and the defendant must pay a $10 filing fee and pay for the transcription of the record. The defendant may take a CPLR Article 78 proceeding if he loses the appeal.

– NOTE- When the Court initially suspends and DMV revokes the defendant’s license or privilege to drive for a chemical test refusal, the defendant cannot receive a Conditional License unless he is DDP eligible. The defendant is only eligible for DDP if he is convicted of any subdivision of V.T.L. § 1192. This leads to the ludicrous possibility that your client can be acquitted of all charges at trial, but have a license revoked for a minimum of 1 year and not be eligible for any type of conditional or restricted license! This has been found to be Constitutional. Miller v. Tofany, 88 Misc. 2d 247 (Broome Sup. Ct. 1975).

– Refusal revocations will run concurrently with a suspension or revocation issued by a Court after a conviction for DWI, only if both are pending at the same time, otherwise they run consecutively.

– When a defendant already has his license or privilege revoked for a chemical test refusal and is subsequently convicted of DWI or DWAI, do not ask for a 20 day stay of the Court imposed suspension/revocation. This is because a 20 day stay pursuant to V.T.L. § 1192.2(d)(2) since a 20 day stay only continues the defendant’s existing privileges to drive, in other words, what privileges the defendant has other than the suspension pending prosecution. As a refusal suspension/revocation is separate and apart from that, the defendant’s license remains revoked when a 20 day stay is granted. Note that a 20 day stay may only be granted to a defendant who is eligible for both the DDP program and a conditional license license.

(B) Pre-trial Hearing in District or County Court. More often than not the pre-trial hearing is best designed to gain discovery and gauge the experience of the arresting officer and breath technician if applicable, rarely will the Court suppress evidence. However, properly used, the pre-trial hearing can set the stage for an Acquittal at trial or conviction for DWAI.

– There are three basic separate and distinct pieces of evidence against a DWI client, the observations of the officer, the SFST’s and the machine. All can be challenged successfully, and often the evidence of one can be inconsistent with the other leading to the doubt of the level or intoxication of the defendant that the police officer wants the Judge/Jury to believe.

– (1) Observations of the Officer. Always remember, what the defendant did do right is just as important as what the defendant did not do right and can establish that the defendant was not intoxicated or impaired as opposed to the Police Officer’s conclusion that the defendant was intoxicated.

– what training did the officer have in DWI and specifically SFST’s and administering intoxilyzer tests? When was the last time the officer trained? Is the officer NYTSA certified?

– How many DWI arrests has the officer made, how many assisted both before the incident and between the incident today? The more experienced officer tends to have made many arrests between the incident and today and can confuse them. This can be drawn out by finding inconsistencies in the officer’s testimony.

– when the defendant was stopped, while he/she is usually charged with a V.T.L. infraction, usually there are many things that the defendant did right, i.e. maintained his/her lane, signaled a lane change, drove under the speed limit, stopped in an appropriate safe location, etc.

– when the officer asked the defendant to produce driver’s license, registration and insurance card, and if so, did the defendant fumble the documents.

– when the defendant stepped out of the vehicle, did the defendant follow the police officer’s instructions, walk to the rear of the vehicle, did the defendant need to use the vehicle to assist his/her balance.

– officer is trained to use the phrase “odor of an alcoholic beverage” when referring to what he smelled on the defendant. That is because the officer is trained that alcohol has no odor, it is the beverage mixed with alcohol that gives the odor. The level of the odor is not indicative as to the amount the defendant has ingested as different alcoholic beverages that have the same amount of alcohol give off different odor’s on a person’s breath (i.e., beer gives off a stronger odor than a shot of vodka).

– bloodshot watery eyes, there are many things that can cause this which have nothing to do with alcohol, fatigue, allergies, contact lenses, crying, etc. Does the officer know how much sleep the defendant got the night before? If the defendant has allergies? Wears contacts? Was the arrest at 3 a.m. when most people awake have bloodshot eyes? What do the defendant’s eyes look like on the video/arrest photo?

– slurred speech, has the officer ever spoken to the defendant before? Is there an audio or video recording of this speech? Does the defendant have a speech problem?

– lack of coordination. What shoes was the defendant wearing? Does the officer know how long the defendant was driving before the stop? Did the defendant keep his/her balance at other times without problem?

– (2) Standard Field Sobriety Test. SFST’s, were the police officer’s instructions correct? If not, how could that have perfected the defendant’s performance. Is the officer’s testimony inconsistent with itself? If the defendant was able to stand still and focus on the pen for the HGN, why did the defendant use his/her arm for balance on the car or hop or sway on the Romberg or One Legged Stand? Compared to what the defendant did wrong on an SFST, how much did the defendant do right? What % of the test did the defendant do right? What were the conditions under which the defendant was asked to take the test? Were they fair or did they have an effect on the results of the test? When did the officer record his/her observations relative to when the test was performed?

– compare NYTSA standards to those of the officer’s. Did the officer use objective clues or subjectively decide based upon the entire information he processed prior to arrest to form his/her conclusion that the defendant was intoxicated. If so, did that pass under NYTSA standards?

– Horizontal Gaze Nystagmus. Nystagmus is simply a jerking of the eye. However, is the officer really properly trained to administer this test? As the test calls for neurological observations, is anyone other than a Neurologist qualified to interpret the observations on this test? What else causes Nystagmus?

– The Nassau County Police Department will often conduct two sets of SFST’s, one on the roadside by the arresting officer, one at the Central Testing Unit by the breath technician. The breath technicians at CTU are generally much better trained than the average arresting officer. Compare the two sets, more often than not the defendant will perform better at CTU. If that is the case, why? Was the arresting officer not qualified to perform the SFST’s, did the arresting officer miss or change directions to perform the test in a manner that was unfair or explains certain things that your client did, were the roadside conditions unfair so as to compromise the results of the roadside testing? The DA may try to argue that the defendant’s better performance at CTU was due to the fact that he/she was in the post-absorptive phase, however, usually this is not the case.

– Note that when the defendant does worse at CTU, you can reverse the argument and suggest that the defendant was still in the absorptive phase at the time of the time, therefore, at a lower alcohol level, which essentially cannot be accurately determined by modern science, at the time he/she was driving the motor vehicle.
– Note as well that the when SFST’s are performed on the roadside that the arresting officer will not take notes of the SFST’s while the defendant is performing them for the officer’s safety. In fact, the NYPD will not even perform roadside tests due to officer safety.

– The SFST’s that are performed at CTU when a defendant gives a breath sample will not be videotaped by the Nassau County Police Department, despite the fact that they have an operable video camera in the room where they are performed which can videotape the entire SFST’s and are used for refusal cases. The reason the NCPD does not videotape these tests is because they want the juror to focus on the BAC reading and not have the ability to actually see the defendant’s appearance and performance for themselves as this can create weaknesses with regard to the officer’s allegations as to the level of your client’s intoxication.

– (3) The Machine.

The Two Hour Rule. The Applicability of the Two Hour Rule to a consented to test is now in question. A Chemical Test administered exactly two hours after the time of arrest or a positive alco-sensor test is considered “within” two hours pursuant to V.T.L. § 1194.2(a)(1). People v. Zawacki, 244 A.D.2d 954 (4th Dept. 1997). The Court of Appeals held inPeople v. Atkins, 85 N.Y.2d 1007 (1995) that the two-hour rule was inapplicable to the blood test taken in that case since the defendant expressly and voluntarily consented to the test. This decision is problematic for several reasons. First, it must be noted that the defendant consented to the test within the two-hours, but it was not administered until 2:28 minutes after his arrest. Second, the Court fails to address the Department of Health Rules and Regulations which clearly impose a two hour time limit on sample collection. This is important as the reason the DOH requires a two hour rules goes to the reliability of the samples ability to accurately reflect the defendant’s BAC at the time of the stop.

– Pursuant to V.T.L. § 1994.4(c) the DOH is required to files rules and regulations regarding the collection and chemical analyzing of a person’s BAC. The DOH’s Rules and Regulations for chemical analysis of a breath, blood, urine or saliva sample are found in 10 NYCRR § 59 and notably requires that all chemical samples be collected within two hours of the time of arrest or two hours of a positive breath screening test if the sample is breath. It seems clear that the defendant may challenge the reliability of such tests pre-trial. Chemical tests consented to after two hours from the time of arrest or positive alco-tests are suppressible and properly subject to pre-trial motions. People v. Ayala, 89 N.Y.2d 874 (1996). The Court of Appeals found that C.P.L. § 710.20(5) encompasses any chemical test even though the statute refers to a challenge to suppress the results of the defendant’s “blood” administered in violation of V.T.L. § 1194.3 or any other applicable law. However, just because the consented to test was taken in excess of two hours does not render the test inadmissible, it is the burden of the People in such situations to establish “at a hearing, by expert testimony, scientific evidence that a BAC test taken more than two hours after arrest is competent, reliable and probative of the fact that the defendant was impaired or intoxicated when he operated a motor vehicle before such results may be admitted as relevant evidence at a trial.” People v. Victory, 166 Misc. 2d 549 (NY Crim. Ct. 1995).

– Mouth Alcohol. The defendant in Nassau will almost always be tested on an Intoxilyzer 5000, which or Drager AlcoTest 7110 MK III. Both machines suffer from the same inherent problems despite the fact that the Drager uses two different methods to test the level of alcohol. Both machines have an inherent error of plus/minus .01 BAC.

– Both machines suffer from the problem of mouth alcohol. When a person ingests alcohol some of the alcohol stays in the persons mouth and can take as long of 15 minutes or more to dissipate. Further, if the defendant burps or regurgitates in any way drawing gas up from his/her stomach, the effect is similar. When the machine analyzes the sample, it is unable to distinguish between whether the sample it is analyzing is a correct sample from aveolar air, which is deep lung air, and mouth alcohol, that is alcohol in the mouth or gases raised from the alcohol in the defendant’s stomach. Mouth alcohol artificially elevates the test result by causing the machine to misread the amount of alcohol present in the breath sample as a much higher level than what the defendant’s actual BAC causing a false high positive reading.

– Both the Intoxilyzer 5000 and Drager Alcotest have a device which is supposed to detect mouth alcohol which is called a slope detector. The device is designed to detect mouth alcohol by detecting sharp rises followed by sharp decreases in the reading levels during the 5 to 6 seconds the defendant is blowing the sample into the machine. If the machine detects mouth alcohol, it should shut the test down and register an “Invalid Sample.” Studies have shown that the slope detector works approximately 20% of the time, however, more often that not it fails to detect mouth alcohol.

– The Intoxilyzer 5000 may also come up with a “Deficient Sample – value printed is highest value obtained” result. The deficient sample occurs when the defendant fails to blow long enough for the machine to analyze aveolar air which gives the most accurate reading possible. In theory, the reading given by the machine will give a reading which is equal to or lower than the reading which would have been obtained from a sufficient deep lung air sample. In People v. DeMarasse, 85 N.Y.2d 842 (1995), the Court of Appeals held that such a sample is admissible and the fact that it is a deficient sample goes to the weight of the evidence. The Court reasoned that so long as the Intoxilyzer 5000 machine was otherwise functioning properly, the defendant to some extent benefits as the result will always be equal to or lower than the defendant’s true BAC. However, the defendant failed to present evidence of the fact, and the Court failed to consider the fact, that when Intoxilyzer 5000 is operated in the deficient sample mode, the slope detector does not work and there is no device to screen for mouth alcohol at any level.

– The manufacturers and the police departments implicitly admit their awareness of the problem of mouth alcohol even when the slope detector is working by requiring a 20 minute waiting period prior to the administration of a chemical breath test. In fact, the machines can be, and often are, designed to require the breath test operator to answer several questions before running a test such as “Was a 20 minute waiting period performed?” and “Will the sample be collected at least 20 minutes after arrest?” If the operator fails to answer in the affirmative, the machine will shut the test down. This, of course, fails to stop police officer, particularly the State Police, from answering in the affirmative to these questions even when they don’t perform a 20 minute waiting period, sometimes when they don’t even know what one is!

The 20 Minute Waiting Period. The Police Officer is supposed to seat the defendant in an area where the defendant has no access to anything that the defendant can place in his/her mouth. The Officer should direct the defendant to not place anything in their mouth, not belch, burp or regurgitate in any manner for the next 20 minutes. The Officer should then intently watch the defendant to ensure that no of these things happen. In theory, any mouth alcohol that is present during the beginning of this period should dissipate and no new mouth alcohol should be created.

– The reality is that police officer’s rarely actually do this, more often that not they prepare paperwork, log the defendant into the precinct or just wait 20 minutes and then do the test. Generally, Nassau County Police Officers will read the consent to take a chemical test with the breath technician present, get authorization from the defendant, and wait 20 minutes before sending the defendant for the chemical breath test. They will testify that the did the test, but I have still yet to have met the defendant who has told me the officer performed this. The State Police often don’t even bother to do so in most cases, in fact, you often will see the State Police do the chemical breath test in less than 30 minutes after arrest. More often than not, 30 minutes will not be enough time for the Trooper to drive the defendant to the Police Barracks, log the defendant in, and still have 20 minutes to perform an observation period.

(4) The Refusal Hearing – The issues for the refusal hearing are the same that you move for at the pre-trial hearing, that is, did the officer advise the defendant of the consequences of the refusal to take the test in “clear and unequivocal language” and did the defendant persist in his/her refusal to take the test.