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Donald Kelly, Esq.Tully Rinckey PLLC

507 Plum Street, Suite 103Syracuse, New York 13204

315-492-4700dkelly@1888law4life.com

An Overview of DWI & Other Alcohol Related Offenses

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About Your Presenter

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Tully Rinckey PLLC Managing Partner. Has over 17 years of experience practicing criminal law. Don has been lead counsel in several high profile homicide and

narcotics cases and has successfully secured outright dismissal of cases for clients charged with Murder and Class “A” Drug Felonies.

Don joined Tully Rinckey PLLC in 2012 after running his own criminal defense practice in Syracuse for a decade.

Don officiates scholastic football games in Central New York and serves as a Senior Hearing Examiner in the Syracuse Parking Violations Bureau where he adjudicates citizen complaints against the City of Syracuse regarding parking tickets.

Additionally, he is past Vice President of the Onondaga County Bar Association's Assigned Counsel Program Board of Directors.

The Stop/The Use of Roadblocks

Reasonable suspicion of criminal activity is a broad category encompassing any violation of law from equipment violations to felonies.– People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67,330

N.E.2d 39 (N.Y., 1975)– Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391

(U.S., 1979)

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In People v. Ingle, the defendant was a minor operating an antique car. He was pulled over because the police officer questioned whether the driver was in legitimate possession of an antique car.

Similarly in Delaware v. Prouse, the defendant was stopped as a result of a "routine traffic stop" The Court held that the police may not stop a vehicle as a matter of routine. "Absent an articulable reason or reasonable suspicion of criminal activity, such stops may not be made."

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Reasons Why Vehicle and Traffic Stops Have Been Invalidated:

Whren at first you don’t succeed, you invent . . .

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The Pretext Stop!Whren v. United States, 517 US 806 (1996)

People v. Robinson, 97 NY2d 341 (2001) – Adopting WhrenLaw Enforcement doesn’t necessarily need a good reason to effect a stop, they only need a legal reason. Even if they never have stopped anyone before for that legal reason before.• Obstructed View• Crossing a Fog Line• Failure to Signal within 100 feet of an intersection.• Failure to Dim HeadlightsEven if the officer admits that the VTL violation was a mere pretext for another investigation the stop is not invalidated so long as the officer observed a VTL violation

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In determining whether there is reasonable cause to believe that a person is driving while intoxicated, it is common for police officers to use field sobriety tests designed to test a person's coordination. People v. Sheridan, 596 N.Y.S.2d 245 (N.Y. App. Div. 4th Dep't, 1993)

There Is no legal requirement that a driver submit to the Field Sobriety Test but refusing to do so is not without consequence.

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Field Sobriety Tests:

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The Court of Appeals has held that evidence of a defendant's refusal to perform sobriety tests is admissible despite the existence of Miranda warnings. The Court found that the refusal is not contemplated within the meaning of the Self-Incrimination Clause. People v. Berg, 92 N.Y.2d 701 (N.Y. 1999).

It is often better to keep one’s mouth closed and be thought a fool than to open it and prove the point. If the case goes to trial it is easier to rebut the presumption that it is to rebut the proof.©2015

Use of Consciousness of Guilt for Failure to Perform Field Sobriety

Tests:

Horizontal Gaze Nystagmus (HGN)– Like being able to float in salt water easier,

the addition of alcohol to the fluid surrounding the eye impacts the way the eye moves through that fluid. The principal effect being a significant vibration of the eye as it moves to points of maximum deviation.

– Other Factors can mimic the condition (such as a neurological disorder). Also subject must be facing away from any source of flashing lights.

– 77% Accuracy Rate

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The Standardized Field Sobriety Tests:

Walk-and-Turn (WAT)• Subject is requested to take 9 steps in either

direction with a choppy pivot in the middle.• This test was standardized using a flat dry

surface with a painted or tape line – in practice it is often a wet inclined surface with an imaginary line. It is arguable that the test is not probative unless administered under the standardized conditions. Use of an expert witness is key.

• 68% Accuracy Rate under optimal conditions

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One-Leg Stand (OLS) The subject is asked to raise one leg so that

the foot hovers approximately 12” off of the ground.

Subject is instructed to count aloud while holding the foot off the ground.

The subject is not informed how long the officer expects the subject to count with the foot raised.

Same test condition difficulties that are faced in the walk and turn.

65% Accuracy Rate under optimal conditions.11

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If the Subject Fails All Three . . . The accuracy rate jumps to 82%. That is,

nearly one in five people subjected to the test will fail regardless of the fact that their individual BAC is less than .10%.

That standardized test cannot prove intoxication, it can only serve as proof that one’s blood alcohol level exceeds a certain threshold. At the time the tests were standardized the threshold was .10%. The tests have been neatly converted to prove blood alcohol over .08% without employing the scientific method. 12

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Don’t Forget . . . The officer administering the FST is also

looking for extraneous information (or mining probable cause) that are unrelated to the physical aspects of the test. The ability to follow direction, appropriately respond to questions and instructions, slurring words, behavior between tests and other matters may be used to convict at trial.

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Alcohol Breath Screen:• The most common type of device is the Alco-

Sensor, a portable pocket sized device regularly carried and used by police officers to help establish probable cause for a DWI arrest, and or to rule out the use of alcohol in a suspected DWAI Drugs case.

• A DWI suspect's breath sample does not constitute "evidence of a testimonial or communicative nature." And therefore the Alco-Sensor test does not implicate the Fifth Amendment. People v. Brockum, 88 A.D.2d 697,451 N.Y.S.2d 326 (3d Dep't 1982). In fact, the alco-sensor result itself is inadmissible at trial.

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Chemical Tests: The term is used to refer to a test of the

alcoholic and/or drug content of a DWI suspect's blood using an instrument other than a preliminary breath screening device. Since 1954, the most common type of breath test device used in NY was the Smith & Wesson Breathalyzer Model900 A.

However, the Breathalyzer is now considered outdated and is no longer in use. Modern breath test devices use a process known as infrared absorption spectrometry.

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The Two Hour Rule:• The Two Hour Rule provides that a chemical test must

generally be administered within 2 hours of either the time of arrest for a violation of VTL §1192 or the time of a positive breath screening test, whichever is later. People v. Zawacki, 665 N.Y.S.2d 172 (N.Y. App. Div. 4th Dep't, 1997)

Waiver/Exceptions to Two Hour Rule:• However, when a chemical test is administered more

than two hours after arrest, the results are inadmissible at trial without expert witness testimony demonstrating that the delayed result is indicative of the defendant's BAC at the time of operation.

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At any given temperature, the ratio between the concentration of alcohol in the blood and that found in the alveolar air in the lungs is constant. People v. Jones, 461 N.Y.S.2d 962 (Albany Co. Ct., 1983).

This ratio is not consistent among the population and the ratio varies from person to person.

The threshold BAC currently deemed to constitute legal intoxication in NYS is .08%. VTL § 1195 sets forth the standards with regard to chemical test evidence.

Henry’s Law:

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First, like a refusal to take the FST the refusal can generally be used against the defendant in a VTL §1192 prosecution as "consciousness of guilt" evidence.

Second, the refusal is a civil violation in and of itself, which results in proceedings before a DMV Administrative Law Judge ("ALJ"), where if the defendant is found to be in violation, a mandatory one year driver's license revocation, and a $500.00 civil penalty are assessed. VTL§1194(2) sets forth the penalties for refusal.

Third, the civil penalties above are preferable to a prison cell.

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Refusal:

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Probable Cause: CPL §140.05 sets forth the statutory authority for a warrantless arrest. CPL §140.10 defines the power of a police officer to make a warrantless arrest.

Upon arrest for DWI, the police may search the defendant's person incident to the arrest, and thereafter can potentially search the defendant's vehicle under the automobile exception to the warrant requirement.

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The Arrest:

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One of the essential elements of a VTL §1192 charge is "operation“ of a motor vehicle. This issue can be of great significance, where there is an accident and no operation is observed, the driver is found sleeping or unconscious behind the wheel, and or there are several passengers in the vehicle. People v. Marriott, 37 A.D.2d 868 (3d Dept. 1971).

Operation can be proved by circumstantial evidence.

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Operation:

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§1192 (1) DWAI The elements of DWAI

are:– i. Identification– ii. operation;– iii. motor vehicle– iv. while;– v. impaired by

alcohol.

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The Offense §1192(2) DWI; per se §1192(2-a)

Aggravated DWI: §1192(4) DWAI/Drugs:

– Drug Recognition Expert (DRE):

§1192 (3) DWI; Common Law:

The elements of common law DWI are:– i. Identification;– ii. Operation;– iii. Motor vehicle;– iv. While (i.e.

operation and intoxication must be simultaneous); and

– v. Intoxicated by alcohol.

§VTL 1192(2-a)(b) Leandra's Law

Zero Tolerance Laws: VTL §1192-a,

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Accusatory Instruments: Pursuant to N.Y. Crime Proc. Law §100.05 a criminal action may be commenced by the filing of an accusatory instrument with a criminal court.– i. that the defendant operated the vehicle;– ii. that the defendant was intoxicated; and– iii. that the operation and the intoxication were

simultaneous. Where a defendant is charged with common law

DWI despite the existence of a BAC reading of less than .08%, the accusatory instrument must do more than follow the "check sheet" format of the standard DWI supporting deposition.

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The Prosecution:

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The primary factors that an ADA considers in arriving at a proposed disposition are:– i. the charge and the facts upon which it is based, including

whether there was an accident;– ii. the defendant's age;– iii. prior record;– iv. chemical test result, or refusal; and– v. circumstances of the arrest, including the defendant's

attitude and behavior at the scene.● Limitations on Plea Bargaining – Onondaga County

• Felony Plea Required for Leandra’s Law• DWI Plea Required where original charge was Aggravated

DWI• Aggravated DWI plea required where BAC exceeds .20%

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Plea Bargains:

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§1193(2) (e) (7) is known as the "prompt suspension law" which is generally applicable to a defendant who is charged with DWI and who is alleged to have a BAC of .08% or greater.

§1193(2) (e) (1), is applicable to a defendant who is charged with DWI, aggravated DWI, DWAI drugs, or DWAI combine d influence and who either 1. has been convicted of any violation of VTL §1192 within the preceding five years, or 2. is charged with vehicular assault or vehicular homicide in connection with the current incident.

§1194(2) (b) (3) is applicable to a defendant who is charged with a violation of VTL §1192 and who is alleged to have refused to submit to a chemical test.©2015

Suspension Pending Prosecution:

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A civil administrative proceeding separate and apart from the underlying criminal action, but which runs parallel to. The purpose of the hearing is to dispute the existence of reasonable cause to believe that the defendant had a BAC of greater than or equal to .08%. Pringle v. Wolfe, 88 N.Y.2d 426 (N.Y., 1996).

Non-Hearsay Allegations of Fact are required, therefore the BAC Report must meet the business record exception to the hearsay rule. Must be an original (or certified copy) and have a proper business records certification (even if it is a legal fiction).

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Pringle Hearing:

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VTL §1193(2)(e)(7)(e) provides that if the court finds that the suspension imposed pursuant to the "prompt suspension law" will result in extreme hardship to the defendant, the court may grant a hardship privilege.

Hardship allows driving to and from work but does not permit driving “for” work (such as from construction sit to construction site).

Attorney Affidavit with Client Certification will ordinarily suffice in Onondaga County.

Where a driver's license is suspended pending prosecution the DMV may grant a conditional license, 30 days after such suspension takes effect.

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Hardship Hearing:

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Questions?

Donald Kelly, Esq.Tully Rinckey PLLC

507 Plum Street, Suite 103Syracuse, New York 13204

518.640.1288 (direct)dkelly@tullylegal.com