ADVANTAGES OF DMV REFUSAL HEARING IN NEW YORK (PART 4): GETTING EVIDENCE EARLY!
This is part four of my blog series on the Advantages of the DMV Refusal Hearing in a DWI Refusal case in New York...
Today, we're going to talk about getting evidence early in the DWI refusal case. Unfortunately, New York has archaic rules that do NOT allow criminal defendants to see or get all the evidence against them until somebody is about to testify against them. Say what? Yes, it's a very scary rule and I'll go into it in more detail in a future blog post. It's called the "Rosario" rule (based on a court case People v. Rosario).
So if the Prosecutor and police won't give us any evidence --how to we get a copy of the police report early in a DWI case? Well, some counties are better than others and have "open file discovery" rules. Tompkins County is pretty good about giving defense attorneys and criminal defendants their discovery on the early side of things --especially in DWI cases. However, other counties are not as good or willing to let us see the evidence we're entitled to see to help us defend the case...
That's where the DMV Refusal Hearing comes into play.
GETTING THE POLICE REPORT AT THE DMV REFUSAL HEARING
Most police officers bring their police report and the report of Refusal to the DMV Refusal Hearing in NY. They use their report to make sure they remember what happened for the stop and arrest and to make sure they don't make any mistakes and say something that didn't happen. Some officers remember every little nitty gritty detail from memory --but most don't.
When I get to a DMV Refusal hearing --I always ask to see the police report and Refusal report. If the cop declines to let me see it, then I'll make a motion on the record before we even start that if he's not willing to let us see it for cross-examination purposes, then he shouldn't be allowed to use it at all during the proceeding (to refresh his memory or any other reason). Usually that does it --and the Judge goes along with me getting to see the report. However, if the Judge does NOT, then we have to throw some case law at them...
Matter of Inner Circle Rest., Inc. v. New York State Liquor Auth. 30 NY 2d 541 (1972)
This is a case where a police officer refused to show his memorandum book to defense counsel in a civil hearing (similar the DMV hearing). The Court ruled that not allowing defense counsel to see the officer's book was enough to order a new hearing. I.e. it was wrong and unfair.
Garabedian v. New York State Liquor Auth. 33 AD2d 980 (1970)
Another liquor authority case where the officer refreshed his memory from a report he had written and sent to his superiors --but refused to give to defense counsel. The court ruled that it was inherently unfair to not allow defense counsel to see that report. i.e the officer must share the report if they even look at it to refresh their memory
Those two are the big cases that relate to getting to see the police report at the DMV hearing. However, the DMV has said that those rules don't apply to them. Fortunately, the DMV has it's own rules that work for us:
15 NYCRR s. 127.6 states (in pertinent part):
"Prior to a hearing a respondent may make a request to review nonconfidential information in the hearing file including information not protected by law from disclosure... If a request to examine the file is received less than 7 days prior to the hearing date, then requestor will be afforded an opportunity to examine the file immediately prior to commencement of the hearing...
So the rules are on our side as long as you know to make use of them. Occasionally, I get a Judge that doesn't know or understand these rules, but they usually come around when I cite these things for them. All we need is to see the report right before a hearing or right before we cross-examine the officer (or during).
WHAT'S SO IMPORTANT ABOUT GETTING THE POLICE REPORT EARLY?
It helps us know how to defend the case. We will get a sense of what direction the prosecutor will go on their case --and then we can devise a strategy on how to defend it. As I've said countless times, the more information we have, the better we can defend somebody. Knowledge is power. Getting a report earlier than we would normally get it is never a bad thing.
By Mike Cyr
Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.
If you have questions about a marijuana charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:
607-229-5184
BY NEWMAN & CYR
Or find us online!
www.ithacadwi.com
www.watkinsglendwi.com
www.facebook.com/ithacadwi
www.twitter.com/ithacadwi
DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom.
*Attorney advertising
*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.
If you have questions about a marijuana charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:
607-229-5184
BY NEWMAN & CYR
Or find us online!
www.ithacadwi.com
www.watkinsglendwi.com
www.facebook.com/ithacadwi
www.twitter.com/ithacadwi
DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom.
*Attorney advertising
*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.
