Ithaca Elmira DWI lawyer: ADVANTAGES of DMV Refusal Hearing for DWI in NY(Part 2)

NOPE = REFUSAL  :-)

ADVANTAGES of the New York DMV Refusal Hearing for a DWI Refusal Case (Part 2):  Cross-Examining the Main Police Witness (before the criminal case starts!)

OK, welcome back!  This is part two of my series on the Advantages of the New York DMV Refusal Hearing for a DWI Refusal case.   In PART ONE, I gave an overview of the process and where these hearings are held throughout New York state.  However, in this section, I will explain and highlight the Cross-Examination of the principal police witnesses for the prosecution during the DMV administrative refusal hearing... and why it is a huge advantage for the defense of the main criminal DWI case. 

WHICH OFFICER(S) SHOW UP AT THE ADMINISTRATIVE REFUSAL HEARING? 

Obviously, who shows up varies from refusal case to refusal case.  Sometimes one officer comes to the administrative DMV hearing.  Sometimes two officers show up.  Sometimes nobody shows up (but we will cover that later).  You'll see in a minute why we want them to show up...

Usually the officers who were involved in the stop of the car and/or the primary officer involved in the arrest are the ones who come to the DMV refusal hearing in NY.  That's a good thing --and I will go on to explain why.  

WHAT SORT OF STUFF WILL THE POLICE OFFICER TESTIFY TO AT THE NY DMV REFUSAL HEARING?

In order for the Administrative Law Judge to determine if there is a legal refusal of the chemical test, the police have to establish some basic stuff through their testimony: 

1-that they had probable cause to suspect you were drunk driving

2-that they had probable cause to arrest you for drunk driving

3-that they gave you sufficient warnings that you would lose your driving privileges if you refused to take the chemical test back at the station/hospital.  

4-that you legally refused (either express or implied refusal)

So those 4 things are the crux of what they need to talk about... but they usually go into more detail based on their report (which they usually have with them).  In my experience, most officers will talk about why they stopped the car, talk about how they smelled alcohol on the driver, how the driver had slurred speech/watery eyes, and then they will talk about whatever Field Sobriety Tests they gave the driver.  

Once they finish how the stop and arrest happened, they will go into what happened back at the police station.  They usually will testify that they read the standardized MIRANDA warnings and the standard DWI Refusal Warning off a little card that they keep in their pocket--this is the text of the DWI Refusal Warning (forgive the length --its not my fault):

1. You are under arrest for Driving While Intoxicated

2. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are convicted of the charge for which you were arrested.

3. If you refuse to submit to a chemical test, or any portion thereof your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest. 

4. Will you submit to a chemical test of your (breath/blood/urine) for alcohol?  ( or will you submit to a chemical analysis of your blood/urine for drugs?)   

Generally, in my experience, if the officer reads from the card at least once, then the hearing Judge will find that the warning was sufficient.  Most officers read it several times over a period of time. 

Finally, the officer testifies about your refusal of the test.  They will say what you said if it was an express refusal (like the driver said "No") or what you did if it was an implied refusal (i.e. we asked three times and each time the driver remained silent, etc).  They also have to bring a piece of paper called the "Report of Refusal."  This typically has the times the warning was read to the driver and what they said. 

WHAT THINGS DO WE CROSS-EXAMINE AT THE DMV REFUSAL HEARING IN NY?

It is a significant advantage for our defense of your CRIMINAL CASE to cross-examine the main police witness at the DMV Refusal hearing in New York.   How come?  

We get to see several important things before the criminal case really gets going.  For starters, we get to evaluate how competent a witness the arresting officer is going to be in a trial situation.  "Know thy adversary."  The more time and more questions we can ask them at the administrative DMV hearing, the better we can learn their strengths and weaknesses.  Some officers are terrific witnesses -- they're confident, speak clearly, and know their stuff.  Others are less so.  It is critical for us to get a sense of how they will perform if we have to push the case toward a suppression hearing or trial on the criminal DWI charges.  It's like the old NBC slogan, "the more you know..."

Remember, at the DMV refusal hearing the Officer is placed under oath so s/he must tell the truth or perjure himself/herself.  That's why it is important to get their testimony on the record being created by the Judge so we can make sure they don't change it during the criminal case.  We can get the audio recording of the hearing after it's done if necessary.

Specifically, we always cross-examine the officer on the stop of the car.  Even though a police officer can (pretty much )stop anybody legally in a car in NY,  we focus on the reason for the stop.  If your driving was pretty good and you got stopped for a light being out or a loud muffler etc, then we want to have him admit that your driving was otherwise fine.  

We will ask questions about how you answered their questions right after being pulled over.  In New York, the prosecutor must prove beyond a reasonable doubt that the driver did not have the MENTAL and PHYSICAL capability to reasonably operate a motor vehicle.  Therefore, if we can get the officer to admit during the DMV hearing that you were "coherent" then we can use that in defending the criminal case.  

We ask questions about the standardized field sobriety tests they gave the driver--more on this in a future blog post in this series. 

Finally, we ask about any specific issues as part of the case.  I just had a case where my client got into a car accident and smacked her head during the crash.  It came out a couple days later that she had a concussion --however, the police still forced her to do Field Sobriety Tests.  I got the officer to admit that somebody with a concussion would be unable to reasonably do the tests and those tests would be unreliable.  That's one example of how we have to tailor every cross-examination to the best interest of the client and focus on important specific issues. 

Here's a basic list of topics we typically cross-examine at the DMV refusal hearing:

1.  Probable Cause to Stop Car

2.  How driver responded to basic questions (like license/registration request)

3.  Was driver "coherent" ? 

4.  Did driver walk under own power?  no stumbles/falls/trips etc

5.  Cross on Field Sobriety Testing (see future post)

6.  Cross on Refusal Warnings Given by Officer

7.  Cross on Miranda Warnings (if necessary)

8.  Cross on Refusal itself (express vs implied)

9.  Cross any specific issue to case that's important (i.e. injuries/disability etc)

Obviously, this is a very basic overview so that you (the reader) can get a sense of WHY the New York DMV administrative hearing is so important to the defense of a DWI refusal criminal case in this state.  

Although this hearing is technically only about whether the DMV should suspend the driving privileges of the suspected drunk driver, you can see it is about so much more...by getting a chance to cross the officer early in the criminal process, we can lock them into testimony later in the criminal case, and we can take away the officer's credibility if they testify differently later in the case... it's an advantage for our client. 

In my next post, I will give specific information about why it is advantageous to cross-examine the officer on the Standardized Field Sobriety Tests and how it can help the criminal DWI case in NY.  

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, 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. 

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*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.

Ithaca DWI lawyer: Lawyerin' in Elmira City Court

Elmira City Courthouse, Copyright CYR 2015

LAWYERIN' A DWI CASE IN 

ELMIRA CITY COURT

As part of my ongoing series about Courts I frequent, here is some information about ELMIRA CITY COURT.  

Elmira City Court is a very busy court in the Finger Lakes region of upstate New York.  They have criminal matters heard on a regular basis --and a special DWI day to handle the heavy caseload. 

*NOTE:  If you have a DWI in Elmira City Court, it is very difficult to get a hearing on whether there was probable cause to suspend your license (called a PRINGLE hearing). The Judges are extremely reluctant to entertain the issue --and only in very particular sets of circumstances.  Just fair warning. 

When you enter the Courthouse you go up a large staircase and on the 2nd floor are the two courtrooms.  If you turn LEFT at top of stairs you will enter the larger of the two courtrooms.  Smaller one is on right.  The clerk's office is just across the way from the top of the stairs. 

ADDRESS: 

317 E. Church Street 
Elmira, NY 14901
(Corner of Lake & Church Streets) 

Phone 607-873-9520

Fax 212-401-9240

Email: ElmiraCityCourt@courts.state.ny.us

Hours of Operation:

Monday through Friday 8:30 a.m. to 4:30 p.m.

Judges

Honorable Steven W. Forrest 

Honorable Ottavio Campanella


Chief Clerk
Casey Johnson   (who used to be a clerk in Ithaca Town Court! so we know Casey pretty well) 


Assistant District Attorneys assigned to Court:  

ADA Jordan Yorke 
ADA Sophie Marmor  (handles a lot of DWI's)
ADA Kevin O'Shea 
ADA Jason Cook

NOTE:  If you get there early and tell the Court Officer who you are, they will put you on the list to be heard.  It is mostly a first-come, first-serve basis.  If you are represented by counsel (which I suggest), they take Attorney cases first.

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi 

Ithaca Elmira Seneca DWI lawyer explains: When you SHOULD REFUSE the Breath test in NY

DWI Police Breath Test (image courtesy commons.wikimedia.org)

WHEN YOU SHOULD REFUSE THE POLICE DWI (chemical) BREATH TEST

IN NEW YORK...

This is a complicated topic.  People ask me this question all the time, and the short answer is:  IT DEPENDS.  

Every case is different, and every situation is different.  My best advice on this topic is to consult with a DWI attorney if you encounter this problem.  *You can ask the police to call your lawyer from the station.*

Unfortunately, many DWI arrests happen in the middle of the night where you cannot get a DWI attorney on the phone...or are too drunk to think about it.  

*You should also be aware that there are specific penalties both civil and in the criminal case if you REFUSE... 

For example, you automatically lose your license for a long period of time, you will owe significant civil fines, and most importantly, the prosecutor can use the evidence of your refusal as evidence of your guilt in the criminal case. *

I'll go through a few SPECIFIC SCENARIOS where REFUSING the breath/blood test would probably be in your best interests.  Again, it depends on the county and circumstances in each case...

1.  If you are facing a FELONY-level DWI charge.  You should PROBABLY refuse the breath/blood test. 

If you had a child in the car or were in an accident where somebody was seriously injured or killed someone, (or it is your SECOND DWI charge within a 10 year period), then it is probably in your best interest to REFUSE. 

The lack of a BAC number will make it harder for the Government to prosecute you, but not impossible.  Also, the penalties for felony-level charges are WAY WORSE than the consequences you will face for refusing the test.  It is a cost vs. benefit analysis.  

If you killed someone, then the police/court may COMPEL you to give a sample of your blood/breath.  So refusing will make no difference.

2.  If you are absolutely DRUNK OUT OF YOUR MIND, it is PROBABLY in your best interests to not have a BAC number to fight. 

Again, everybody is different.  We all metabolize and handle alcohol differently.  However, if you believe that you are really super drunk and your BAC % will be VERY HIGH, then it is probably in your best interests to refuse the test.  

This can help limit your criminal liability and give your defense attorney a fighting chance to lower the charge against you --if the police officers are not good on the witness stand.  You should know that sometimes a Refusal causes some local District Attorney's Offices to PUNISH YOU and PROSECUTE YOUR CASE HARDER... on principle.  

They don't want to give people a break for refusing the tests and the refusal makes prosecutors' jobs harder... 

COUPLE OF SCENARIOS WHERE YOU SHOULD TAKE THE TEST... 

-if you are charged with a DWI misdemeanor and have a CDL (commercial driver's license), take the test

[Refusing will make it harder to obtain a conditional license and you would have to remain on the conditional license for much longer than if you had just taken the breath test]

-if you have only had a couple of drinks over several hours (and your BAC number will be below 0.08%), take the test.  

[If your BAC number is below 0.08% or very close to it, then you will still likely face a criminal charge or violation, but your case is more likely to be negotiated to a good outcome by your DWI attorney]

BOTTOM LINE: 

These are general thoughts on when to REFUSE or TAKE THE BREATH TEST in a DWI case.  Consult with a DWI defense lawyer for the best advice on your particular situation.  Each case varies in each county where you are charged...because the prosecutors and police are different (and so are their sentencing policies).

BY:  Attorney Mike Cyr 

P:  607-229-5184
E:  mike.ithacadwi@gmail.com
www.ithacadwi.com
www.facebook.com/ithacadwi

Twitter:   @ithacadwi 

Ithaca Watkins Glen DWI Lawyer explains Why a REFUSAL in NY must be "PERSISTENT"

A DWI REFUSAL 

TO TAKE A BREATH or BLOOD TEST

IN NEW YORK 

MUST BE "PERSISTENT" 

In New York, we have a statutory right to REFUSE a police officer's request that we provide a sample of our breath or blood for alcohol & drug analysis in a DWI case... 

However, there are both rules and consequences that go along with any REFUSAL in a DWI case.  

Today, I'm just going to focus on one aspect of the RULES that govern the police when accepting a REFUSAL from a DWI suspect .... the requirement that the refusal is PERSISTENT. 

What does Persistent mean?  

"To continue steadfastly or often annoyingly, especially in spite of opposition"

This means a couple of things with respect to a DWI breath or blood request by the police.

1.  It means that you have to DECLINE to take the test once.  

2.  After you decline (but not before), the police are required to TELL YOU and WARN YOU about the consequences of refusing to take the test.  These warnings have to be clear and unequivocal --and you must understand them.  

3.  Then, after you have heard the warnings once, you are asked if you will submit to the breath or blood test.  

4.  If you refuse after hearing the warnings ONCE--then your refusal may be deemed "PERSISTENT." 

BOTTOM LINE: 

If you continue to REFUSE AFTER you have heard and understood the officer's warnings about the consequences of the refusal, then your refusal can be considered "persistent."

WHY IS THIS IMPORTANT?

If your refusal is deemed persistent, clear and unequivocal, and you understood it--then the prosecutor CAN USE THE EVIDENCE OF YOUR REFUSAL AGAINST YOU AT TRIAL. 

The jury can be given an instruction from the judge that they are to interpret your refusal to take the blood or breath test as "consciousness of your guilt" in a DWI case.  

However, there are some situations where REFUSING is the best course of action.  I'll cover that in another post.  It's complicated. 

[if you have questions about your case, give us a call or contact us and we will be happy to talk to you]

BY:  Attorney Mike Cyr 

P:  607-229-5184
E:  mike.ithacadwi@gmail.com
www.ithacadwi.com
www.facebook.com/ithacadwi

Twitter:   @ithacadwi 

Ithaca Vestal DWI lawyer explains REFUSAL Warnings Police Must Give You for Refusing a Breath or Blood Test

REFUSING A BLOOD OR BREATH TEST IN DWI CASE

DWI REFUSAL WARNINGS THAT THE POLICE MUST GIVE YOU IN NEW YORK

In New York, if you REFUSE a Blood Test or a Chemical Breath Test, then the police MUST give you several warnings before evidence of your refusal can be used against you at trial. 

This does not necessarily mean those warnings have to be BEFORE you refuse the test.  They can also be given to you AFTERWARD.  To make sure these warnings are given properly, many law enforcement agencies (including in Ithaca and surrounding counties) have standardized refusal warnings that use the language found in the law.  VTL s. 1194(2)

Model Refusal Warnings are generally:  

1.  You are under arrest for driving while intoxicated

2.  A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are convicted of the charge for which you are arrested.

3. If you refuse to submit to a chemical test, or any portion thereof, your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest.

4.  Will you submit to a chemical test of your breath/blood for alcohol?  or will you submit to a chemical analysis of your blood/urine for drugs?  

Couple of things to note: 

-the officer does NOT have to give these warnings unless you refuse a breath or blood test

-the officer is supposed to read them more than once, to give you an opportunity to "persist in your refusal."

-the warnings must be "clear and unequivocal" language (based on accused's understanding)  [if you do not speak English, this may be a defense]

ALSO, REFUSALS themselves can be determined by either "words or conduct."  {topic for a whole other post}

BOTTOM LINE--

The law surrounding REFUSALS in a DWI case is extremely complicated.  It will be the subject of several of my posts and videos.  That is why I recommend hiring a DWI lawyer if you are facing a DWI charge with a refusal to take a breath or blood test.  

Refusal cases can be very defensible if done right from the start. 

BY:  Attorney Mike Cyr 

P:  607-229-5184
E:  mike.ithacadwi@gmail.com
www.ithacadwi.com
www.facebook.com/ithacadwi

Twitter:   @ithacadwi