Articles Posted in DWI / DUI

People v Kanhai

Court Discusses Whether Business Records are an Exception to the Hearsay Rule under the Principle of Crawford v Washington

The criminal defendant was arrested and charged for one count of of driving a motor vehicle while impaired by alcohol DWI under section 1192(1) of the Vehicle and Traffic Law. At the defendant’s bench trial, the defendant objected to the use of the exhibits which contained statements of individuals who were not called to testify. The defendant also objected to the use of the certified copies of field inspection reports, and the simulator solution lot analysis by police department technicians and scientists on the breath analysis instrument used in defendant’s breath alcohol test. The defendant relied on the Crawford v Washington 542 US 36 [2004], in his objections as the admission of the statements into evidence violated his Sixth Amendment of the United States Constitution. The defendant argued that since he was not permitted to cross-examine the maker of the statements, who were the actual technicians, the documents were impermissible hearsay. According to defendant, the Crawford eliminated that the business records are an exception to the hearsay rule.

Continue reading

Reilly v. Hults

Court Discuses the Revocation of Driver’s License after Refusing to Submit to a Chemical Test

The Motor Vehicle Commissioner appealed the annulment of the revocation of the defendant’s license by the Commissioner after he refused to submit to a chemical blood test to determine the alcohol content of his blood for driving while intoxication DWI. The commissioner appealed to review and annul the findings of the Supreme Court dated October 20, 1961, under article 78 of the Civil Practice Act.

People v. Viano

Courts Discusses Whether Failure to File a Special Information was Fatal to a Felony Charge of Driving While Intoxicated

The defendant was indicted with driving while intoxicated as a felony, pursuant to Vehicle and Traffic Law § 1192(3). The defendant was previously convicted for driving while intoxicated prior which elevated the charge from a misdemeanor to a felony. However, the prosecution failed to file a special information regarding the defendant’s prior conviction at the same time as the indictment, pursuant to section 200.60 of the Criminal Procedure Law. The trial judge, after the defendant’s Queens County Criminal Attorney objected, granted the request of the prosecution to file the special information prior to the close of the People’s case. The defendant was convicted and appealed.

Continue reading

People v Batista

Court Discusses Whether the Defendant Fulfilled the Requirements for the Judge to give the Jury a Missing Witness Charge Instruction

The defendant was arrested and indicted for driving while intoxicated as a felony DWI, unlicensed operation of a motor vehicle and unlawful possession of marijuana. The charges arose when the defendant drove into a parked car after reversing through an intersection. The accident was witnessed by the owner of damaged car and another person came to call the police. The police officer upon arrival observed that the defendant had bloodshot watery eyes, slurred speech, was unsteady on his feet and had a strong odor of alcohol on his breath. The defendant took a chemical test and registered a .141 blood alcohol content. The defendant also did not have a valid license to operate the motor vehicle and possessed marijuana. A jury convicted the defendant of counts and he appealed. The defendant appealed on the grounds that the court failed to give a missing witness charge and prosecutorial misconduct.

Continue reading

People v Bolson

Court Discusses Whether a Family Member can be classified as a victim within the meaning of Section 390.30 (3) (b) of the CPL

The defendant was convicted of driving while intoxicated but acquitted of manslaughter and vehicular assault. The defendant’s Queens County Criminal Attorney during the sentencing hearing made an objection regarding the inclusion of a victim impact statement in the presentence report by the family of the deceased. It was argued by the defendant’s counsel that report was not necessary because the defendant was acquitted on the charges involving the deceased. It was further contended that the letter was improperly communicated to the court by the deceased family and should not be considered by the court in determining his sentence.

Continue reading

Feng v. Tao

Court Discusses Summary Judgment Motion in a Four Chain Car Accident

The plaintiff was involved in a four-car chain car accident while stationary at the red light. The first defendant requested summary judgment as he asserted that he was not liable for the injuries the plaintiff suffered as his motor vehicle which was behind the plaintiff was propelled into the vehicle. The defendant also claimed that the fourth driver was convicted for driving while intoxicated DWI as a result the accident occurred because of his negligence in failing to maintain a proper lookout, failing to maintain a proper speed and failing to keep a safe distance from the vehicle in front. The third driver moved for a cross motion for summary judgment as they were not liable for the accident as the drunken driver struck their vehicle.

Continue reading

In this Criminal action, at about 3:40 on the morning in October 1989, defendant was involved in an automobile accident on Grand Avenue in Balwin, Nassau County. A Police Officer responded to the scene and approached the defendant’s vehicle.

A Nassau County Criminal lawyer said that the Police Officer told the defendant to relax and not move because there was a piece of glass imbedded in his neck. When an ambulance arrived, defendant walked to the ambulance which drove him to the hospital. Defendant testified that he lost consciousness on his way to the hospital. Clearly, however, he was not handcuffed or in any other way restrained.

At the hospital, the defendant was taken to the Emergency Room. The Police Officer who rode with him in the ambulance accompanied him to the Emergency Room and remained with him. The Police Officer testified that there came a point at which he read the defendant the Nassau County Police Form 38 warning as to the consequences of his refusal to submit to a blood test and the defendant indicated that he understood. The defendant wrote “consent” on the form and signed it.

Continue reading

In this DWAI case, defendant was convicted of driving while intoxicated per se and speeding. At the trial, a Nassau County police officer testified that he was trained to estimate the speed of a moving vehicle and that, in March 2007 at 4:58 A.M., he observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had “one drink.” The officer administered a series of field sobriety tests, all of which defendant failed.

A Nassau County DWI lawyer said that the officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department’s Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of .11 per centum by weight.

Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2,100:1 “conversion” or “partition” ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person’s blood from the quantity of alcohol vapor detected in a breath sample.

Continue reading

In this Criminal action, DWI charges were commenced by filing simplified traffic informations and supporting depositions rather than misdemeanor informations. Under our law as it applies in this case, simplified information is “a written accusation by a police officer filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.”

If requested, sworn facts will be provided in a supporting deposition from the arresting officer which must “contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.”6 Importantly, this deposition must be “subscribed and verified.”7 The facts, however, need not be handwritten. Our highest court has sanctioned the use of “fill in the blank” supporting depositions in DUI cases noting that “the factual statements in the deposition are communicated by check marks made in boxes next to the applicable conditions and observations signifying the complainant’s allegations as to the existence of those conditions and the truth of those observations.”

It is within this legislative and common-law context that, as the millennium approached, several segments of state government began thinking about the opportunities presented by maturing computer technologies. The New York State Police and Department of Motor Vehicles started studying e-tickets and the efficiencies of data entry, transfer and retrieval which they presented.

Continue reading

The matter at bar is a civil forfeiture proceeding wherein the complainant woman who is claiming authority also happens to be a Suffolk County Attorney seeking the forfeiture of a 1967 Chevrolet owned by the defendant man.

The defendant man was arrested on June 23, 2006 for driving while intoxicated (DWI). He submitted to a blood test after being transported to the Hospital and it was determined that his blood alcohol level was 19%. Prior thereto, on January 11, 1984, the defendant man was convicted of driving while intoxicated (DWAI) in violation of Vehicle and Traffic Law section 1192.2. The said law prohibits any person to operate a motor vehicle while such person has 0.08 alcohol level in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva. Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. On October 26, 2006 he pled guilty to driving while intoxicated (DWI) and was sentenced to sixty days incarceration.

Suffolk County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

Continue reading