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Court Rules on DWI Case


A police officer had just gone off-duty and had changed from his police uniform to civilian clothes. He got into his car and was driving home. When he reached an intersection with a stop light, he stopped and waited for the light to turn green before he turned left. As he was turning left, a big SUV came at high speed and ran the red light. A New York DWI Lawyer said that the officer had to stop and turn sharply to avoid being blind-sided by the SUV that ran through the red light.
The officer then followed the SUV as it ran two more stoplights. At one of the stoplights, there were people crossing the street who had to jump out of the way so as not to be hit by the SUV. The SUV stopped a few blocks later in front of an auto body shop. The officer got out of his car and talked to the driver of the SUV. He showed the driver his shield and asked for the driver’s license and registration but the driver refused. The off-duty officer smelled a strong odor of alcohol on the driver. The officer then told the driver to remain in his car.

The driver did not heed the officer’s instructions. He got out of his car as did all of his passengers. They began chanting that the officer could not arrest them because he was off-duty. So the off-duty officer called the 45th Precinct to send officers to arrest the driver.
When the driver was brought to the 45th Precinct, the arresting officer assigned to do the paperwork for his arrest (not the same officer who was nearly run over by the driver’s SUV) noted a strong alcohol smell on him. The driver who was arrested was verbally abusing the officers in the precinct. A New York DWI Lawyer said he had to be handcuffed to a railing to keep him from hurting himself. But he was still flailing about and kicking his legs, screaming and cursing at the police officers in the precinct. The arresting officer tried to calm down the driver but he was unsuccessful so he handcuffed the driver’s other hand to the railing as well.

The driver was then taken to the room where he would take an Intoxylizer examination. There was a camera in the room and the driver was recorded from the time he was arrested after midnight until 6:00 a.m. the next day.

The driver clearly stated that he wanted for his lawyer to be present. The officer then asked him if he had the name of his lawyer and the driver gave the police officer the name of his lawyer. The officer told the man that he would call his lawyer if the driver had the lawyer’s number. The driver then said that he did not have his lawyer’s number memorized. As the driver tried to explain, the officer interrupted him. The police officer said to the driver that his right to an attorney is not an absolute right. Then the officer asked the driver if he wanted to take the Intoxylizer test. When the driver said that he did not want to take the test, the police officer warned him that his refusal to take the test will be noted into evidence and be used against him. The driver still refused to take the test.

Two hours later, the officer removed the driver’s handcuffs and walked him around the room and then informed him that he was under arrest for driving while intoxicated. Then the officer asked him again if he wanted to take the Intoxylizer test and the driver still refused. The officer warned the driver that his license will be suspended immediately and the evidence of his refusal to take the test will be used as evidence against him. After this, the driver asked for his lawyer again.
While the tape was recording, the officer asked the driver to take coordination tests and the driver took them. The officer then read the driver his Miranda rights and the driver answered that he understood his rights. The officer then asked the driver if he wanted to answer some questions and the man said that he did not want to answer any questions.

A Nassau County DWI Lawyer said that after this the driver was put in a holding cell just a short distance away from the desk where the officer was writing out his report of the arrest. The driver kept yelling and cursing at the officer who periodically told him to calm down and keep quiet so he can finish his paperwork and get the driver out of there. This happened about six times throughout the whole night. The officer kept telling him to calm down. Finally the driver audibly said that he had only four shots of Hennessy that night.

At trial, the driver asked that the evidence his refusal to take the Intoxylizer test be suppressed. He also asked that his admission that he had four shots of Hennessy be suppressed as well. He reasoned that when he asked for a lawyer and he was not given one, his rights under custodial investigation were violated and all evidence obtained during that custodial investigation without his lawyer should be suppressed as they were obtained in violation of his rights.

The Court began by stating that the off-duty officer who tailed the driver after he was nearly blindsided at a stoplight had probable cause to follow the SUV and to stop its driver and place him under arrest. The officer personally witnessed the driver violate traffic rules and endanger the lives of pedestrians and motorists. When the off-duty officer talked to the driver, he noticed the strong smell of alcohol on the driver’s breath. Since there was probable cause for the driver to be arrested, the evidence obtained is not the fruit of an illegal arrest.

The evidence of the driver’s refusal to submit to a breath analyzer however cannot be admitted into evidence against the driver. It was clear from the recording that the driver kept asking for the police to contact his lawyer but the police would not. While it is true that the driver did not have an absolute right to have his lawyer present with him in the precinct to advise him whether he should take the test or not, when the driver asked for them to contact his lawyer, they should have at least tried to find his lawyer. The police even talked the defendant out of wanting to consult with a lawyer of his choice. Even if the test had to be performed within two hours of his arrest, the police could have contacted the driver’s lawyer and they could have consulted by telephone. That way, the driver’s choice to take the test or not would have been an informed choice. For this reason, the Court ruled that the driver’s refusal to take the breath analyzer test cannot be used against him.

Lastly, the Court discussed whether the driver’s outburst, telling the officer that he had only had four shots of Hennessy, should also be suppressed. From the video-taped proceedings in the precinct, it is clear that the driver was not under custodial investigation when he made the outburst. The officer was not asking the driver any questions. The police officer had repeatedly tried to calm down the verbally abusive driver by telling him to stop talking so that he can finish the paperwork and get him out of the holding cell faster. The police officer tried to do this about six times during the night. The driver went on and on yelling and screaming protesting his arrest stating that he did not have much to drink and should not have been arrested. So finally the police officer got fed up with the verbal harangue he had been receiving from the driver and told him that he did not care how much he had drunk that night, but he had to calm down so he can finish the paper work. It was at this time that the driver so audible said that he had only had four shots of Hennessy.

His declaration was clearly spontaneous and unprovoked. The officer never asked him a question as to how much he had had to drink that night. The officer was, in fact, telling the driver repeatedly to calm down and to stop talking and to stop yelling. This outburst of the driver, although it was an admission, was never forced or wheedled out of him: he himself made that declaration. Thus, the Court ruled that evidence of the driver’s outburst admitting that he had had four shots of Hennessy is admissible into evidence against him.

Do you know what you should do if you were stopped by a police officer and subjected to a sobriety test? You should call a New York DWI lawyer. At Stephen Bilkis and Associates, they have trained attorneys who are ready to assist you and be with you in the precinct if you have been arrested for driving while intoxicated. Call Stephen Bilkis and Associates and ask to speak to a trained lawyer today.

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