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Defendant Claims Officer did Not Have Probable Cause in DWI Arrest


A police officer was patrolling along Route 404 on January 12, 2005 at 2am. He saw a car going very fast and it was heading toward him. The police officer’s radar unit registered the approaching vehicle to be going at 55 miles per hour when the speed limit in the area was only 40 miles per hour.

A New York DWI Lawyer said the police officer made a u-turn and followed the speeding vehicle. The car turned right on Shoecraft Road and took another left turn into the parking lot of a drugstore. The car did not immediately park. It took a while before the car came to a stop. The officer took out his gun and pointed it toward the direction of the man whom he ordered to get out of the vehicle.

The police officer patted him down to check for weapons. When he was sure that the man had no weapons on him, he put his gun back in its holster. It was then that he noticed the smell of alcohol on the man’s breath, his red bloodshot eyes and his slurred speech.

The man volunteered that he drank a couple of beers after he had taken Sudafed. The officer then conducted field sobriety tests. He asked the man to recite the alphabet from “C” to “V.” The man just repeated the two letters. The police officer asked him to do it again. This time, the man recited the entire alphabet.

The officer then asked the man to do the walk and turn test. A New York DWI Lawyer said the man was unable to stay on the straight yellow line; he was not able to walk heel to toe; he raised his arms for balance and he turned the wrong way.

The officer then asked the man to perform the one leg stand test. The man was unable to keep his leg off the ground for more than 30 seconds. He swayed and hopped on both his feet.

The officer concluded that the man had failed the three field sobriety tests and arrested the man. He brought him to the police station where a breath test could be administered.

A police officer was assigned as a breath test operator. The result of the breath test indicated that the man had .15% blood alcohol content. The man was charged with speeding, driving while intoxicated per se and common law driving while intoxicated.

The arraignment of the man was held in abeyance as a probable cause hearing was conducted. The Court found that the police officer had probable cause in stopping his car and probable cause for conducting field sobriety tests on him; and probable cause for placing him under arrest for driving while intoxicated.

During the trial, the arresting police officer testified. The police officer who administered the breath control test was also presented. A Nassau County DWI Lawyer said both the lawyer for the defense and the district attorney stipulated as to the police officer’s certification as a breath test operator. During his direct examination the District Attorney asked the police breath test operator to identify the steps he had taken to check whether the breath control test device was functioning normally. The police breath control operator then enumerated the items on his checklist and submitted certifications attesting to the weekly calibration and analysis of the solution used in the breath control test. The District Attorney then asked that the certifications be marked as business records. The man’s lawyer did not object but reserved his right to cross-examine the police breath control test operator.

On cross-examination by the man’s lawyer, the police breath test operator testified that he was not present or involved in the preparation of the certifications he identified and submitted to the court. At that time the man’s lawyer objected to the admission of the certifications into evidence on the ground that their admission would deprive his client of his right to confront he witnesses against him.

The only question before the Court was whether the admission of the certifications would violate the man’s right to confront the witnesses against him. The Court held that the certifications were non-testimonial. That is to say, the certifications do not give testimony as to any fact in issue in the case. The certifications are mere business records entered into in the regular course of business. The breath test device was calibrated and checked each week and the person who checked it issued a certification as to the conducting of the calibration.

The person who issued the certification did not exercise judgment or discretion. The certifications did not express any opinion or make any conclusion. It is part of business records as it only contains the results of a well recognized test and mentions an objective finding.

The Court held that the certifications as to the weekly calibration were not sworn to or affirmed; they were not prepared exclusively for litigation purposes; they were not created directly to become evidence against a specific individual and they do not address facts in controversy that may be subject to interpretation or explanation.

The Court ruled that these were admissible as business records made in the regular course of business of a government agency.

At Stephen Bilkis and Associates, their New York City DWI lawyers will advise you that driving beyond the speed limit raises a reasonable suspicion in a police officer’s mind that you may be driving while intoxicated. A lawyer will also tell you that when a police officer smells alcohol son your breath and see your bloodshot eyes, the police officer has probable cause to conduct field sobriety tests. A qualified attorney will also tell you that if you fail a field sobriety test, you will be arrested for DWI. Call Stephen Bilkis and Associates today, ask to speak with any of their NY DWI attorneys. They are willing and available to assist you.

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