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Evidence Questioned in DWI Case


A man was arrested for DWI (Driving While Intoxicated) by a New York State trooper while on patrol in the City of Rome. The trooper observed a Chevrolet weaving within its lane and ½ car lengths into the other lane. The weather conditions were dry at that time. As the trooper proceeded westerly onto Rabbit Road he observed no violations, but after the vehicle turned left, he observed the vehicle go over into the other lane upon curves, and went over the center line once. The vehicle then proceeded where it was stopped at the direction of the officer. The testimony did not indicate at which time the defendant entered the City of Rome. Aside from the driver, there were two other occupants in the vehicle. The trooper approached the driver, identified as being the defendant, and noticed an average odor of alcohol upon his breath. The trooper asked the defendant to produce a license and registration which he did and then grabbed a cigarette from the passenger in the back seat.

A New York Criminal Lawyer said the trooper asked the defendant to step out of the vehicle so that he could ask him questions. Upon stepping out of the vehicle, the defendant used the door for support. The trooper then asked the defendant where he had been drinking and he responded that he drank in a bar. The trooper also asked him how much had he drunk and the defendant replied that he drank only one and added that he had a couple of beers and shots. He was asked where he was coming from and replied that he went to a funeral before going to a friend’s place.

The defendant’s license identified him. The trooper then asked if he would perform certain field sobriety tests to which the defendant agreed. The trooper conducted a horizontal gaze nystagmus test and stated his background and experience in conducting such tests. A proper foundation was laid for conducting the test for field sobriety purposes. A walk and turn test was conducted but the defendant lost his balance twice by using his arms, did not walk heel-to-toe, made a wrong turn, and walked off the line. The defendant failed the one-leg-stand test by putting his leg down, and a sufficient foundation was established primarily through the cross-examination. On the finger-to-nose test the defendant missed his nose once. An alcohol sensor test was conducted to determine any consumption of alcohol and it was positive for such.

The trooper arrived at an opinion that the defendant was in an intoxicated condition based upon his observations and placed him under arrest for driving while intoxicated. The defendant was advised of his rights and also as to the results of a refusal of the chemical test. The defendant indicated that he did understand his rights but no waiver of his right to counsel was established and the defendant did not agree to answer any questions. The defendant did consent to the conducting of a chemical test. The statements at the scene at the defendant’s own vehicle were knowingly and voluntarily made and were not the product of custodial interrogation.

The initial stopping of the defendant’s vehicle by the officer was a limited seizure subject to constitutional limitation. A stopping of a vehicle for a violation of the Vehicle and Traffic Law would constitute a reasonable suspicion for the stop, a valid exercise of the police power and police conduct which may be characterized as reasonable when balanced against an individual’s interest in being free from governmental interference.

An NY Criminal Lawyer said that the offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip. Furthermore, the Criminal Procedure Law makes the provision applicable to geographical jurisdiction between towns and cities. Accordingly, even though the underlying traffic infraction occurred in one city, the entire matter would be under the jurisdiction of another city.

The State may stop a vehicle and question its occupants for a legitimate reason. The stopping of the defendant’s vehicle was non-arbitrary and nondiscriminatory, since the officer observed the defendant operate his vehicle in violation of a provision of the Vehicle and Traffic Law pertaining to operation upon the right hand side of the highway. After stopping the vehicle, hearing the defendant admit that he had been drinking and detecting an odor of alcohol, the officer had reasonable suspicion to believe that the defendant was driving while under the influence of alcohol sufficient to request him to submit to field sobriety tests and the gaze nystagmus test.

The Alco-Sensor testimony was clearly not admissible to show intoxication. It is well settled that there must be a sufficient showing of reliability of the test results before scientific evidence may be introduced. Scientific evidence will only be admitted at trial if the procedure and results are generally accepted as reliable in the scientific community.

Likewise, a sufficient foundation was established as to the walk and turn test, the one-leg stand test, and the finger-to-nose test to use them for probable cause for the arrest, and also to be admissible at the time of trial for the jury’s consideration together with other factors. Thus, the law requires that whenever the court intends to offer evidence of the defendant’s statements to a public officer or testimony of observations of the defendant, they must serve notice of such evidence on the defendant within 15 days of arraignment and before trial. However, there are two exceptions to these requirements; the 15-day time provision may be waived for good cause and the notice may be excused if the defendant has in fact moved for suppression.

Clearly, a defendant cannot challenge what he does not know. Thus, the law requires that the notice specify the evidence intended to be offered. The notice served informed the defendant that the court intended to offer oral and written statements and specified the evidence as the law commands. Full copies of the statements need not be supplied but they must be described sufficiently so that the defendant can intelligently identify them.

Even if the court had found there to be inadequate notice, most of the statements were admissible against the defendant because he moved to suppress his statements and those statements were identified at the hearing addressing voluntariness.

Records revealed that the defendant was not in custody at the time he made the initial statements to the officer since the court finds at such a time a reasonable person, innocent of any crime, would have felt free to leave the presence of the police officer. Since the defendant was not in custody, it was not necessary for the officer at that time to advise the defendant regarding his rights.

The testimony of the officers as to their observations of the defendant and as to the trooper’s opinion that he was in an intoxicated condition provided reasonable belief on the part of the trooper that the defendant had committed the crime of driving while intoxicated or at least the traffic infraction of operating while impaired or the crime of operating a motor vehicle while having ten one-hundredths or more by weight of alcohol in the blood. The opinion of the officer was therefore sufficient to constitute probable cause for the arrest of the defendant and that the chemical test of the defendant’s blood by analysis of his breath was not the product of an illegal detention.

Accordingly, the defendant’s motion to suppress in all respects is denied.

Lack of information may result in a wrongful detention. If you find yourself arrested for sex crimes, a theft crime or drug crime, it is important that you know your rights. Stephen Bilkis & Associates can provide you free consultations and help you find the right approach to get you out of your wrong situations.

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