When you or one close to you is faced with a criminal charge you need more than just a lawyer. You need a lawyer who has years of criminal law experience and is familiar with the criminal court in the jurisdiction in which the case is going to be brought. The only way to guarantee that your rights are protected and that you are being properly represented is by speaking with an experienced criminal lawyer. If you or one close to you has been arrested or charged with a misdemeanor or a felony contact WYLIELAW.

Drinking and driving is legal in every state in the United States. However, each state has specific limits of drinking, above which, driving is illegal. Once an individual's blood alcohol level has surpassed specific levels, they may be charged with driving while ability impaired (DWAI) or driving while intoxicated (DWI). In New York, driving with a blood alcohol level between .08 and .10 would be considered a (DWAI) offense. In New York driving with a blood alcohol level of .10 or greater would be considered a (DWI) offense.

If you are charged with driving while intoxicated and your blood/alcohol content is alleged to be .10% or higher, the judge who arraigns your case will take your license from you and suspend it pending the outcome of the case.

A lawyer can request that the judge not immediately suspend your license by asking for a 20-day stay. That would allow you to apply for a conditional license that would allow you to drive to school or work pending the outcome of the case.

You may also be guilty of DWI/DWAI for driving when your physical abilities are impaired by drugs or a combination of drugs and alcohol. In the eyes of the law, it makes no difference whether the drug is legal or illegal, prescription or over-the-counter. If taking that drug impacts your senses of seeing, hearing, talking, walking and/or judging distances, you may be guilty of a drunk driving offense.

DO I NEED A LAWYER OR CAN I REPRESENT MYSELF?

You can represent yourself -- although it is a terrible idea. This is similar to a doctor doing an appendectomy on himself.

"Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative issues.

A qualified attorney, however, can review the case for defects, have the court suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

IF I'M STOPPED BY A POLICE OFFICER AND HE/SHE ASKS ME IF I'VE BEEN DRINKING, WHAT SHOULD I SAY?

You are not required to answer potentially incriminating questions. There are basically three acceptable alternatives, each with its own potential consequences.

One approach would be simply to ask, "Why are you stopping me, Officer?", even if it is at a sobriety checkpoint. When the officer asks, "Have you had anything to drink this evening?", simply say, "Officer, I do not wish to be delayed. Please do not delay me. I want to drive home". If the officer has no other basis to ask you out of the car, technically you should be on your way. However, in reality, the officer may force you to take a field sobriety test or a breath test. If you are not intoxicated you will be free to go. If you are found to be intoxicated, the officer will most likely tailor his recollection of the stop and his resulting testimony to allege that he had reasons to suspect you were intoxicated.

A second approach is to offer politely, "I would like to speak with an attorney before I answer any questions." If you start with that answer, we suggest that you keep on giving that answer until you have consulted with an attorney.

A third reply - where appropriate (that means "true") might be saying that you had one or two beers. That would not be incriminating as they are not usually sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath. However, it would be sufficient cause for the officer to have you take a field sobriety test.

IF A POLICE OFFICER PULLS ME OVER, WHAT KINDS OF ROADSIDE OR FIELD SOBRIETY TESTS CAN THE OFFICER ASK ME TO PERFORM?

If the police officer observes some evidence of alcohol usage, he/she will ask you to perform a series of "field sobriety tests" (FSTs). Typically, these tests measure your physical dexterity or mental acuity. Most officers will use a set battery of three to five of the following tests:

• recite the alphabet;
• count backwards;
• line-walking;
• finger-to-nose;
• heel-to-toe;
• balancing one foot at a time;
• fingers-to-thumb;
• hand pat;
• bending forward and backward with your eyes closed.

If you have chronic physical problems or physical limitations, have difficulty with your balance, walking, etc., it would be wise to inform the officer prior to taking the tests. Also, in many localities the police routinely video-tape all stops. If so, the FST may also be video-taped.

CAN I REFUSE TO TAKE FIELD SOBRIETY TESTS?

Unlike the chemical test, where refusal to submit may have serious consequences, you probably are not legally required to take any FSTs.

The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests simply provide additional evidence and the suspect inevitably "fails" the FST. Thus, in most cases a polite refusal "until I may speak with an attorney" may be appropriate. Obviously if you appear drunk in a videotaped FST it will not impress the judge or jury.

WHAT HAPPENS IF A POLICE OFFICER ASKS ME TO TAKE A ROADSIDE BREATH TEST? MUST I TAKE ONE?

A "roadside breath test," indicates the presence and/or concentration of alcohol based on a breath sample. You will be asked to blow into a breath meter. The purpose in giving this test is to determine if there is reasonable cause to arrest you for driving under the influence. While you generally may refuse to take the test, your refusal may not stop the officer from arresting you if there is other evidence of alcohol usage (e.g., slurred speech, bloodshot eyes, clumsiness) that would affect your ability to drive. Your refusal might also have other negative consequences, as discussed below.

THE OFFICER TOOK MY LICENSE AND SERVED ME WITH A NOTICE OF SUSPENSION AFTER THE BREATH TEST. HOW CAN HE DO THAT IF I'M PRESUMED INNOCENT?

The law in most states provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit). Although this seemingly violates the due process clause of the United States Constitution, Courts have upheld its legality.

WHAT DO POLICE OFFICERS LOOK FOR WHEN SEARCHING FOR DRUNK DRIVERS ON THE HIGHWAYS?

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

• Turning with a wide radius;
• Straddling center of lane marker;
• "Appearing to be drunk";
• Almost striking object or vehicle;
• Weaving;
• Driving on other than designated highway;
• Swerving;
• Speed more than 10 mph above limit;
• Stopping without cause in traffic lane;
• Following too closely;
• Drifting;
• Tires on center or lane marker;
• Braking erratically;
• Driving into opposing or crossing traffic;
• Signaling inconsistent with driving actions;
• Slow response to traffic signals;
• Stopping inappropriately (other than in lane);
• Turning abruptly or illegally;
• Accelerating or decelerating rapidly;
• Headlights off.

WHAT RIGHTS DO I HAVE WHEN A LAW ENFORCEMENT OFFICER ASKS ME QUESTIONS ?

Law enforcement officers routinely ask questions of victims, witnesses and suspects. If you feel that you are a suspect or could later be considered a suspect, you should speak with an attorney before speaking with law enforcement officers. What you say to your attorney is protected from disclosure to others by the attorney-client privilege. What you say to law enforcement can be used against you, regardless of whether there is a physical record (either written or recorded) of the conversation.

You can always inform the law enforcement officer that you wish to speak with an attorney before answering any questions. At that point (if you are in custody), the questioning must stop and you will be provided with the opportunity to speak with an attorney. After a reasonable amount of time, law enforcement officers may return and begin to ask you questions again. If you have not spoken with an attorney, you may continue to refuse to answer questions until such time as you have obtained legal assistance.

Victims and witnesses are encouraged to report crimes and cooperate in the prosecution of crimes. The reporting of crimes includes answering questions presented by law enforcement officers and officers of the court (including personnel at city, district, state and federal attorneys offices as well as authorized agents of other government agencies).

CAN THE POLICE EVER SEARCH ME WITHOUT A WARRANT?

Yes. There are numerous circumstances under which a search may lawfully be made without a warrant. Some general areas of exception where a search can be made without a warrant are:

• If the safety of the police officer is involved,
• Whether the police are in hot pursuit of a criminal,
• When they see illegal evidence in plain view,
• If they are doing temporary questioning,
• If a person consents to being searched, and/or
• If they have made a lawful arrest.

CAN A POLICE OFFICER SEARCH ME IF I AM A PASSENGER IN A CAR THAT HAS BEEN STOPPED FOR SPEEDING?

Generally, no. The rules surrounding the search of passengers in a car stopped for a moving violation are similar to the rules surrounding the driver. That is, if the officer has an articulable suspicion that the passenger may be involved in criminal activity, the passenger may be searched. For example, if when approaching the car, the officer notices the passenger bend over and hide something under the seat and the car smells like marijuana when the officer approaches, the passenger may be searched.

Whether or not the passenger (or driver) has actually done anything to create an articulable suspicion that a crime has been committed is usually a hotly contested issue. It is possible that the police officer will stop and search first and if he finds a reason to make an arrest, will create an articulable suspicion after the fact.

DO I HAVE TO GIVE CONSENT TO A LAW ENFORCEMENT OFFICER TO SEARCH OF MY CAR?

If you feel that you have nothing to hide, and that challenging the law enforcement officer would be more bother than it's worth, you can give law enforcement officers consent to search your car. With consent, the officer does not need a warrant, does not need probable cause and can take custody of evidence obtained.

You do not have to give consent to a law enforcement officer to search your vehicle. While you do not have to consent, bear in mind that the expectation of privacy in a car is less than the expectation of privacy in your home. Based in part on the lessened expectation of privacy in a car, law enforcement officers are permitted to conduct a warrantless search of a car if the officer has probable cause. Often times, an officer will search a vehicle if he suspects criminal activity such as marijuana possession. If the officer finds marijuana, s/he will allege that s/he was able to smell it when s/he initially approached the vehicle. If a gun is found in the vehicle, regardless of where it is found, the officer may state that it was in plain view when s/he approached the vehicle.

Probable cause exists where the facts and circumstances would cause a reasonable person to believe that evidence of a crime could be located in the area to be searched. With probable cause, law enforcement officers may search any area of the vehicle where the probable cause leads him/her to believe that evidence may be found. In addition to a probable cause search, any time a law enforcement officer sees evidence of a crime in his/her "plain view," s/he can immediately seize the evidence without a warrant.

IF THE COPS HAVE A WARRANT TO SEARCH MY HOUSE, CAN THEY LOOK ANYWHERE?

No, not necessarily. Read the warrant carefully to see where the judge (the person who signed the warrant) is permitting the police to search and what they are permitted to seek. For example, if the warrant says the police are permitted to search your home for anti-assault weapons, they cannot open your ring box in the back of your sock drawer. The phrase used to explain this is: the police cannot look for an elephant in a matchbox. This is the general rule. However, most search warrants are so broadly written, that the police can usually get away with looking just about anywhere. The best thing to do when served with a search warrant is to sit there. It may also be appropriate to contact an attorney who can attempt to speak with the officer while they are still at your home.

The police officers that are in your home pursuant to a warrant can make the search cleanly or messy. Be sure not to get angry at them and to keep control of your emotions. Offering the officers coffee, water or soda is an easy way to make the situation more comfortable and perhaps ingratiate yourself with the officers so that they undertake a clean search and leave your home in good order.

IF I AM ARRESTED, WHAT SHOULD I DO?

There are certain things you should and should not do if you are arrested.

DO NOT make statements to the law enforcement officer in the belief that if you cooperate the officer will let you go (it is already to late once an arrest has occurred).

DO speak only with your attorney about the matter - do not discuss it with anyone else including those in the cell with you.

DO NOT answer questions asked by law enforcement officers or other officers of the court, unless advised to do so by your attorney.

DO have your attorney present during any lineup or administration of a test (such as drawing a blood sample for further testing).

DO be polite to law enforcement personnel; they can make a bad situation worse if you make them mad at you.

DO request to be issued a Desk Appearance Ticket ("DAT") or a summons rather than being "put through the system." Often times the arresting officer or the Officer in charge has discretion about which type of arrest to effectuate. If a "DAT" or summons is issued, the defendant will be released from the police precinct with a date to return to court. If a defendant is "put through the system" most likely the defendant will spend one night in jail before seeing a judge for his/her arraignment. In cases with no possible jail sentence (such as possession of a small amount of marijuana), one night in jail is already a more severe penalty than the crime deserves. In such situations, a "DAT" or summons would be appropriate.

WHAT ARE THE TYPICAL STEPS IN A CRIMINAL PROCEEDING?

Guilt or innocence of a petty crime or minor criminal violation is usually resolved in a summary proceeding. Your signature on the ticket charging a petty offense acknowledges receipt of it and it contains your promise to pay the fine or appear in court. On the face of the ticket will be your name (as the defendant), the date and time of the offense, the name of the law enforcement officer who issued the ticket, the location and telephone number of the court, and the date for you to appear in court. With many petty crimes, you may simply call the court to find out how much the fine is and then you can plead guilty and send in payment for the fine. If you wish to plead not guilty and have a hearing on the matter, you must show up at the assigned hearing. You may have an attorney present with you at the hearing or defend yourself (appear "pro se").

Usually the "trial" of the matter is heard at this first hearing and the sentence rendered after the submission of the evidence.

Misdemeanors and felony criminal proceedings are much more complex. As with a petty crime proceeding, you may have an attorney appear with you throughout the proceeding, or waive your right to counsel and represent yourself. For most felony proceedings, the following steps typically occur (note: these steps do not apply to juvenile proceedings):

A crime is committed, it is reported, an investigation conducted and an arrest made (these may all occur in rapid sequence if the offense is committed in the presence of a law enforcement officer)

Booking - an administrative procedure which records the defendant's name, the crime charged, and other relevant information about the defendant (telephone number and address, photograph, fingerprints, etc.)

Arraignment - when the defendant appears in court and enters a plea (guilty or not guilty, or sometimes "nolo contendre" [no contest]). The defendant is presented with a written accusation (the complaint) detailing the facts of the crime and his/her involvement in the crime. The written accusation may be presented by a grand jury, a prosecutor or a police officer. If the defendant enters a not guilty plea, a date for trial is set.

Bail or Detention - bail is either set or the defendant is required to be "detained" (kept in jail until the trial). Bail could range from being "released on your own recognizance" (in other words, you are on your honor to appear at the next hearing), to many thousands of dollars. When a higher amount of bail is set, a bail bondsman is often called to provide the bail payment in exchange for a fee and a lien against property (as collateral) of the defendant. If bail is posted, the defendant is released but must show up at the next hearing (or bail will be forfeited).

Preliminary Hearing - A hearing in which a judge determines whether the defendant should be held for trial. At the "prelim," the prosecution has the burden of providing sufficient evidence to the judge that a crime has occurred and that the defendant committed the crime.

Trial - 'Voire dire' or jury selection, opening statements, examination of witnesses and presentation of evidence, closing statements, charging the jury (giving the jury its instructions), verdict rendered by the jury after due deliberation, and entering of the verdict (either guilty, guilty of a lesser included or related offense, or not guilty). After a verdict is issued, the defendant may try a post trial motion, such as a motion for a new trial.

Sentencing - when a defendant has been found guilty by trial or has plead guilty, a hearing is set to determine the imposition of the sentence. Sentencing reports, which set forth mitigating and compounding factors (prior payment of restitution may be a mitigating factor, other convictions of crimes may be a compounding factor) are often submitted to the judge and then the judge pronounces judgment at a sentencing hearing (in some jurisdictions juries or sentencing councils render the sentence).

Fine, Probation, Jail - the defendant may be ordered to pay a fine, be released but subject to specific terms of probation, or sent directly to jail. If a person violates the terms of his/her probation, s/he may have his/her probation revoked, and be sent to jail.

Appeal - after conviction of a crime, the defendant has rights to certain appellate proceedings which may be available to determine whether all substantive and procedural law issues were properly conducted at the trial..

IF THE POLICE DON'T HAVE A WARRANT CAN THEY STILL ARREST ME?

Yes, an arrest by a police officer without a warrant is proper if the officer has reasonable grounds to believe that you have committed a crime.

IF THE POLICE DON'T READ ME MY RIGHTS, CAN MY CASE BE DISMISSED?

No, not necessarily. We have all heard the "rights" being read to many suspects on television and in the movies, and this has caused some confusion. The police officer does not have to read anybody their "rights" unless that officer wants to get a statement or confession from a suspect. If the officer does not want to record what you have to say and use it against you, he does not have to read you your rights.

However, if the officer wants to ask you some questions other than your name and address, he must advise you that you don't have to answer his questions, that if you do, anything you say can be used against you and that you have a right to a lawyer before you answer any questions. It is amazing how many people will answer the officer's questions in some vein attempt to cooperate. This will not help your case. It will give your attorney headaches in trying to defend the case later on.

These warning should be taken seriously. Anything you say after your Miranda warnings have been given can and most certainly WILL be used against you. As a rule you should respond to the Miranda warnings or "rights" as follows:

Police: You have the right to remain silent.
You: (politely answer) I would like to speak with my attorney before I answer any questions.

Police: Anything you say can be used against you.
You: I would like to speak with my attorney before I answer any questions.

Police: You have the right to speak with an attorney.
You: I would like to speak with my attorney before I answer any questions.

Police: If you cannot afford an attorney one will be appointed to you free of charge.
You: I would like to speak with my attorney before I answer any questions.

Police: Do you understand these rights.
You: Yes, I would like to speak with my attorney before I answer any questions.

The police may ask you if you wish to waive these
rights. Do Not Waive Your Rights. Remain silent and wait for your attorney.

email: help@wylielaw.com
(212) 566 8000 Fax - (212) 228 4744