DWI arrest

[sledrider]

NYS

I was charged with DWI on July 15, 2010. When I was asked to do a field sobriety test, the officer had the SUV with every single light on possible and was parked no less that 15 feet behind my vehicle. He asked me to do the alphabet backwards and didn't pass that, and I can't even much remember it from A-Z without forgetting a letter anyway and I failed the follow his pen with my eyes, and his flashlight was blinding me as well, as my eyes were focusing on the pulsating lights from the SUV and this was when I was arrested, and he failed to read me Miranda rights. I was taken to the State Police barracks for a breathalyzer and posted a .16 after being observed less than 1 hour including from the time of arrest. I was then taken to the local PD for processing as they were the original arresting dept., and since their computer system was supposedly down I told him that I already had a prior DWI in an adjourning jurisdiction and to call that jurisdiction to verify it, which was never done. So originally I was charged with a Class D misdemeanor and the arresting officer long formed the paperwork with the Class D along with his statement and the PD chief was called in to watch me while the paperwork was being done and had called a judge up at 2:30AM, telling the judge that they were bringing in a Class E Felony suspect for arraignment. Well the judge asked (and had it recorded) the arresting officer why we all were even here to discuss this as she felt this shouldn't have warranted anything of the sort as it being a Class D, set the court date and appointed me a lawyer, and made the officer bring me home. Now on my court date a week later, magically the original Class D paperwork that I was charged with was no longer and was formally charged with Class E Felony with a same but different in ways statement and no mention of the other paperwork since now their computer system was back up and running. I have the original paperwork. I also had asked the police to view and for a copy of the video and audio from the SUV as it was equipped and I've been told I am unable to have it. It was pleaded down quickly and now I gotta do the whole counseling bit and with Probation, I can't afford any of this since I'm on a fixed income as I am laid off from my job until Apr.1., and now my court date to check the status of how I'm doing got pushed up by 2 wks, and is this coming Tuesday, and really have nothing to show for it as I simply cannot afford the treatments along with living expenses or have a dependable ride to these classes since my license is suspended and I had to take my vehicle off the road. I did begin a treatment program, but on Dec. 6, 2010 I was told by a counselor that I was unable to continue with treatment until I was able to make a payment schedule with the Director, which when the Director and I had discussed proir to starting, we would talk about a payment schedule after the first 2 full weeks of the treatment. I had continually tried to reach her via email and phone calls with no avail, and just about the end of the month I finally got a response about it and she had told me that I was on a sliding scale which I was unaware of from a miscommunication from the treatment facility and if I wanted to continue in that program, I had to have another evaluation at the full cost of 200 which I can't do, and all the time I had put into the program would be lost. I have all of this documented as well. Is there anything I can do now since this is so far along and the appointed attorney has not gotten back to me after repeated attempts?

 

[CdwJava]

I was charged with DWI on July 15, 2010. When I was asked to do a field sobriety test, the officer had the SUV with every single light on possible and was parked no less that 15 feet behind my vehicle.

Okaaaay ... that's how the police conduct traffic stops - by using as many lights as they can.

He asked me to do the alphabet backwards and didn't pass that, and I can't even much remember it from A-Z without forgetting a letter anyway and I failed the follow his pen with my eyes, and his flashlight was blinding me as well, as my eyes were focusing on the pulsating lights from the SUV and this was when I was arrested, and he failed to read me Miranda rights.

Okay ... alphabet test is not a standardized FST and is a piss-poor test for DUI, yet still commonly done. By itself, worthless.

The pen and the eye thing is an outstanding test, and it IS one of the standardized SFSTs (called the Horizontal Gaze Nystagmus test). Your claim of not being able to track due to the lights of the car, and being blinded by his pen light are not likely to mean a whole lot unless you involuntarily closed your eyes. There are a number of things the officer should have been looking for in the HGN and most would generally not be effected by the lights.

And Miranda is only required AFTER an arrest and when you are being interrogated. About 9 in 10 arrests will never require Miranda rights to be read.

I was taken to the State Police barracks for a breathalyzer and posted a .16 after being observed less than 1 hour including from the time of arrest.

Okay. Sounds like a good test, then. And sounds like you were double the per se limit. Bad news for you.

Now on my court date a week later, magically the original Class D paperwork that I was charged with was no longer and was formally charged with Class E Felony with a same but different in ways statement and no mention of the other paperwork since now their computer system was back up and running.

Your attorney can look into it, but they can amend the charges up until trial.

I have the original paperwork. I also had asked the police to view and for a copy of the video and audio from the SUV as it was equipped and I've been told I am unable to have it.

Your attorney can get a copy through discovery.

It was pleaded down quickly

You already plead guilty? Did you get diversion of some kind?

If you have already pled and been sentenced, this is all but a done deal.

I simply cannot afford the treatments along with living expenses or have a dependable ride to these classes since my license is suspended and I had to take my vehicle off the road.

No buses your way, I guess?

I guess you have a tough choice to make. Maybe you should ask that you be put into custody to serve your time rather than be allowed to remain free since you will be unable to complete the terms of your release.

Is there anything I can do now since this is so far along and the appointed attorney has not gotten back to me after repeated attempts?

Since you have already been sentenced, your court-appointed attorney is likely under no legal obligation to assist you at all. In fact, he may be prohibited from assisting you any longer.

 

[sledrider]

Okaaaay ... that's how the police conduct traffic stops - by using as many lights as they can.

The pen and the eye thing is an outstanding test, and it IS one of the standardized SFSTs (called the Horizontal Gaze Nystagmus test). Your claim of not being able to track due to the lights of the car, and being blinded by his pen light are not likely to mean a whole lot unless you involuntarily closed your eyes. There are a number of things the officer should have been looking for in the HGN and most would generally not be effected by the lights.

----
'Ok...so its ok for an officer to turn on more lights than he already had on the SUV before the stop, including the spotlight which was not on before he started the tests and deliberately placed that light at my face...practically blinding me? When he first turned on the lights, all that was flashing was the top lightbar and the headlights, then he came up to the vehicle to get my license, registration and ins card all the other lights came on. It looked like a circus vehicle. And he wasn't using a pen light...it was a full on Mag Lite, the big one you can cave someone's skull in with'

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And Miranda is only required AFTER an arrest and when you are being interrogated. About 9 in 10 arrests will never require Miranda rights to be read.

'The Miranda rights weren't read period after the arrest...so you're saying that decision... Miranda v. Arizona 384 U.S. 436...is total bull****? I had told the officer that I had 3-4 beers with a meal at a local bar during a business meeting, which I had a statement from my boss that does not drink (as he has a liver enzyme problem so his body can't process alcohol properly) verifying this, and he convieniently omitted this during his report, and the statement disappeared. The judge didn't even allow my boss to give a statement on my behalf after I had found out the statement disappeared. Also, on the original paperwork the officer claims to have breathalyzed me at the State Police Barracks at 1:00 AM, which also happened to be the same time of arrest in his handwritten statement... and where he claims to have witnessed me moving at a high rate of speed from a dead stop at a traffic light and the vehicle was positioned the same way so it would have been verified by radar as it was working, but there was no speeding ticket issued or doesn't this matter at all?'
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Okay. Sounds like a good test, then. And sounds like you were double the per se limit. Bad news for you.

'It was proven that the machine used was not calibrated as no test sample was placed in the machine prior to the test but the judge allowed it anyway'
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Your attorney can look into it, but they can amend the charges up until trial.

'I'm not sure how that works because I was told after I was arraigned in the AM hours and released on recognizance, these were the set charges and could not be amended'
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Your attorney can get a copy through discovery.

'The police did not let us get a copy and at first tried to claim that the SUV was not equipped with said equipment'
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You already plead guilty? Did you get diversion of some kind?

Yes as what alternative do I have...none! The deal was a 16 week program with a year of Probation, and I have already been told that Probation is going to be quite restrictive and I can't have that as for 6-8 months out of the year I work out of county. And during the time I have off in the winter I'm on unemployment and can't claim benefits in jail to pay for any bills I have... and no on the diversion.
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If you have already pled and been sentenced, this is all but a done deal.

'How so??? There are a few people that I know that have aggravated felony counts of DWI and are getting their plea deals restructured AFTER obtaining evidence that contradicts the officers arrest sheet and evidence for DWI...one including a Miranda violation, but they were also charged with other counts... one had a violation of probation, and other one had outstanding bench warrants.'
----

No buses your way, I guess?

'Negative. I live in a rural area and the nearest the bus comes is 22 miles away'
----

I guess you have a tough choice to make. Maybe you should ask that you be put into custody to serve your time rather than be allowed to remain free since you will be unable to complete the terms of your release.

'I'd rather die first than go to jail for a bull**** charge or if I do go...I'm going for a worthwhile charge.'
----
Since you have already been sentenced, your court-appointed attorney is likely under no legal obligation to assist you at all. In fact, he may be prohibited from assisting you any longer.

'No because even though the attorney was appointed, I well exceeded the amount for the county to pay for an attorney, so I paid out of pocket to be represented by the same attorney.'
------

I'm not trying to be rude here, but this town is probably one of the most crooked and corrupt towns in Central NY and many know this. If you're not connected or know anybody within the system, they simply don't give a **** about what they do to who. What I have said is not bs in any way either.

 

[CdwJava]

'Ok...so its ok for an officer to turn on more lights than he already had on the SUV before the stop, including the spotlight which was not on before he started the tests and deliberately placed that light at my face...practically blinding me?

It is common to apply lights to the area where the tests are being conducted.

If you somehow believe that the lights effected your tests, you should have brought it up at trial. However, with a BAC of .16 that would have been a stretch.

And he wasn't using a pen light...it was a full on Mag Lite, the big one you can cave someone's skull in with'

Not the best tool for the HGN, but since all the officer is doing is checking for Nystagmus and tracking, it can do the job just fine. Applying it directly in your eyes should not effect tracking, though it might have changed pupilary response and also might have caused an involuntary closing of the eyelid (which is not an element for good or ill in the HGN evaluation). So, the light was more than likely a non-issue, either.

'The Miranda rights weren't read period after the arrest...so you're saying that decision... Miranda v. Arizona 384 U.S. 436...is total bull****?

No, I am saying that Miranda is not always required. In fact, most arrests will NEVER require Miranda to be read.

Miranda must generally only be read when two conditions exist: (1) the subject is in custody (i.e. under arrest r detained with force equivalent to a custodial arrest), and, (2) the subject is being interrogated.

Since the FSTs occur before the custody/arrest, they are generally not subject to Miranda.

The judge didn't even allow my boss to give a statement on my behalf after I had found out the statement disappeared.

You could have gone to trial and introduced the statement. However, it would still have been irrelevant. All that would have shown was that (a) your boss did not know how many drinks you had (was it three? Was it four?), and, (b) that you HAD been drinking. It would still not have changed the fact you were arrested and that the chemical test showed you were twice the per se limit.

Also, on the original paperwork the officer claims to have breathalyzed me at the State Police Barracks at 1:00 AM, which also happened to be the same time of arrest in his handwritten statement... and where he claims to have witnessed me moving at a high rate of speed from a dead stop at a traffic light and the vehicle was positioned the same way so it would have been verified by radar as it was working, but there was no speeding ticket issued or doesn't this matter at all?'

Times are approximate. Unless you are contending there was a delay of hours, it was also likely a non-issue. Sloppy, yes, but not proof of innocence by a long shot.

And the police rarely issue a citation or charge for lesser included offenses in a DUI. There are legal reasons for not doing this, but mostly it is merely for practical reasons as your speed or other violations will be argued as elements of the DUI and not charged separately.

'It was proven that the machine used was not calibrated as no test sample was placed in the machine prior to the test but the judge allowed it anyway'

What does "it was proved" mean? Who proved it? Did you have an expert testify that the machine was not properly calibrated or maintained? That the officer used it improperly?

What machine was it? The "blank" is not a test sample, and not all machines operate the same way. And unless the NYSP use some new device that is different from any of the others used in the USA, once the machine is activated it starts its process automatically - the officer cannot turn off the "blank" or other process even if he wanted to.

I read on one website that the NYSP uses the Draeger AlcoTest 7110 MK III. If they still use it, the device acts automatically. You start it with one button and the officer has no control over the rest of the operation until prompted.

'I'm not sure how that works because I was told after I was arraigned in the AM hours and released on recognizance, these were the set charges and could not be amended'

They could have been amended prior to trial. It would have required a new arraignment or whatever process your state has, but it is possible.

Again, this an issue your attorney could have raised. Of course, it would have merely reduced the offense as opposed to dismissed it.

'The police did not let us get a copy and at first tried to claim that the SUV was not equipped with said equipment'

And how do you know it was so equipped or that the equipment functioned?

This would have been an issue for your attorney to bring up. had you gone to trial you could have used that to try and argue that the officer lied or exaggerated in his report and without visual proof it was possible that you were not impaired. However, if the officer had any amount of experience and time on, and a track record of expertise, the lack of a video would not have helped much.

Out here in CA we make DUI arrests and conviction without video every day ... so do agencies in the rest of the country where video is rare.

Yes as what alternative do I have...none! The deal was a 16 week program with a year of Probation, and I have already been told that Probation is going to be quite restrictive and I can't have that as for 6-8 months out of the year I work out of county.

You can either try to work something out with the court o probation, or, you can choose to take time off and go to jail. Because it is inconvenient does not mean the court has to let you off.

'How so??? There are a few people that I know that have aggravated felony counts of DWI and are getting their plea deals restructured AFTER obtaining evidence that contradicts the officers arrest sheet and evidence for DWI.

That is why I said that it is "all but a done deal." There are exceptions, but they are few. You likely have a time limit window in which to appeal or retract your plea. If you have already been sentenced, then the appointed counsel may not be an option any longer so you will likely have to consult your own private legal counsel about the possibility of retracting the deal and going to trial.

How do you think it will go different for you at trial? Do you think you will get LESS of a sentence? If convicted, you could go to jail in addition to the aforementioned probationary conditions.

Be careful what you ask for as it might not be what you want.

'I'd rather die first than go to jail for a bull**** charge or if I do go...I'm going for a worthwhile charge.'

DUI is a worthwhile charge.

Okay, so, if you want to fight this, you will need to gather your pennies. Since most cases are beaten by getting the stop or the probable cause for the arrest tossed, you'll have to target those. Targeting the breath machine will cost you thousands and will almost certainly fail.

You can consult an experienced DUI attorney to see if he or she can see any potential flaws in the state's case. Understand, however, that even the high priced DUI attorneys plea out most their cases. Unless they see a particular vulnerability in the state's case or the officer, they will likely encourage you to take the same deal (or a similar one) to that which you have right now.

Out here a trial with a dedicated DUI attorney will likely cost - at the low end - about $10,000. Your mileage might vary.

'No because even though the attorney was appointed, I well exceeded the amount for the county to pay for an attorney, so I paid out of pocket to be represented by the same attorney.'

And do you have a contract that states he must continue now?

It may very well be that his obligation to you ended at sentencing. But, I am not familiar with how that works in your state, so, maybe.

What I have said is not bs in any way either.

But ... you blew a BAC of .16! How do you dismiss THAT?

 

[disneykid52]

how many on here can (and im being serious) recite the alphabet backwards?
without cheating? come one now. i bet a cop cant even do that. in school we were only taught it forward not backward

 

[Indiana Filer]

how many on here can (and im being serious) recite the alphabet backwards?
without cheating? come one now. i bet a cop cant even do that. in school we were only taught it forward not backward

I can do my ZYX's. So can my children, and they've been able to do it since they were in grade school. What's the big deal?

 

[disneykid52]

why dont they ask square root or distance to the moon or sun or any physics questions?

 

[FlyingRon]

Accuracy in the ABCs (Or ZYXs) aren't the goal. I might screw it up sober. The goal is to just get you to think and try to talk.
A second offense DUI is not cow poop (even a first isn't).

 

[CdwJava]

how many on here can (and im being serious) recite the alphabet backwards?
without cheating? come one now. i bet a cop cant even do that. in school we were only taught it forward not backward

This is one reason why the test is not a validated test. It is, arguably, more geared to being a literacy test than a divided attention test.

 

[sledrider]

No, I am saying that Miranda is not always required. In fact, most arrests will NEVER require Miranda to be read.

Miranda must generally only be read when two conditions exist: (1) the subject is in custody (i.e. under arrest r detained with force equivalent to a custodial arrest), and, (2) the subject is being interrogated.

Since the FSTs occur before the custody/arrest, they are generally not subject to Miranda.

I was already in custody when the FST's were done...he placed me under arrest, in cuffs, for suspicion of DUI after he had smelled my breath, and I also didn't know I had a suspended license at the time, and the DMV has submitted paperwork that it was a clerical error on their behalf from a previously paid ticket and I did all the steps necessary well before that.

You could have gone to trial and introduced the statement. However, it would still have been irrelevant. All that would have shown was that (a) your boss did not know how many drinks you had (was it three? Was it four?), and, (b) that you HAD been drinking. It would still not have changed the fact you were arrested and that the chemical test showed you were twice the per se limit.

We arrived at the same time after leaving the shop at the same time with no stops in between. The bill that my boss had as he paid for everything it clearly showed that I had 3 along with the meal and we don't drink the same kind of beer, and it was only me and him that he paid for and didn't accept any other drinks from anyone else that was wanting to buy us a round...and in the officer's statement he states 3...so only 3 beers a .16??? for a 160 lb person? I found this: Blood Alcohol Content Calculator - The Police Notebook and that in itself blows holes in that. I would have to had 8 in 2 hours at my body weight to be .16!

Times are approximate. Unless you are contending there was a delay of hours, it was also likely a non-issue. Sloppy, yes, but not proof of innocence by a long shot.

State law requires 1 hour of observation before breath test, not 46 minutes as the slip from the machine said from the time of arrest, unless that part of the law has changed and I don't know that.

And the police rarely issue a citation or charge for lesser included offenses in a DUI. There are legal reasons for not doing this, but mostly it is merely for practical reasons as your speed or other violations will be argued as elements of the DUI and not charged separately.

This was his probable cause for stopping me in the first place...visual imprudent speed

What does "it was proved" mean? Who proved it? Did you have an expert testify that the machine was not properly calibrated or maintained? That the officer used it improperly?

The machine itself. It stated on the slip N/A where the test sample part was was supposed to be, there should have been a number there and wasn't. When I blew into the machine that thing tasted like someone else had blown into it and the mouthpiece wasn't changed out and I had requested that it be changed and the Trooper that administered the test said I either blow into it or go to jail right then and there and maybe I should have done that, but then everything would be worse how the law is written for failing to give a breathalyzer test.
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What machine was it? The "blank" is not a test sample, and not all machines operate the same way. And unless the NYSP use some new device that is different from any of the others used in the USA, once the machine is activated it starts its process automatically - the officer cannot turn off the "blank" or other process even if he wanted to.

I read on one website that the NYSP uses the Draeger AlcoTest 7110 MK III. If they still use it, the device acts automatically. You start it with one button and the officer has no control over the rest of the operation until prompted.

I viewed the website and it wasn't any of those machines so I don't know which one it was.

They could have been amended prior to trial. It would have required a new arraignment or whatever process your state has, but it is possible.

Again, this an issue your attorney could have raised. Of course, it would have merely reduced the offense as opposed to dismissed it.

I find that strange as since the town doesn't handle Felony counts of any kind, only the city does and it stayed in town the entire time, and I didn't have a trial as the DA wanted me bad up in the city...there is bad blood in between my family and him. And also, how the law is written for DWI, I can't or shouldn't be charged with the same DWI charge twice as this one is my 3rd alcohol conviction in 10 years, and the last one was a Class D Misd. I mean they haven't given me a fine yet as they can't figure one out for how the fines are written!!!

And how do you know it was so equipped or that the equipment functioned?

This would have been an issue for your attorney to bring up. had you gone to trial you could have used that to try and argue that the officer lied or exaggerated in his report and without visual proof it was possible that you were not impaired. However, if the officer had any amount of experience and time on, and a track record of expertise, the lack of a video would not have helped much.

They have used video and audio before as evidence to convict people with the new SUV, and most of the time as soon as the emergency lights are on the system is on and cant be turned off as long as the lights are on as far as what I can gather, and he's a rookie with many dismissals for errors in procedure.

You can either try to work something out with the court o probation, or, you can choose to take time off and go to jail. Because it is inconvenient does not mean the court has to let you off.

I haven't had the chance to speak with a PO yet, and I'm not on probation yet either. I'm going on what the Probation interviewer had told me. The judge already said that jailtime for me is not going to happen as she sees no reason to put a nonviolent offender in jail for the taxpayer to pay for.

That is why I said that it is "all but a done deal." There are exceptions, but they are few. You likely have a time limit window in which to appeal or retract your plea. If you have already been sentenced, then the appointed counsel may not be an option any longer so you will likely have to consult your own private legal counsel about the possibility of retracting the deal and going to trial.

The thing is...the appointed counsel IS who I'm paying for out of pocket as I exceed the financial figures for a court appointed attorney, and the case is not yet finalized...

How do you think it will go different for you at trial? Do you think you will get LESS of a sentence? If convicted, you could go to jail in addition to the aforementioned probationary conditions.

I'm not concerned about a trial as none of it has gone that far, as for the judge, she is also a DWI lawyer and real estate and so far its just been between the attorney and judge.

And do you have a contract that states he must continue now?
It may very well be that his obligation to you ended at sentencing. But, I am not familiar with how that works in your state, so, maybe.

See above.


I'm not looking to beat the breathalyzer...everything leading up to it is what I'm fighting for!!!

 

[sledrider]

Accuracy in the ABCs (Or ZYXs) aren't the goal. I might screw it up sober. The goal is to just get you to think and try to talk.
A second offense DUI is not cow poop (even a first isn't).

In NYS...a second one is a big deal and the book gets thrown at ya without hesitation, especally now with Leandra's Law being passed with a legally blind governor running the Titanic...lol. My 2nd one took almost 2.5 years to get done with it without jailtime. Think of this...this one is my 3rd in 10 years...I should be in jail as of July of last year but I'm not... so something is ****ed up in the system and with my particular situation and the judge knows this...otherwise why am I not serving time right from the getgo???

 

[CdwJava]

All I can suggest is that if you don't like the lack of response from your past attorney, you can hire another one.

If you can overturn the plea deal and go to trial, well, give it a go. The only real shot at winning will be to suppress the stop or the arrest. If you were cuffed and actually under arrest prior to the FSTs then a Miranda issue might apply ... but, as with all Miranda issues, the matter will be based upon the totality of all the circumstances. There could be a good reason to detain you in cuffs and then release you for the FSTs without a Miranda issue arising. I wouldn't like to address it, but it can likely be explained away.

If this visual and imprudent speed can be articulated, then it would seem that the reasonable suspicion for the stop is present. You would then have to cast doubt upon the evaluation that resulted in the development of probable cause for the arrest. Unless you can definitively show that the officer's evaluation was poor or that he failed to articulate sufficient cause to show that you were impaired, the arrest will be good and then you have the much taller hurdle of the machine.

A couple of points ... NYS requires only a 15 minute observation, not an hour.

Your boss's bill shows only that he paid for those three beers, it does not prove that you did not drink anything else and it may not indicate the size or brand (for alcohol content) of those beers. It is certainly an element the defense can present to cast doubt on the BAC ... but, that darn machine still came back with a .16. That's gonna be tough to beat.

Hopefully you will have learned from this ordeal never to drink and drive.