Driving While
Intoxicated. No person shall operate a motor vehicle while in an
intoxicated condition.
NY
VTL 1192.3.
Although this may seem
like a pretty straightforward law (don't drive while intoxicated!), proving
someone has violated it is really not that simple. Most DWI defense
attorneys chomp at the bit when a lone 1192.3 charge comes through the door
because there's no BAC to cause headaches.
BAC's are bad.
Juries love BAC's..."A computer says that the BAC
was .10, so it must be accurate, and the defendant must be
guilty!"...says the jury.
And even tho DWI defense
attorneys should, at a minimum, attempt to discredit a chemical test
result/machine when there is a BAC, at the end of the day juries are reluctant
to disregard what they consider to be hard evidence of intoxication unless
there was proof of a malfunction or some other bona fide error.
But you don't have to
deal with that on an 1192.3 charge! The fertile ground to explore in a
VTL 1192.3 charge is the subjective observations of the arresting officer and
any other witnesses. To a criminal defense attorney, that's good stuff!
But what does that mean?
Opinion! That's what
that means. Although a major factor in an 1192.3 arrest is the driver's
performance on the Standardized Field Sobriety Tests (which aren't really very standardized),
it should also be based upon the arresting officer's overall opinion
(formulated from his or her entire observations) that the driver is
intoxicated. Think about that for a second. The arrest is premised
upon the observations of a person who (in most cases) has never met the driver
before; has no idea how the driver looks, behaves or moves on any given day.
Obviously, if a driver
has to clear the beer cans from his lap before he pours himself out of the car
and throws up clear vodka on the officers shoes, that may be a bit of a
no-brainer. But that's not the typical situation (I hope!).
With regard to all DWI
stops (for 1192.2, 1192.3 or otherwise), the officer is
trained to observe the driver from the instant contact is made (meaning, once
they come into contact with the vehicle, not necessarily the
driver). They will watch for erratic operation or a violation of a
traffic law (or worse) and use that as the basis to initiate the stop.
The officer will observe when and how the vehicle responds to the
direction to pull over. After the officer arrives at the vehicle,
observations through the door/window are being made of the driver's physical
appearance, eyes, odor, speech and motor coordination; observations of how the
driver exits the vehicle, and ultimately how the driver performs on the Standardized Field Sobriety Tests (SFSTs).
And if there's no BAC (and there wouldn't be for just an 1192.3 charge),
that's the prosecutor's entire case, ladies and gentlemen!***
And what fun a skilled
DWI defense attorney can have cross-examining the arresting officer about his
or her subjective opinions, subjective application and interpretation of the
SFSTs (physical tests requiring movement and coordination not normally engaged
in by the every day driver), and the officer's subjective state of mind (before
any probable cause has been established) as s/he pulled someone over at 2:00 AM
on a Friday night for an innocuous speeding violation.
(*** Generally in a case
where the only DWI related charge is an 1192.3, it may be because the driver
refused to provide a sample for chemical test analysis (i.e., a
"refusal"). In that case, there are certain consequences of the
refusal that come into play at the criminal trial. Specifically, in most
circumstances the jury may be given a "refusal charge," which permits
to prosecutor to inform the jury that the driver's refusal to provide a sample
was a conscious decision because the driver knew he or she would fail the test,
i.e., "consciousness of guilt." That can be difficult to
contend with at trial, but not impossible. Similarly, there will be the civil consequences of a refusal; that topic is
dealt with in a previous entry.)
Cases charging just a
violation of 1192.3 occur a lot. And although they are typically hampered
by a related refusal charge, the skilled DWI defense attorneys at Catalano
& Carpenter LLP know how to effectively challenge the evidence of an 1192.3
arrest, minimize or leverage the refusal, if one exists, and in many cases are
able secure a pre-trial plea or trial verdict of a DWAI violation or other
non-criminal resolution.
No matter the charge, a
DWI arrest is serious and can result in serious and immediate consequences.
If you have been arrested for any DWI offense, call the knowledgeable and
experienced DWI defense attorneys at Catalano & Carpenter LLP today
at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com to
schedule a free consultation.
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