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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17117
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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got a DWI last night (NY - Orange County). the reasons specified

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got a DWI last night (NY - Orange County). the reasons specified for my being stopped are VTL375.3 (failure to adjust highbeams) & 1163.d (described on the citation as "Improper / No Signal"). while the officer mentioned the highbeams issue as a reason for pulling me over, the "no signal" citation is capricious & utterly unfounded.

i've found two recent cases that found the VTL375.3 statute does not provide an officer reasonable grounds for a stop (& the ensuing 'evidence' then being suppressed as a 4th Amendment violation), the 1163.d addition is far more problematic & virtually impossible to disprove.

if i've got a strong case arguing for suppression of evidence based on the VTL375.3 NY precedents, am i still stuck with the bogus. 1163.d citation that's virtually impossible to disprove? it seems the charges are linked -- getting the VTL375.3 charge tossed should render the 1163.d charge moot -- especially since the charge is listed second, almost an ancillary addition.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 years ago.
Hello JACUSTOMER

A police officer merely needs an articulable suspicion that something's amiss to pull a car over. From there, if his stop gives him probable cause to believe that you were intoxicated, he can go forward and arrest you for a DWI.

The 375.3 and 1163(d) are traffic infractions, and civil matters. A DWI, is a misdemeanor and can give you a criminal record. I assume that you are thinking that if you get the other charges dismissed somehow that the DWI will fall. I doubt that will happen, and I suggest you retain counsel if you want to fight your case.

___________
If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your Atate for specific legal advice.

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17117
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 8 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
the "traffic infractions" (375.3 & 1163(d) are the explicitly stated reasons for the traffic stop. two recent new york cases -- "People vs Frederick" (Rockland, 2006 - decided at the local level) & "People vs Rose" (overturned on appeal) found that the 375.3 statute was insufficient probable cause for the initial stop. the DWI charge proceeded from the initial stop -- ergo, "fruit from a poisonous tree" (the evidence is suppressed).

my DWI charge comes from events that followed a traffic stop predicated on 375.3 infraction that's as constitutionally weak at the knees as the two listed above. if there's no probable cause for the stop, the evidence gathered from said stop can't be used to convict ("improper search & seizure").

i'm sorry, but simply saying that a "police officer merely needs an articulable suspicion that something's amiss to pull a car over" seems cheeky & is contradicted by the case law described above. i've been unemployed for more than a year now, i'm deep in debt, & freshly moved in with my sister in a very rural & unfamiliar area. if i could afford to retain expert counsel i wouldn't be searching for bargain answers on this board & doing most of the legwork on my own (e.g., finding the above cases).

the "No Signal" charge emerged completely from the officer's imagination after I complained about not receiving Miranda & refusing to simply initial any piece of paper shoved in my face. my BAC may have registered over the limit, but I can assure you I was quite lucid & in control of my cognitive abilities throughout the entire ordeal. i was bullied, humiliated, openly lied to, & when I finally spoke up for myself I was rewarded with a night in jail & an exorbitant $2000 bail charge for daring to question an police officer in his self-described "house" where he made the rules (virtually an exact quote).

your 'answer' frankly just makes me feel more hopeless, victimized, & marginalized.

obtaining & utilizing counsel -- even if it is simply a Legal Aid attorney -- is a given in my case. i asked a very specific legal question regarding the tenability of what to my mind is the groundless use of a NY Vehicular Statute to reinforce a rickety case for stopping me.

"get a lawyer" is the best you can offer? gee ... thanks.
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer,

I didn't intend in any way to trivialize your efforts to assist in your own defense.. If the two vehicular charges are the only reason on the criminal court complaint for the stop of your car, challenging them would be useful. But it has always been my experience that the factual portion of the criminal court information on a DWI complaint will allege more than just the predicates for these citations. There will usually be enough boilerplate allegations to show that in general, your driving was bad -- allegations of weaving, for example, and other signs of erratic driving -- along with the lights and/or lack of signalling. If you've seen the information, and that's not so, I stand corrected for the assumption.

The case you cite is not binding precedent outside of Rockland County, though, of course, the fact that it's there gives credence to your argument. I don't see how beating the 375.3 disposes of the 1163, however. It's not moot, and it's likely to survive a hearing and be a question for the trier of fact to decide upon hearing all of the evidence.

At what point in the proceedings is your case now?





Edited by FranL on 4/2/2010 at 1:42 AM EST
Customer: replied 4 years ago.
my apologies for being so abrasive. this whole ordeal has just begun & it's added exorbitant financial debt to my existing state of complete financial ruin, not to mention the threat of jail time, even more unpayable debt, the loss of my license, a criminal record, & probably a mortal blow to whatever chances i had of re-entering the senior-level IT job market at age 47.

as to your question ...

court date of 4/14. assigned legal aid by arraigning judge at police station that morning who entered a plea of "not guilty" without even consulting me. judge then remanded me to jail & slapped me with a $2000 bail / $10,000 bond. gent in cell with me was also charged with DWI (his second) -- his bail was $250 / $1,000 bond.

day after my arrest & jail stay i contact legal aid only to find that my unemployment insurance payments exempt me from their services.

(rhetorical question: was i ever REALLY afforded the right to counsel even after being 'seen' by the judge?)

my sister & brother-in-law have picked up the expense of the bail & scheduled an attorney consultation. i haven't even gone to court yet & i'm $4000 in debt.

as for the case itself, i'm fairly confident that i could argue for dismissal of all charges personally & win. but i'm hoping an attorney can be found that will do that for me.

1) violations are sole "Reasons For Stop" (Section 2 of summons); "Erratic Operation" is unchecked & no notes are written in the area provided

2) NY VTL 375(3)

per arresting officer's court summons:
"Section 1. General Information ...
Traffic[Conditions]: 'NON'"

i don't even have to cite precedent -- the officer's own report impeaches him. the statute cited describes "dazzling" use of headlights impeding the vision of drivers either 200' directly in front of me or approaching me at a distance of 500' in an oncoming lane. nowhere in the entirety of the larger statute (including the cited section) is the use of highbeams explicitly or implicitly prohibited. the court (if it's adhering to the constitution, appropriately interpreting the cited statute & applying common knowledge of the road lighting in this very rural, underlit, wildlife rich area) is compelled to rule no/'non' traffic means no/'non' violation.

3) 1163(d)

the intersection of matthews street (NYS HWY 17M) & west main street extension has a one-way stop sign at the corner. approaching the stop sign on matthews street (NYS HWY 17M) -- as i was on that evening -- a driver has two options: turn right at a 90 degree angle onto west main street extension OR bear left at roughly a 160 degree angle & remain driving in a north-westerly direction on NYS HWY 17M/6; proceeding straight is not an option. the statute cited calls for the necessity of using signals when "turning". according to every bit of documentation i've been able to dig up (from the NY DMV) a "turn" from a full stop is defined/illustrated as forward movement of a vehicle at a 90 degree (or less) angle. my progress at the intersection (bearing left) falls under "right of way" rules (better described in NYSVTL 1141 & 1142, as well as Chapter 5 of the NY DMV's own 2009 'Driver's Manual'); "right of way" rules do not explicitly or implicitly describe the necessity for signaling.

again, the court (if it's adhering to the constitution, appropriately interpreting the cited statute & fairly evaluating the physical evidence [state maps, photographs of site, aerial views taken from google maps, etc.]) is compelled to rule that the statute cited does not apply & therefore can't serve as a legitimate "Reason For Stop".

with no "Reason For Stop", there is no case.

believe me, i'm not stopping there or assuming that the court (in my case, almost certainly being embodied by the judge who was in a rather cavalier & punitive mood the morning i was 'arraigned') is going to be "reasonable" or, frankly, anything less than openly vindictive.

i'm curious to get your input -- if you have any. either way, i'll accept the answer & get back to work.
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer,

I want to apologize too. Sometimes when a customer is from my own state, I neglect to remember that what's very familiar to me isn't always that way to the customer. I realized you'd been researching, which isn't bad. However, it made me assume that you were going pro se, which I always think is dangerous. Knowlege of the ins and outs of actual (not on-paper) procedure as well as the applied and black-letter law is what makes the day to day system run. Pro se defendants usually get in their own way by focusing on the wrong things at the wrong time, and getting judges very angry at them. I'm glad to hear that you will have a lawyer, and hopefully you'll have one who can use at least some of the fruits of your labor.

I'm about to go and cook dinner. I will read your last thread again with more care, once I"ve eaten. I will address your post at some point this evening. But there is one thing I'm curious about. In my part of NYS (Manhattan) traffic tickets are handled in traffic court, and the only thing that comes before the judge in Criminal Court would be the DWI charge. That means that here, an attorney cannot get the traffic infractions dismissed because the court has no jurisdiction over them. That was why I did not feel you were on the right track -- or rather that your research would be useful, but not for the purpose you think.

It occurred to me the following day that elsewhere in the state, the criminal and civil offenses could possibly be handled in the same court and by the same judge. So while I eat, can you tell me whether you were arraigned on all three charges or just on the DWI? And whether your criminal court has jurisdiction over the traffic offense or they must be litigated elsewhere? I will need that answered to know the direction of my reply.

Edited by FranL on 4/4/2010 at 12:47 AM EST
Customer: replied 4 years ago.
fran,

i'm a city mouse to my very core -- lived on east 88th street for 13 years before moving here to my sister's place in order to avoid eviction proceedings. i was born in nyc (brooklyn), grew up in the city's foster care system throughout the 70's, & i've never felt at home anywhere else. told my sister this evening that once this whole thing is over i'm going back even i have to live out of box on the east river.

this place is hell for me in so many ways.

i drove in nyc for more than 25 years & had never even got pulled over for suspicion of DUI. worst thing on my driving record is two speeding tickets more than 12 years apart. i grew up in the east village of the late 70's & 80's & managed to avoid arrest my entire adult life.

i'm not a criminal & i'm not someone who makes the decision to take the wheel of his sister's car after drinking lightly -- i kept it to 1 drink per hour (4 beers between 8 - 12 PM).

in answer to your question:

1) frankly, i have no real idea of what i was 'arraigned' on (it was nearly 7:00 am & i had been up for 24 hours at that point); i just remember a grumpy, overweight man sitting at the officer's desk, going over some paperwork that i couldn't see (i was handcuffed to a chair), asking me if i was who i was, if i lived where i stated, advising me of my rights, asking me if i had a job, assigning me to legal aid, & entering a plea of "not guilty" without even asking me for any input. and then he was gone, my license was confiscated & i was brought to jail on $2,000 bail / $10,000 bond.

2) the court summons i was given includes the recently discussed violations in addition to NYS VTL 319(1) -- i was unable to produce my sister's insurance card readily -- & PL 220.03 CPCS 7th -- i had in my possession 4 prescription diazepam in a bottle with a worn label.

that suggests pretty clearly to me that i'm going to one court for the whole ball of wax. am i missing something?
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer


The site's had technical problems this evening, so I don't even know if I can get this post to go through.

Once you get hooked on NYC, everywhere else becomes just a place to visit. I'm a bona fide urbanite too, though I was raised right on the Jersey side of the Holland Tunnel and it took me a while to get to Manhattan.

Your arraignment experience is pretty typical. The powers-that-be will push to get you before the judge as quickly as possible. Public defenders staff the arraignment part during all shifts and take on all comers, indigent or otherwise, who are not represented by counsel. A defendant's eligibility for a public defender is determined later, if at all. But every jail case gets to have a lawyer in this state.

The whole purpose of arraignments is to learn what your charges are and to get a determination as to bail. Your lawyer was right to plead you not guilty. It's the only plea a defendant should ever make at an arraignment. It preserves all of your rights and all of your choices.

If your court summons gave you one date and location to fight the 1192.2, the 220.03, and the three traffic infractions, then the judge would be capable of dismissing any of the charges against you. (He may or may not be the same judge you saw at arraignments). And you are absolutely correct. If the stop falls, then everything that flows from the stop falls too, and the case is over.

I like what you want to do. But what you can't do is assume that you can walk in on your next date and argue on the record that your cases should be dismissed for all the reason you listed above and expect to prevail. You will be shut down/shut up very quickly. There's a way to proceed, and a time in which to do it.

More on that tomorrow.

Edited by FranL on 4/4/2010 at 4:03 AM EST
Customer: replied 4 years ago.
fran,

jeez, now i really feel like a heel. you've given me more than good legal advice (above & beyond on that count) -- you've communicated with me humanely & with respect.

and you made me remember & genuinely feel (almost at a visceral level) the warmth of home. talk all you want about the integrity & 'values' of the 'simple folk' in SmallTown America. it's all hot air to me. new yorkers have the biggest hearts in the world ... period.

you're owed at least another 18 bucks & some very glowing feedback from me. i've tried doing that from this main thread page & your "feedback" pop-up but have come up empty. if you could tell me how to do that, i'd appreciate it.

not to belabor this any further, but to clarify & just get it out for some kind of public record -- not to mention my own sense of relief:

1 - I NEVER WAS GIVEN THE OPPORTUNITY TO DISCUSS MY ARREST OR PLEA WITH COUNSEL; at my 'arraignment' the judge DID NOT VERBALLY REVIEW MY CHARGES & ASK WHAT MY PLEA TO THOSE CHARGES WAS IN THE ABSENCE OF COUNSEL -- HE SIMPLY TOOK IT UPON HIMSELF TO ENTER A PLEA OF "NOT GUILTY' ON MY BEHALF & HAVE ME SENT TO JAIL.

2 - I WAS NEVER VERBALLY ADVISED THAT I WAS UNDER ARREST

3 - I WAS NEVER VERBALLY ADVISED OF THE CHARGES AGAINST ME NECESSITATING MY ARREST

4 - I WAS NEVER VERBALLY ADVISED OF MY MIRANDA RIGHTS BY THE ARRESTING OFFICER

5 - I NEVER VERBALLY ACKNOWLEDGED HAVING BEEN ADVISED OF MY MIRANDA RIGHTS

6 - I NEVER VERBALLY WAIVED ANY OF MY RIGHTS GUARANTEED UNDER THE MIRANDA STATUTE

there ... i feel a lot better.

hope you're having a great day in the sunshine down in the apple.


thank you again,


peter
Expert:  Zoey_ JD replied 4 years ago.
Hi Peter, and a happy holiday to you,

Thanks for the kind words. Haven't finished here yet. I was planning a quick crash course in NYS jurisprudence so you would understand what you've got going for and against you. But I'll address your 6 points for now:

1) The NYS criminal justice system is overtaxed. Want to see revolving door justice at its best? Sit in an arraignment part and spend a day watching the action. It's not unusual that there's no time for you and your assigned counsel to have bonded. He may have also thought that you were his "for arraignment only." As an other than run of the mill Legal Aid client, he likely assumed that you'd retain private counsel after this

2) Not guilty is the only correct plea for an arraignment. It's pretty characteristic of judges here when confronted with a defendant on his first arrest to just say something like, "And your client pleads not guilty, right?" to your lawyer, who says, "Yes, your honor." You have no way of knowing at the time that you're not being railroaded by that move and that, in fact, what both your judge and your lawyer were doing was quickly making sure that you could say nothing at all on the record because, just like they say on television, anything you say in court can be used against you, even what you think won't. 3) It would be nice for your arresting officer to have told you all you were charged with. That he didn't, unfortunately, doesn't invalidate the arrest. In fact, sometimes, when the police report the incident to the DA, the DA sees other or different charges from what the cops thought, and will adjust the charges accordingly. Police enforce the laws, but they don't study their separate elements, and there are frequently changes between the arrest and the arraignment. 4) Miranda stands only for the proposition that a defendant cannot be questioned about his case post-arrest. Lack of Miranda warnings only applies if the police took post custodial statements about the incident from you. If you made none and/or signed no confession, Miranda is quite simply, inapplicable. If you did make statements, then these can be challenged at a supression hearing, along with the probable cause for the stop of your car. There are exceptions to the Miranda rule,and if your police officer says he never read you your rights (don't count on that) you can bet he'll try to portray any statements of yours as an exception. 5) and 6) See 4.

Quick cut to what your lawyer probably didn't have time to tell you but your next lawyer should: every criminal defendant has two broad choices -- plea or trial. The problem with a plea is that the best offers are on the table early (expect one at your next court date) and that in order to take it, a defendant is expected to waive the right to challenge the evidence against them. That's because, from the DA point of view, if the prosecutor has to put a lot of time into the preparation of a case, he might as well try it. If the defendant, on the other hand, is willing to save the DA some time and work, they will repay the favor in some way.

The other side of the coin is the trial side. All offers are off the table by the time a trial begins. A DWI carries a maximum of a year in jail, and if a defendant is convicted after trial at least some incarceration and maybe the whole year, depending on what facts are elicited at trial, will be imposed. Your maximum risk is a year in jail.

Lots of defendants feel very pressured to have to make a decision (especially one between two lousy alternatives) before they can even see all of the evidence against them, and I can assure you that you won't like that either. I don't expect, however, that with this type of a case, you'll get a "today only" kind of offer, but your lawyer should tell you if/when that is ever so.

If you want to challenge the stop and search and any statements or other Constitutional violations of your rights, you will have to move the case to trial. Although a lawyer can mount an early argument for dismissal, it's usually not a good idea, unless he's sure that it's going to get granted. That's because unlike the defense, the prosecution in a case has the benefit of full disclosure of the evidence against a defendant, while the best single weapon a defense attorney has at trial is surprise. So putting cards on the table too early on a trial case may serve only to give the DA that much more time to prepare a better case against you.

Your lawyer might be able to get a probable cause hearing for you early. If he tells you that he thinks it's unwise, it's because he doesn't think the court will throw out the stop and the case and that you will have then given too much of your defense away too early.

Suppression hearing in NY typically come right before trial actually starts.

When you go looking for your next lawyer, Legal Aid or otherwise, insist on a sit down so that you can learn what you need most to know in order to assist your counsel. And if he won't do that for that for you, shop for a new one. And, before I forget, make sure you show your lawyer a valid prescription for your drugs. Sign a waiver if necessary for him to be able to talk to your doctor and assure the judge and the court that the drugs found in the case were legally prescribed to you. If you can do that, that count should go away quickly.

___________
If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your State for specific legal advice.

Edited by FranL on 4/4/2010 at 7:47 PM EST
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17117
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Customer: replied 4 years ago.
fran,

thanks so much for everything & a happy holiday to you!

meeting with a lawyer on tuesday afternoon & feel much, much better prepared. i'm scared to death & i'm angry & just overwhelmed by a mad sense of anxious energy -- a prolonged, exhausting tripping of my 'fight or flight' response.

your advice & insights are harsh, but i'd rather know the reality of what i'm up against & prepare for that.


best,


pete
Expert:  Zoey_ JD replied 4 years ago.
Thanks for everything, Pete.

I hope you and your lawyer are a good fit. The system can be callous, abrupt, and, except in front of a jury, skewed in the direction of the state. But if you can roll with the punches, it can be beaten. A sense of humor helps.

If you need to touch base, you can reopen the thread or post a new question in the Criminal category with For FranL in the subject line. I'll find it.

Best of luck!

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