Articles Posted in DWI/DUI

Under New York law, if a person is pulled over for suspected driving while under the influence of alcohol, the driver must submit to a chemical test (breath, blood, urine, or saliva), as a matter of “implied consent.” This does not mean that drivers absolutely have to submit to a chemical test. The purpose of the implied consent rule is to encourage drivers to consent and obviate the need to get court orders authorizing blood tests.  Drivers can certainly refuse to take a breathalyzer or other chemical test.  However, with refusal comes the serious consequence of a 6 month license suspension and a $300 fine. If the driver refuses again within 5 years of a previous DWI related offense, the consequences are a mandatory 1 year license suspension and a $750 fine.  These penalties are in addition to any penalties related to a DWI or similar offense conviction.

In People v. Odum, defendant Odum was arrested for DWI and taken to the police station. He was not asked to take a breathalyzer until over two hours after he arrived at the police station.  He refused.  The police officer then gave Odum the statutory warning related to the consequences of refusing the breathalyzer, including that Odum’s refusal to consent to the breathalyzer would be used against him as evidence in his trial.  After hearing the refusal warnings, Odum changed his mind and consented to the breath test which confirmed that his blood alcohol level was over the legal limit.  Odum later petitioned the court to suppress the breath test and his initial refusal to take it.

The rules related to the breath test requirement are detailed and clear. Because of New York’s implied consent provisions, a refusal to take the breath test or any other chemical test in conjunction with being stopped on suspension of driving while drunk is a violation of the law  with consequences. A driver can be convicted of refusing to take a chemical test and be acquitted of DWI charges.

This proceeding involves a motion by Westchester Medical Center for summary judgment upon Progressive Casualty Insurance Company’s failure to either pay the Hospital’s no-fault benefits or deny its claim within 30 days as required by Insurance Law § 5106(a).

The court denies the motion.

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People v. Romano

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People v. Johnson

Court Discusses Questioning an Intoxicated Defendant after Receiving Miranda Rights

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Court Discusses the Motion for Summary Judgment in Relation to the Serious Injuries Sustained by the Plaintiff

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The defendant was charged with driving while intoxicated on April 10, 1983 and was ordered to return to court on May 12, 1983. The defendant failed to appear on the specified date and a bench warrant was issued for his arrest after a felony complaint was filed charging the defendant with two counts of operating a vehicle under the influence of alcohol DWI, committed on April 9, 1983. The defendant appeared in court on May 17, 1983 where the matter was adjourned to June 3, 1983 in order for him to have legal representation. On June 3, 1983 the matter was again adjourned, the request of the defendant’s attorney in order for the attorney retained to become familiar with case until June 30, 1983. The matter was further adjourned to August 31, 1983 by the Court because the defendant’s Queens County Criminal Attorney was getting married.

On August 31, 1983, the matter appeared on the Criminal Court Calendar where the matter was adjourned to October 14, 1983 with consent by both the defense and the prosecution. The trial date of October 14, 1983 was set to be final date where the matter would be brought before a grand jury or there would be a dismissal of the case against the defendant. On October 14, 1983 the prosecution indicated that the case was not ready and as such the case was dismissed. However, on January 6, 1984 the defendant was indicted for two counts of operating a vehicle under the influence of alcohol DWAI committed on April 9, 1983. The defendant filed a motion to dismiss the case on the ground that he was denied a speedy trial (Criminal Procedure Law 30:30) because he defendant was indicted after the six months period had elapsed. No drug of any kind was found.

The trial was to commence on May 17, 1983 when the defendant appeared in court after the bench warrant for his arrest was issued. However, there was a delay of almost eight months when the indictment was filed on January 6, 1984. The People could not be considered ready for trial until the indictment was filed. The CPL 30.30 subsection 4 paragraph B excludes periods of delay at the request of the defendant or his counsel or with consent of defense counsel. The period of adjournment at request of defendant or his attorney between filing of accusatory and prosecutorial instruments was not subject to being excluded from computation of time within which the People must be ready for trial under the speedy trial rule unless it resulted in a delay to the prosecution. The two-month period of adjournment which was granted to trial counsel following the defendant’s appearance on the complaint so as to allow the defense counsel to get married was not an impediment to the People in obtaining an indictment. Hence, the two month adjournment was not subjected to being excluded from the computation of time within which the People were required to be ready for trial. A dismissal of the matter was required when the indictment was not filed within six months required by speedy trial rule. The period in which the People requested an adjournment was not excludable period since it was not requesting the defendant or his counsel. The period in which the case was dismissed to when the indictment was filed is also not an excluded period. The statutory obligation to be ready for trial within six months after commencing a felony action was not postpone with the dismissal of the case. As a result, the defendant’s motion to dismiss the case pursuant to the CPL 30:30 on the ground he was denied a speedy trial was granted.