Long Island DWI Crash

On March 13, 2016, in Criminal, Litigation, Motor Vehicle Accident, Personal Injury, by John A. Weber IV, ESQ.

 

Long Island DWI Crash

A motor vehicle accident in Kings Park seriously injured a passenger and resulted in a DWI charge for the driver.  The passenger was taken to the hospital by helicopter.  The driver’s arraignment will take place in Central Islip’s First District Court today.  DWI’s remain a very serious problem on Long Island.

The passenger injured in the accident will be permitted to file a No Fault insurance claim through the insurance of the vehicle he was riding inside.  This passenger may also be able to recover compensation for his injuries in a personal injury lawsuit.  Compensation for such an accident will require litigation.  In motor vehicle accident cases, it is also necessary to explore umbrella insurance coverage because often times the policy limits for the vehicle are insufficient to make the victim whole again.  Asset searches should be explored in the event that all insurance coverage options are lacking.  Although the well being of the victim is always the primary concern, it is important to know your rights if you are unfortunate enough to be the victim of a DWI or DUI related accident.

To get a fuller perspective, this story is available on Newsday.com authored by Lisa Irizarry, and News 12 Long Island.  The epidemic of DWI and DUI incidents on Long Island does not seem to be subsiding and injuries and fatalities are still a concern.  Personal injury and wrongful death actions are regularly commenced in Nassau and Suffolk County Courts because Long Island roads are still filled with drivers who have had too much to drink before getting behind the wheel.  Hopefully, this will change in the near future; but for now, knowing your rights are the best we can settle for.

DWI Attorney in Long Island

If you are arrested for a DWI or injured in a DWI related crash, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 to speak to an attorney who can help you today!

DWI on Long Island

On March 10, 2016, in Criminal, Litigation, Motor Vehicle Accident, Personal Injury, by John A. Weber IV, ESQ.

(Image from nytimes.com)

DWI Issues and Long Island

DWI – Driving While Intoxicated aka Drinking and Driving. Drinking and Driving is a problem that has plagued Long Island.  Nassau County and Suffolk County have a major problem with drunk drivers on their roads.  There was an informative article in the New York Times on July 24, 2015 written by Kirk Semple,  that caught my eye.  Drinking and Driving has an impact on all Long Islanders.  It is worth taking a minute to read this New York Times article if you have time.

Drinking While Intoxicated causes grief for the families of both the perpetrator and the victims.  For the individual caught driving while intoxicated, attorneys fees, impound fees and facing criminal charges should be sufficient deterrents.  For some reason, especially on Long Island, they have not deterred enough drivers from driving while intoxicated.  For victims of DWI incidents, there are many consequences as well.  Medical treatment, if they are lucky enough to survive, time investment for personal injury suit to be compensated for damages suffered, lost time from work and a myriad of other issues are often the results.  As set forth in the article, Long Island is particularly hard hit by DWI incidents.

DWI Attorney in Long Island

If you or a loved one have been arrested for DWI or DUI or have been in an accident where drugs or alcohol have contributed, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 to speak to an attorney who can help you today!

 

Driving While Intoxicated

The Defendant was charged with, among other things, Driving While Intoxicated or DWI (VTL 1192). Defendant challenges the stop and subsequent arrest. Defendant further claims that the results of his blood alcohol test should be suppressed because his right to counsel was violated. The officer, a veteran in driving while intoxicated detection, pulled over the defendant inquired as to whether the defendant had anything to drink. At first, the defendant denied drinking anything. Sobriety tests were performed and a portable breath test came up with results of .07 and .08. The police officer asked the defendant again if he had anything to drink to which the defendant responded that he drank a sip of wine. The defendant was taken into custody and asked to speak to an attorney.

“A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 NY3d 544, 549 [2012]; People v. Gursey, 22 NY2d 224, 227 [1968]). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 1.

Because certain phones within the police station were allegedly not working, the Police Officer “allowed defendant to use his (Officer Winn’s) own private cell phone.” Pp. 4. Seems innocent enough, right? Wrong. “[B]ecause Officer Winn was concerned that defendant would break his cell phone (Officer Winn explained that, on a prior occasion, a defendant broke his phone), the Officer held the cell phone, while defendant used the speakerphone feature to speak to his wife and then his attorney.” Id. Why would the officer make that assumption? The law in regards to the right to counsel in New York Driving While Intoxicated cases is quite clear:

In People v. Gursey, 22 NY2d 224 (1968), the Court of Appeals recognized that a defendant has a qualified right to consult with an attorney about whether to submit to a breath test when under suspicion or arrest for driving while intoxicated. The Court acknowledged that alcohol dissipates rapidly in the body and therefore a breath test is time sensitive (id. at 229). However, so long as communication between lawyer and client does not “interfere unduly” with administration of the breath test, the police cannot “prevent access between the criminal accused and his lawyer” (id. at 227). The Court elaborated that a telephone call to an attorney would conclude in a matter of minutes and therefore would not interfere with the investigative procedure (id. at 228). Accordingly, “the denial of defendant’s requests for an opportunity to telephone his lawyer must be deemed to have violated his privilege of access to counsel” (id.).The Court of Appeals has reaffirmed the rule in Gursey twice in recent years (see People v. Smith, 18 NY3d 544, 549 [2012] [“as we explained in Gursey, the right to seek the advice of counsel — typically by telephone — could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure”]; People v. Washington, 23 NY3d 228, 234 [2014] [failure of police to notify defendant, after she had consented to chemical breath test, but before she had performed it, that an attorney had telephoned the station on her behalf, violated her qualified right to counsel]). A violation of defendant’s qualified right to counsel generally requires suppression of the breath test results (Smith, 18 NY3d at 550; Washington, 23 NY3d at 232)….The right to counsel includes “the right to consult counsel in private, without fear or danger that the People, in a criminal prosecution, will have access to what has been said” (People v. Cooper, 307 NY 253, 259, 120 NE2d 813 [1954]; see also People v. Gamble, 18 NY3d 386, 396 [2012][“[i]ntrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court, contravenes our sense of traditional fair play and due process”] [citations omitted]; Coplon v. United States, 191 F2d 749, 759 [DC Cir.1951] [the Fifth and Sixth Amendments “guarantee to persons accused of crime the right privately to consult with counsel both before and during trial. This is a fundamental right which cannot be abridged, interfered with, or impinged upon in any manner”]).

Pp. 5-6 (external quotation marks omitted and internal citations preserved). Here…. “Suppression is necessary because the police violated defendant’s limited right to counsel when they would only permit defendant to talk to his lawyer on speaker phone in the presence of third persons.” Pp. 5. Not only did the police officer not have a phone which the defendant could use in private, the police officer held the phone while the defendant listened through the speaker phone feature… on video. “Once afforded, if the right to counsel is to have any meaning, the communication between lawyer and client must be private.” Pp. 6. As if it is not strange enough that there were no private phones available in the police station (what about all the other suspects who wanted to speak to an attorney), one might ask where the defendant’s cellular phone was. After all, everyone has a cellular phone these days: “This result is all the more appropriate given that the police had confiscated defendant’s phone, and, therefore, defendant could not use his own phone to call his attorney. If Officer Winn was so concerned that defendant would have broken the Officer’s phone, he could have given back defendant his own phone to use.” Pp. 7 (emphasis added).

“In conclusion, defendant’s qualified right to counsel was effectively destroyed when the officer: (1) placed the entire conversation on speakerphone; (2) stood so close that he could overhear the entire interchange and even answer some questions himself; and (3) recorded the entire conversation on video. Accordingly, the court suppresses: (1) the results of the breath test; (2) any statements defendant made to his counsel; and (3) that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 7. The Court suppresses the breath test results and the portions of the video containing statements the defendant made to his attorney.  The case is People v. Moffitt, 2014NY060669, NYLJ 1202745797904, at *1 (Crim., NY, Decided November 17, 2015)

DWI Attorney in Long Island

If you have taken a breath test or have questions about breath test, call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak to a criminal attorney today!

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Public Safety Exception to Miranda Warnings

On April 21, 2013, in Criminal, Message/News Board, by Robbie L. Vaughn, Esq.

Miranda Warnings

Miranda Warnings and the Public Safety Exception*

When Miranda Warnings must be given:

1.  Miranda Warnings must be given prior to any questioning if you have Custodial Interrogation by Authorities (CIA)**:

Custody – Custody involves a significant deprivation of freedom of movement and occurs when a person is not free to leave. Orozco v. Texas 394 Us. 324 (1969)

Interrogation – Interrogation includes not only questioning by express words, but by any words or actions that police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis 446 U.S. 291 (1980).

Authorities – Only government agents are authorities and required to advise a suspect of his Miranda rights.  However, if the seizure or questioning was instigated or closely supervised by the police, then this might constitute sufficient state involvement requiring Miranda warnings.

** All 3 must be present to require Miranda Warnings.

 

PUBLIC SAFETY EXCEPTION

Under the Public Safety Exception:

1. The police may ask questions, of a suspect who is in custody, without first giving Miranda warnings when an imminent threat to public safety exists, such as a loaded gun in a public place, a bomb, a missing kidnap victim, or a victim being held hostage. New York v. Quarles, 467 U.S. 649 (l984).

2. The public safety exception can be applied when the concern is for an individual and not just the public; where an individual’s life is at stake. Some courts have referred to concern of an individual as opposed to the public as the “Rescue Doctrine” or the “Emergency Exception.”

Public Safety Exception example:

The police were stopped by a woman who had just been raped and advised that the perpetrator had run into a nearby supermarket. Upon entering the supermarket the suspect fitting the perpetrator’s description, fled to the back of the store. Upon confronting and frisking the suspect, who was wearing an empty shoulder holster, the arresting officer asked:

“Where is the gun?” without administering Miranda warnings. The suspect pointed to a carton and stated, “Over there.”

The statement and the gun were deemed admissible. New York v. Quarles, supra.

*The above is only a small portion of a presentation that I gave earlier this year on Miranda Warnings. I do not claim to be a Miranda expert, but I do believe the above provides a basic explanation of  the Public Safety Exception to Miranda Warnings.

Long Island Criminal Attorneys

 The Law Firm of Vaughn, Weber & Prakope, PLLC, can be reached at (516) 858-2620.

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