Be the attorney you dreamed of being. Jump start your career with Tully Rinckey PLLC: http://www.tullylegal.com/careers/ November, 2015 - This course will be led by Tully Rinckey PLLC Partner Donald E. Kelly, Esq. Mr. Kelly will draw upon his more than a decade of experience as a criminal defense attorney handling misdemeanor and felony cases to assist attorneys of all levels of skill and experience in improving their legal knowledge regarding DWI and related offenses. Mr. Kelly will provide guidance to attorneys on the Vehicle and Traffic Law in the context of alcohol and drug related offenses and procedures. Mr. Kelly will also provide insight into potential defenses to these crimes and how and when to assert them, in addition to other related issues.

1. 1
Donald Kelly, Esq.
Tully Rinckey PLLC
507 Plum Street, Suite 103
Syracuse, New York 13204
315-492-4700
dkelly@1888law4life.com
An Overview of DWI & Other Alcohol
Related Offenses
©2015

2. 2
About Your Presenter
©2015
 Tully Rinckey PLLC Managing Partner.
 Has over 17 years of experience practicing criminal law.
 Don has been lead counsel in several high profile homicide and narcotics
cases and has successfully secured outright dismissal of cases for clients
charged with Murder and Class “A” Drug Felonies.
 Don joined Tully Rinckey PLLC in 2012 after running his own criminal
defense practice in Syracuse for a decade.
 Don officiates scholastic football games in Central New York and serves
as a Senior Hearing Examiner in the Syracuse Parking Violations Bureau
where he adjudicates citizen complaints against the City of Syracuse
regarding parking tickets.
 Additionally, he is past Vice President of the Onondaga County Bar
Association's Assigned Counsel Program Board of Directors.

3. The Stop/The Use of
Roadblocks
 Reasonable suspicion of criminal activity is a broad category
encompassing any violation of law from equipment violations to
felonies.
– People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67,330 N.E.2d
39 (N.Y., 1975)
– Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391 (U.S.,
1979)
3
©2015

4. 4
 In People v. Ingle, the defendant was a minor operating an
antique car. He was pulled over because the police officer
questioned whether the driver was in legitimate possession
of an antique car.
 Similarly in Delaware v. Prouse, the defendant was stopped
as a result of a "routine traffic stop" The Court held that the
police may not stop a vehicle as a matter of routine. "Absent
an articulable reason or reasonable suspicion of criminal
activity, such stops may not be made."
©2015
Reasons Why Vehicle and Traffic Stops
Have Been Invalidated:

5. Whren at first you don’t succeed, you invent . . .
5
©2015

6. The Pretext Stop!
Whren v. United States, 517 US 806 (1996)
People v. Robinson, 97 NY2d 341 (2001) – Adopting Whren
Law Enforcement doesn’t necessarily need a good reason to
effect a stop, they only need a legal reason. Even if they
never have stopped anyone before for that legal reason
before.
• Obstructed View
• Crossing a Fog Line
• Failure to Signal within 100 feet of an intersection.
• Failure to Dim Headlights
Even if the officer admits that the VTL violation was a mere
pretext for another investigation the stop is not invalidated so
long as the officer observed a VTL violation
©2015

7. 7
 In determining whether there is reasonable cause to
believe that a person is driving while intoxicated, it is
common for police officers to use field sobriety tests
designed to test a person's coordination. People v.
Sheridan, 596 N.Y.S.2d 245 (N.Y. App. Div. 4th
Dep't, 1993)
 There Is no legal requirement that a driver submit to
the Field Sobriety Test but refusing to do so is not
without consequence.
©2015
Field Sobriety Tests:

8. 8
 The Court of Appeals has held that evidence of
a defendant's refusal to perform sobriety tests is
admissible despite the existence of Miranda
warnings. The Court found that the refusal is
not contemplated within the meaning of the
Self-Incrimination Clause. People v. Berg, 92
N.Y.2d 701 (N.Y. 1999).
 It is often better to keep one’s mouth closed
and be thought a fool than to open it and prove
the point. If the case goes to trial it is easier to
rebut the presumption that it is to rebut the
proof.
©2015
Use of Consciousness of Guilt for Failure
to Perform Field Sobriety Tests:

9.  Horizontal Gaze Nystagmus (HGN)
– Like being able to float in salt water easier, the
addition of alcohol to the fluid surrounding the
eye impacts the way the eye moves through that
fluid. The principal effect being a significant
vibration of the eye as it moves to points of
maximum deviation.
– Other Factors can mimic the condition (such as a
neurological disorder). Also subject must be
facing away from any source of flashing lights.
– 77% Accuracy Rate 9
©2015
The Standardized Field Sobriety Tests:

10. Walk-and-Turn (WAT)
• Subject is requested to take 9 steps in either
direction with a choppy pivot in the middle.
• This test was standardized using a flat dry surface
with a painted or tape line – in practice it is often a
wet inclined surface with an imaginary line. It is
arguable that the test is not probative unless
administered under the standardized conditions.
Use of an expert witness is key.
• 68% Accuracy Rate under optimal conditions
©2015

11. One-Leg Stand (OLS)
 The subject is asked to raise one leg so that the foot
hovers approximately 12” off of the ground.
 Subject is instructed to count aloud while holding the
foot off the ground.
 The subject is not informed how long the officer
expects the subject to count with the foot raised.
 Same test condition difficulties that are faced in the
walk and turn.
 65% Accuracy Rate under optimal conditions.
11
©2015

12. If the Subject Fails All Three . . .
 The accuracy rate jumps to 82%. That is, nearly
one in five people subjected to the test will fail
regardless of the fact that their individual BAC is
less than .10%.
 That standardized test cannot prove intoxication, it
can only serve as proof that one’s blood alcohol
level exceeds a certain threshold. At the time the
tests were standardized the threshold was .10%.
The tests have been neatly converted to prove
blood alcohol over .08% without employing the
scientific method. 12
©2015

13. Don’t Forget . . .
 The officer administering the FST is also looking for
extraneous information (or mining probable cause)
that are unrelated to the physical aspects of the test.
The ability to follow direction, appropriately respond
to questions and instructions, slurring words,
behavior between tests and other matters may be
used to convict at trial.
©2015

14. Alcohol Breath Screen:
• The most common type of device is the Alco-
Sensor, a portable pocket sized device regularly
carried and used by police officers to help establish
probable cause for a DWI arrest, and or to rule out
the use of alcohol in a suspected DWAI Drugs
case.
• A DWI suspect's breath sample does not constitute
"evidence of a testimonial or communicative
nature." And therefore the Alco-Sensor test does
not implicate the Fifth Amendment. People v.
Brockum, 88 A.D.2d 697,451 N.Y.S.2d 326 (3d
Dep't 1982). In fact, the alco-sensor result itself is
inadmissible at trial.
14
©2015

15. 15
Chemical Tests:
 The term is used to refer to a test of the alcoholic
and/or drug content of a DWI suspect's blood using
an instrument other than a preliminary breath
screening device. Since 1954, the most common
type of breath test device used in NY was the Smith
& Wesson Breathalyzer Model900 A.
 However, the Breathalyzer is now considered
outdated and is no longer in use. Modern breath
test devices use a process known as infrared
absorption spectrometry.
©2015

16. The Two Hour Rule:
• The Two Hour Rule provides that a chemical test must
generally be administered within 2 hours of either the time of
arrest for a violation of VTL §1192 or the time of a positive
breath screening test, whichever is later. People v. Zawacki,
665 N.Y.S.2d 172 (N.Y. App. Div. 4th Dep't, 1997)
Waiver/Exceptions to Two Hour Rule:
• However, when a chemical test is administered more than two
hours after arrest, the results are inadmissible at trial without
expert witness testimony demonstrating that the delayed result
is indicative of the defendant's BAC at the time of operation.
16
©2015

17. 17
©2015
 At any given temperature, the ratio between the
concentration of alcohol in the blood and that
found in the alveolar air in the lungs is constant.
People v. Jones, 461 N.Y.S.2d 962 (Albany Co.
Ct., 1983).
 This ratio is not consistent among the
population and the ratio varies from person to
person.
 The threshold BAC currently deemed to
constitute legal intoxication in NYS is .08%.
VTL § 1195 sets forth the standards with regard
to chemical test evidence.
Henry’s Law:

18. 18
 First, like a refusal to take the FST the refusal can generally
be used against the defendant in a VTL §1192 prosecution as
"consciousness of guilt" evidence.
 Second, the refusal is a civil violation in and of itself, which
results in proceedings before a DMV Administrative Law
Judge ("ALJ"), where if the defendant is found to be in
violation, a mandatory one year driver's license revocation,
and a $500.00 civil penalty are assessed. VTL§1194(2) sets
forth the penalties for refusal.
 Third, the civil penalties above are preferable to a prison cell.
©2015
Refusal:

19. 19
 Probable Cause: CPL §140.05 sets forth the
statutory authority for a warrantless arrest. CPL
§140.10 defines the power of a police officer to
make a warrantless arrest.
 Upon arrest for DWI, the police may search the
defendant's person incident to the arrest, and
thereafter can potentially search the
defendant's vehicle under the automobile
exception to the warrant requirement.
©2015
The Arrest:

20. 20
 One of the essential elements of a VTL §1192
charge is "operation“ of a motor vehicle. This
issue can be of great significance, where there
is an accident and no operation is observed, the
driver is found sleeping or unconscious behind
the wheel, and or there are several passengers
in the vehicle. People v. Marriott, 37 A.D.2d
868 (3d Dept. 1971).
 Operation can be proved by circumstantial
evidence.
©2015
Operation:

21. 21
 §1192 (1) DWAI
 The elements of DWAI
are:
– i. Identification
– ii. operation;
– iii. motor vehicle
– iv. while;
– v. impaired by
alcohol.
©2015
The Offense
 §1192(2) DWI; per se
 §1192(2-a) Aggravated
DWI:
 §1192(4) DWAI/Drugs:
– Drug Recognition
Expert (DRE):
 §1192 (3) DWI; Common
Law:
 The elements of
common law DWI are:
– i. Identification;
– ii. Operation;
– iii. Motor vehicle;
– iv. While (i.e.
operation and
intoxication must be
simultaneous); and
– v. Intoxicated by
alcohol.
 §VTL 1192(2-a)(b)
Leandra's Law
 Zero Tolerance Laws:
VTL §1192-a,

22. 22
 Accusatory Instruments: Pursuant to N.Y. Crime Proc.
Law §100.05 a criminal action may be commenced by the
filing of an accusatory instrument with a criminal court.
– i. that the defendant operated the vehicle;
– ii. that the defendant was intoxicated; and
– iii. that the operation and the intoxication were
simultaneous.
 Where a defendant is charged with common law DWI
despite the existence of a BAC reading of less than .08%,
the accusatory instrument must do more than follow the
"check sheet" format of the standard DWI supporting
deposition.
©2015
The Prosecution:

23. 23
 The primary factors that an ADA considers in arriving at a proposed
disposition are:
– i. the charge and the facts upon which it is based, including
whether there was an accident;
– ii. the defendant's age;
– iii. prior record;
– iv. chemical test result, or refusal; and
– v. circumstances of the arrest, including the defendant's attitude
and behavior at the scene.
● Limitations on Plea Bargaining – Onondaga County
• Felony Plea Required for Leandra’s Law
• DWI Plea Required where original charge was Aggravated DWI
• Aggravated DWI plea required where BAC exceeds .20%
©2015
Plea Bargains:

24. 24
 §1193(2) (e) (7) is known as the "prompt suspension law"
which is generally applicable to a defendant who is
charged with DWI and who is alleged to have a BAC of
.08% or greater.
 §1193(2) (e) (1), is applicable to a defendant who is
charged with DWI, aggravated DWI, DWAI drugs, or
DWAI combine d influence and who either 1. has been
convicted of any violation of VTL §1192 within the
preceding five years, or 2. is charged with vehicular
assault or vehicular homicide in connection with the
current incident.
 §1194(2) (b) (3) is applicable to a defendant who is
charged with a violation of VTL §1192 and who is alleged
to have refused to submit to a chemical test.
©2015
Suspension Pending Prosecution:

25. 25
 A civil administrative proceeding separate and apart from
the underlying criminal action, but which runs parallel to.
The purpose of the hearing is to dispute the existence of
reasonable cause to believe that the defendant had a
BAC of greater than or equal to .08%. Pringle v. Wolfe,
88 N.Y.2d 426 (N.Y., 1996).
 Non-Hearsay Allegations of Fact are required, therefore
the BAC Report must meet the business record exception
to the hearsay rule. Must be an original (or certified copy)
and have a proper business records certification (even if
it is a legal fiction).
©2015
Pringle Hearing:

26. 26
 VTL §1193(2)(e)(7)(e) provides that if the court finds that
the suspension imposed pursuant to the "prompt
suspension law" will result in extreme hardship to the
defendant, the court may grant a hardship privilege.
 Hardship allows driving to and from work but does not
permit driving “for” work (such as from construction sit to
construction site).
 Attorney Affidavit with Client Certification will ordinarily
suffice in Onondaga County.
 Where a driver's license is suspended pending
prosecution the DMV may grant a conditional license, 30
days after such suspension takes effect.
©2015
Hardship Hearing:

27. 27
©2015
Questions?
Donald Kelly, Esq.
Tully Rinckey PLLC
507 Plum Street, Suite 103
Syracuse, New York 13204
518.640.1288 (direct)
dkelly@tullylegal.com