The Law Office of Rex M. Pietrobono

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The Law Office of Rex M. Pietrobono

I have been handling DWI cases in New York State since 1990. I have found in many DWI cases that the police are less inclined to ascertain whether a motorist is possibly intoxicated than they are to confirm their initial suspicions that a motorist is intoxicated. So, they view all interactions and observation through that corroborative lenses during their Driving While Intoxicated detection process.

This means the real purpose of pulling the motorist over was suspicion of DWI. That is not to say that the police are making anything up; it is just that they have the experience to spot a potentially impaired driver and sometimes make quick subjective judgments. And, subjective judgments can be wrong. They have the experience of being on the road six to eight hours a day and engaging in hundreds of thousands of encounters and hundreds of arrests, so they can get a good idea of whether or not a motorist has at least some alcohol involvement prior to operating a motor vehicle. It could even be that the motorist was driving too slowly or too carefully. They might have asleep in their car. The time of day is also a factor – most are early morning hours, but I have had plenty of DWI cases that have occurred in the daytime.

Many DWI arrests do occur after midnight – just like our parents told us: nothing good happens after midnight. Motorists are often pulled over sometime between 12:00 a.m. and 3:30 a.m. not far from their home. Sometimes people are even pulled over in their own driveways, but the officer will usually have observed the vehicle being operated on a highway or a public road leading to their driveway. The police officer will have observed something which caught their attention, typically a single or series of modest traffic infractions (e.g., crossing the double yellow line, not signaling, speeding, or even driving too slowly). But, not always – some police might be responding to a call or other reason to be there.

The motorist typically just intends to get home for the night, or perhaps they are dropping someone off first, and they look in their rearview mirror and they see the red flashing lights. Their heart sinks. They will hope it is not their vehicle being targeted for a pull over, but the law enforcement agency will make their intentions clear to them by getting right behind them and flashing the lights or shining the spotlight. A spotlight shining one’s side view mirror tends to be disorienting and dispiriting.

The whole situation is quite sobering and wrenching. In the first phase, one or two officers will walk up and tell the driver to roll down their window. The motorist will often roll it down just a few inches, in which case the officer will ask them to roll it down further, and then the conversation begins.

The point of the conversation ostensibly is to ascertain if someone has been drinking, but it may be primarily to corroborate their initial observations through personal contact. The first thing the officer does is to lean in. Their nose is typically inside the open window so they can observe or detect any odors of alcohol either emanating from the vehicle or from the mouth of the motorist. They put their face somewhat inside the window and they ask, “Do you know why I pulled you over?” They are usually much less interested in the answer than they are in clues by observing the motorist responses – what are their mannerisms, do they seem nervous, do they seem confused or disoriented. When the motorist answers, “no, I have no idea,” the officer will proceed to ask for license and registration and already have formed suspicion of alcohol impairment and now evidence gathering.

Now with all this going on, the motorist is expected to smoothly retrieve the paperwork out from the glove compartment. If there is a mishmash of documents in the glove compartment and they fumble around for their papers, that is taken as a sign of intoxication. Whether they know it or not the officer can already say that they have observed at least three signs of intoxication: the traffic infraction or infractions, such as failing to signal or speeding, the odor of alcohol emanating from the motorist’s breath, and often they will also say that the motorist’s eyes were red, watery and/or glassy, or that they had slurred speech. That’s all before the motorist even gets to hand them the paperwork as requested.

Realistically, most people would probably fumble around with the paperwork if they had to go into their glove compartment and pull out their registration. In addition, they may have a hard time reading the small print in the dark, trouble finding the right document, and it’s even harder with a spotlight moving around, and lights flashing about. In most cases, fumbling around trying to pull out the document in conjunction with everything else observed would be part of the probable cause evaluation.

Rex Pietrobono

Rex Pietrobono | Dedicated DWI Attorney in New York with 30 years of experience in legal defense, Rex Pietrobono provides clear and effective representation to help you navigate the complexities of DWI charges and move forward with your life.

Call Now For A Free Initial Case Evaluation - (914) 301-7500

At this point the officer will ask the motorist if they’ve been drinking. The motorist is then facing their internal conflict of what to say. By and large, most people want to cooperate. Most people are honest and they don’t want to be construed as liars. But they also do not want to put the noose around their own neck. So, the most common response is, “yeah, I had a couple of beers.” The police look at that solely as an admission of drinking. The quantity stated doesn’t really matter – all that matters is that you’ve admitted you had been drinking (on top of their observations).

At this next phase, they’re going to ask you to step out of the car and as you do so, they will generate another observation as to whether or not you swayed when you stood or leaned against the car. Following this pre-arrest screening toward an impending arrest. The next stage is really all about gathering evidence for their case based upon the subjective observations they have already made of intoxication.

The police officer is likely going to ask the motorist to submit to a preliminary breath test (PBT). Some motorists mistake this test for the chemical breath test performed later at the police station or barracks. In most courts the hand-held breath test is not admissible, but it is allowed as part of the probable cause for the arrest; meaning it detects the presence of alcohol but not sufficiently accurate for the quantity. In most courts the hand-held breath test device has not been held to be scientifically accurate enough to be admissible in the case against the motorist, although some of the courts in New York City do allow it to come in if a proper foundation has been established. For the most part, though, it can only be used to establish “probable cause” for an arrest for DWI. What is probable cause? Well, it’s supposed to be more than mere suspicion of some offense. It is a composition of facts and circumstances within the officer’s knowledge sufficiently to warrant a reasonable person to believe that an offense has been or is being committed, here for example, driving while intoxicated.

Typically, the PBT reads positive for alcohol, so now they have that and they will ask the motorist to perform some other tests known as the Standardized Field Sobriety Tests (SFSTs), which would be the walk and turn, the one leg stand, and the horizontal gaze test, which are utilized purportedly as “objective” testing by law enforcement to bolster their case of observing the accused who subjectively appeared intoxicated.

You see, any person is competent to testify in a court of law that a person appeared to them to be intoxicated. The court, as the finder of fact, will give the appropriate weight to that testimony. However, the defense can raise some issues with that conclusion. Perhaps they have a limp, or perhaps their voice always sounds like it’s a little bit slurred and the layperson certainly cannot say how much they drank or the difference between intoxicated and impaired. The officer does not know how much the motorist really drank, so can a lay witness meaningfully say the person was intoxicated? It’s a complex judgment to make based upon subjective observation alone. Thus, law enforcement and the prosecution rely upon what they consider an “objective” observation sequence of testing.

Now they’ve got all those observations of intoxication before you even stepped out of the car, they’ve got the PBT with a positive result for alcohol consumption, they’ve got the failed walk and turn, they’ve got the failed one leg stand, and lastly they’re going to have the “horizontal gaze nystagmus” (HGN) test. In this test they are asking you to follow the movement of a pen light with just your eyes, not moving your head along the trace at all. They are looking for the involuntary movement jerking of the eye, but if you exhibit the onset of nystagmus prior to 45 degrees or move your head along with the pen – that’s a fail.

The next two psychophysical tests, Walk and Turn (WAT) and One Leg Stand (OLS), require the subject to concentrate on both mental and physical tasks at the same time to evaluate the subject’s divided attention. Both the one leg-stand and the walk and turn require an amount of dexterity that many of us do not even have on a good day with no alcohol consumption. People have aches, pains, and bad backs, knees, hips, ankles, and so on – but the police still ask them to perform that test. I’ve seen cases where a person who had just been in an automobile accident was deemed to have failed the test even though they were still suffering from the effects of asthma and an airbag being deployed with powder and power right into their face and chest. Moreover, they may be uneven surfaces or gravel on the roadway, with vehicles passing by and lights flashing. It is disorienting and they’re basically doomed to fail the tests, but law enforcement trudges on and has them try to perform the test nonetheless and grades them as if there were no problem at all.

The WAT begins with the subject standing still, right foot in front of left foot, right heel touching left toe – listening to instructions and watching abbreviated demonstrations. In some instances, the officer may appear to be giving the subject a false cue to start the walk and turn, which will then be considered another sign of intoxication. They will ask, “Are you ready?” and an average reasonable person might take a first step in response to that question. If you do take a step, however, they’ll say, “I didn’t say start yet.” Now you already have one mark against you, but then you’ll be told to walk nine steps (usually along an invisible “line”) watching your steps, arms at your side, counting out loud, and then turn in a certain direction in a certain manner, and return nine steps to where you started. If you turn in your own style – that’s a fail. You are also expected to walk in a straight line, so if you step out of the imaginary line that is also a fail. In the one leg stand test you are supposed to stand with one knee bent slightly and the other leg extended. It doesn’t matter which leg, but you’re supposed to stand with your foot six inches or so off the ground pointed out, keeping your eyes on that elevated foot, and you’re supposed to stand like that counting out loud by 1000s for about 30 seconds. Your arms are supposed to be down by your side the entire time. If you step down before thirty seconds is up or if your arms flail for balance – that’s a fail as well.

While purported to be objective, these SFST tests still have subjective interpretation of what has been observed (and about a C+ average accuracy – only as good as the input), as far as law enforcement and the prosecution are concerned, the tests are validated. And so, at this phase, once the police believe they have gathered sufficient tangible evidence of probable cause for arrest based upon their observations of impairment (and supporting corroborative evidence to sustain a common law charge of driving while intoxicated later at trial), they will place the motorist under arrest, handcuff them behind their back, place them in the rear of the police vehicle and transport them to their headquarters where they will be asked if they are willing to submit to a chemical test. If a subject fails the SFSTs above, the chemical test will likely show some degree of alcohol involvement: DWAI (violation) generally 0.05% to 0.07% or DWI (misdemeanor (or a felony if convicted twice within 10 years)) 0.08% BAC and higher.

A chemical breath test or breathalyzer is usually administered via a DataMaster or Intoxilyzer device for estimating the blood alcohol content (BAC) from a breath sample of the operator of the motor vehicle. The breathalyzer does not directly measure blood alcohol content or concentration which requires the analysis of a chemical blood test sample (compulsory when a DWI is coupled with a motor vehicle accident (MVA) involving personal injuries). Essentially, the breathalyzer indirectly measures the amount of alcohol in one’s breath, thusly, estimating the suspect’s BAC to ascertain whether the subject is over the statutory legal limit.

The SFSTs and the chemical test are but two paths to the same destination, i.e., a DWI conviction. Although two DWI charges usually issue – only a single conviction may result (one or the other, either statutory or common law). A motorist in New York State arrested for DWI will likely receive at least three uniform traffic tickets – one for common law DWI (SFST and police observations of subject – VTL 1192(3)), another based upon the chemical breath test result (BAC of 0.08% or higher), and one or more of the traffic infractions justifying the initial “stop”.

Depending on the jurisdiction, a person’s BAC may be chemically measured by police using three methods: blood, breath, or urine (NYS Troopers do not utilize the urine test). For law enforcement purposes, breath is the preferred method since results are available almost instantaneously. The validity of the testing equipment/methods and mathematical relationships for the measurement of breath and blood alcohol have been criticized as improper administration and equipment calibration which is often the basis for defense challenges of the breathalyzer results. A defense expert witness may be required to challenge the BAC results if the matter were to proceed to trial.

For more information on Aftermath Of A DWI Stop In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 301-7500 today.

Rex Pietrobono

Rex Pietrobono | Dedicated DWI Attorney in New York with 30 years of experience in legal defense, Rex Pietrobono provides clear and effective representation to help you navigate the complexities of DWI charges and move forward with your life.

Call Now For A Free Initial Case Evaluation - (914) 301-7500