New York City DWI Lawyers
- DeLeon & Associates:
Search & Seizure Protections
The Fourth Amendment of the Constitution
protects an individual against unreasonable searches and seizure of his
or her person or property. A search may involve an inspection of the
person or his or her surroundings or property. Government authorities
may seize individuals by stopping them or otherwise restricting their
movements. Property is seized when the government takes control of it.
Usually, but not always, if a seizure of property is invalid, it is
because the seizure was preceded by an invalid search.
In the seizure of persons there has been
considerable litigation involving when the government (usually the
police) can restrict someone's movement. Police interactions with
individuals may range from an investigatory stop to a full-blown
arrest. The more freedom retained by the person when the police
interact with him or her, the lower the level of suspicion required for
the police to engage in that interaction. For example, if police merely
stop someone to ask questions, all that is usually required is that the
police have a reasonable suspicion that a crime has occurred or that
the person is in need of assistance. If there is no control and a
person is really free to leave, there is no seizure. However, in many
instances where the police stop a person, that person has a reasonable
perception that he or she is not free to leave. The first question may
then be whether there actually was a seizure.
If a person is subject to seizure, such as an
arrest, that seizure can be made pursuant to a warrant. A warrant is a
court order authorizing an arrest or search. Where there is a warrant,
the seizure is presumptively valid. The presumption of validity can
sometimes be overcome. For example, a warrant may be invalid if it was
obtained by false or misleading statements to the judge. If the police
do not have a warrant, the burden will be on the police to show that
the circumstances warranted the seizure. In most instances, the police
will have to demonstrate probable cause, that is, a reasonable belief
that a crime was or is going to be committed and that the person seized
was involved in the crime.
If an arrest or other seizure of the person
is invalid, then the person must be released. If the police obtained
evidence as a result of the invalid arrest, the government may be
prohibited from using that evidence at the person's trial. This is the exclusionary rule. This rule also applies to evidence that was obtained as the result of an invalid search.
A search does not take place unless the
investigation intrudes on a person's privacy. It seems clear there is
no search if the police find something lying on the sidewalk or hanging
out of someone's pocket. On the other extreme, if they look in a
bedroom drawer, it seems pretty clearly to be a search. The distinction
lies in the reasonable expectation of privacy. If someone has a reasonable expectation of privacy
in an area of his or her person or property, police investigation of
that area is a search. If there is no such expectation, or if the
expectation is not reasonable, no search has been conducted.
A search warrant must describe the area to be
searched and what the police are searching for. The search must be
reasonable in relation to the evidence sought. For example, if the
police claim to be searching for a car, they can look in a garage but
will not be able to look in a toolbox in the garage.
Searches can also be valid if they are done
with the consent of someone who has control of the property. This need
not be the owner. During an arrest, police can search the arrestee and
the immediate surroundings to search for weapons or evidence that might
be destroyed. Following similar reasoning, police may search without a
warrant where the search is necessary to protect against destruction or
removal of evidence. This is a commonly used exception to the warrant
requirement. Police may also conduct searches to protect the public
from imminent danger, such as the planting of a bomb, or to search for
fleeing criminals.
- Wilens & Baker:
The Consequences
This
year, over 2 million people will be arrested and charged with drinking
and driving. Many of these people will not challenge the accusations
against them and will just plead guilty to get it over with. What these
people dont understand is that a conviction for drinking and driving
can have severe long-lasting consequences that go above and beyond
loosing your license.
Did you know that a conviction for DWI
can have the following consequences?
- It can be the basis for a current employer to fire you and future
employers to refuse you employment.
- Your insurance carrier can label you a "high-risk driver" and significantly
raise your rates.
- Some countries use a DWI conviction as a basis to refuse you
and your family entry into their country.
- A second conviction for DWI could subject you to severe criminal
punishment, such as jail time.
These severe consequences are excellent reasons why people accused of DWI
should FIGHT their case and not merely accept the police and prosecutors
accusations. Unfortunately, criminal defense attorneys who do not specialize in
DWI do not understand the intricacies of DWI law and do not possess the skills,
experience, and resources to mount a successful defense.
Our
expertise in DWI law enables us to spot critical issues that can turn
what first appears to be a prosecutors "slam dunk case" into a weak
one. Our attorneys are proven "fighters," tough negotiators, known for
making critical motions, and winning cases at trial. Our attorneys are
skilled at analyzing the strengths and weaknesses of your case,
explaining the law and science of DWI, evaluating your chances at
trial, and providing you with all the necessary information to make
informed choices before proceeding to court.
The Penalties (According to NYS DMV)
DWAI (Driving While Ability Impaired)
Blood Alcohol Content more than .05% up to .07%
| |
nFine |
nJail Sentence |
nLicense Action |
|
n1st Offense
|
n$300 - $500 |
nUp to 15 Days |
n90 Day Suspension |
|
n2nd Offense
nWithin 5 Years
|
n$500 - $750 |
nUp to 30 Days |
nMinimum 6 Month
nRevocation* |
n3rd Offense
nWithin 10 Years |
n$750 - $1500 |
nUp to 180 Days |
nMinimum 6 Month
nRevocation* |
DWI (Driving While Intoxicated)
Blood Alcohol Content of .10% and over, or other evidence of intoxication
| |
nFine |
nJail Sentence |
nLicense Action |
| n1st Offense |
n$500 - $1000 |
nUp to 1 Year |
nMinimum 6 Month
nRevocation* |
|
n2nd Offense
nWithin 5 Years
|
n$1,000 - $10,000 |
nUp to 4 Years |
nMinimum 1 Year
nRevocation* |
|
n3rd Offense nWithin 10 Years
|
n$2,000- $10,000 |
nUp to 7 Years |
nMinimum 1 Year
nRevocation* |
ZERO TOLERANCE
Drivers Under 21 (DMV Administrative finding of .02 to .07 Blood Alcohol Content
| |
nCivil Penalty |
nLicense Action |
nAdded Fee |
| n1st Offense |
nMinimum $125 |
n6-Month
nSuspension |
n$100 Suspension
TTermination Fee
|
|
n2nd Offense
|
nMinimum $125 |
n1-Year Revocation,
nor until 21, whichever
nis longer |
n$100 Re-Aapplication
nFee |
* The NYS Department of Motor Vehicles decides when your license can be returned. Its return or
reinstatement, based on state law or regulation, is not automatic. You must reapply for your license
and may have to take a test.
Tips to Minimizing Your Risk of Being Convicted of DWI, Drunk Driving or Driving Under the Influence in New York
- When
questioned for DWI or drunk driving before arrest, you are not in
custody for purposes of Miranda warnings. If you politely refuse to
answer any of the cops questions concerning the DWI investigation,
either before or after arrest, then there wont be any statements that
can be used against you in court.
- Field
Sobriety Tests are completely voluntary. If you perform them, you may
be arrested anyway. It may be better not to give the Police evidence
that will be used against you in court. You can politely refuse to do
the field sobriety exercises.
- Contact a friend or relative from jail as soon as possible so they can hear you speak and note your state of sobriety.
- Always be polite and respectful to the police officers. How you are perceived by a jury is extremely critical.
- Some jurisdictions video the arrest, breath testing and/or booking process. Always be on your best behavior.
- Make a detailed list of all the events before being stopped up to and including being released from custody.
- Retain
an experienced DWI drunk driving defense attorney to represent you.
Only an experienced DWI defense attorney is able to spot your favorable
issues and present them to a prosecutor, judge or jury.
Remember, the best way to avoid a drunk driving conviction is to not drink and drive.
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