DWI and Civil Rights
A MOTORIST HAS A RIGHT NOT TO BE STOPPED WITHOUT REASON:
Under New York State Law, a police officer must have seen a motorist commit a traffic infraction or must be acting on information that a motorist has committed a traffic infraction or a crime in order to stop a vehicle. If a police officer cannot establish this; all evidence found as a result of this illegal stop, including any observations of the motorist, will be suppressed under the law. However, Officers have become quite adept at circumventing the Constitutional Protections afforded to all motorists by “inventing” an imaginary violation. Typically failure to maintain lane, failing to signal, as well as speeding are set forth as reasons to justify a stop. In fact, it was recently revealed that one of Nassau County’s former number one DWI cop, Joseph Lynch, was found by Internal Affairs Unit of the Nassau County Police Department to have improperly stop Motorists for no reason at all. This suspicion was confirmed when Officer Lynch stopped several Internal Affairs Officers improperly who were assigned to investigate him. Lynch recently retired after these details were revealed for the first time more than 5 years after these incidents occurred.
A MOTORIST HAS A RIGHT TO REFUSE ANSWER ANY QUESTIONS WHEN STOPPED BY A POLICE OFFICER
The U.S. Constitution, as laid out by the Fifth Amendment, as well as its New York State counterpart, and protects motorists from answering any questions which may incriminate them. When a motorist is pulled over by a police officer, the motorist is not required under the law to answer any questions. While the motorist will be required to produce their license, registration, and insurance card, they are not required to answer any other questions under both the Federal and State Constitution. After handling over the aforementioned documents, if the Police Officer begins to question a motorist, the motorist should indicate to the Police that they are refusing to answer any questions, and will not answer any questions without the an attorney being present . Moreover, they should state in addition to the above that they are invoking their constitutional rights to remain silent, and will not to answer any questions without first speaking to an attorney. A Police Officer following the law will then cease questioning. However, it has been my experience that despite this Constitutional mandate, Police Officers will disregard a motorist rights and continue to question the motorist in a coercive manner. The general rule is saying nothing, is better to saying anything. Do not deny drinking, nor admit to drinking. The better practice is to invoke your right to speak to an attorney, and refused to answer any questions until one is present. A person can rarely talk themselves out of a potential arrest, and any statement made by the motorist will inevitably be misinterpreted as admitted guilt, or taken out of context.
IF A POLICE OFFICER REQUESTS THAT I EXIT MY CAR AFTER A TRAFFIC STOP I MUST COMPLY
Under New York State Law, a police officer can request a driver to exit his vehicle if there is a valid traffic stop for a traffic infraction. The rationale put forth is that for safety of the Police Officer, they may request that a motorist, and even occupants under certain circumstances, be asked to exit the vehicle. However, many times Police Officers will request a person to exit so that they can separate them from potential civilian witnesses in the car, or that they intend to conduct Field Tests on the motorist outside.
A MOTORIST HAS THE RIGHT TO DECLINE TO PERFORM ANY SOBRIETY TESTS OUTSIDE THE CAR
A police officer cannot force a motorist to perform any tests outside of the vehicle. A person is not required to perform any Standard Field Sobriety Test outside of vehicle and cannot be penalized or fined for their failure to do so. Police Officers will rarely, if ever, tell a motorist that they can decline to submit to any tests. In fact, they try to create the impression that a person must submit to these tests, both at the scene and the station. This is not true. There is no legal requirement that a person submit to any of these physical tests at the scene. In fact, there is no benefit in submitting to these tests, which in my opinion, are highly inaccurate. Based upon studies that have been previously conducted, Officers incorrectly identified sober persons as being intoxicated when in fact they were not based upon the results of the tests. Given this high percentage of incorrect conclusions that persons were intoxicated when in fact they were not, there is no rational reason why a person should submit to these highly inaccurate tests. In fact, these tests are frequently given under circumstances that will cause a sober person to fail, thereby giving the Police Officer a reason to arrest the motorist.
A MOTORIST HAS A RIGHT NOT TO TAKE A BREATH TEST AT THE STOP
A police officer cannot force a person to take a breath test at the scene. In fact, if a person declines to take this test, there is no effect whatsoever on a person’s license. While a ticket can be written, it will not result in the lost of a motorist license. Given that these devises are highly inaccurate, and do not provide a print out, it is my opinion it would be unwise to submit to this test, as a false high reading will result inevitably in an arrest, when no arrest would have been made, and a Police Officer if inclined can state a person blew any reading they would like to justify an arrest.
A MOTORIST CAN REFUSE TO TAKE A BREATH TESTS AND ANY PERFORMANCE TEST AT THE POLICE STATION
Under New York State Law, a person has the right to refuse to submit to a chemical test back at the station and can be forced to do so against his will without a court first issuing a search warrant. While the Nassau County Police Department, among others Police Departments used to advise a motorist of this right, that is that they may refuse to submit to breath, urine or blood tests prior to being ask to submit to these tests, recently the Nassau County Police Department as well as other Police Departments no longer advise Motorists that they can decline this test, but merely ask the motorist whether they will consent to take the test. If the motorist refuses to submit to the test, they are advised of the potential consequences of failing to submit to these tests, which is the immediate suspension and possible revocation of their driver’s license should they lose at the Department of Motor Vehicles hearing.
A MOTORIST HAS A RIGHT TO SPEAK TO A LAWYER BEFORE SUBMITTING TO A BREATH TEST
The New York Court of Appeals in the case of People v. Gursey has held that a motorist has a qualified right to speak to a lawyer before submitting to a breath, urine or blood test. Failure to permit a motorist to attempt to contact an attorney, or failure to let a motorist consult with an attorney prior to him taking the test, will result in the suppression of a the results of a breath, urine, or blood test. However, the Nassau County Police Department, Suffolk Police Department, and New York State Troopers never inform the motorist of this valuable right, and in the past have ignored motorists’ attempts to contact a lawyer.
A MOTORIST HAS A RIGHT TO AN INDEPENDENT BLOOD TEST IN ADDITION TO THE TEST THE MOTORIST SUBMITS TO.
Under the Law, a motorist arrested in New York State has a right to an independent blood test in addition to the test that the motorist is being asked to submit to. However, the Nassau County Police Department has changed its policy and no longer even informs a motorist of this valuable right, and has adopted procedures which prevent someone from exercising this right even if requested. For example they will not transport a person to a hospital that is less than 2 minutes away to have a blood test taken, nor will they take an affirmative steps to help a motorist to get a test done. In fact, they won’t even tell doctors who are arrested about the right to draw their own blood.
A MOTORIST HAS A RIGHT TO A DMV REFUSAL HEARING SHOULD THEY DECLINE TO SUBMIT TO A BREATH, BLOOD OR URINE TEST:
Police Officers try to intimidate motorist into submitting to breath, urine, or blood tests by stating that if they do not submit to the test that their license will be immediately suspended and subsequently revoked. This statement is not entirely correct. In fact, what they fail to advise is that that the Police Department does not have the right to suspend nor revoke a motorist’s license for failure to submit to the aforementioned test. What they also fail to inform the motorist is that the motorist is entitled to a Hearing at the Department of Motor Vehicles to determine whether or not legal grounds exist for a revocation of the motorist’s license. Despite the prevailing belief all is lost; a motorist can win this hearing on many grounds with the aid of an experienced DWI Lawyer.