Your judgment, coordination and ability to drive a vehicle change when you consume any amount of alcohol. The level of impairment depends on five conditions:

1. the amount of alcohol you drink
2. the amount of food you eat before or while you drink alcohol
3. the length of time you drink alcohol
4. your body weight, and
5. your gender.

There is no quick method to become sober. The best method is to wait until your body absorbs the alcohol. The average rate that your body processes alcohol is approximately one drink per hour.

What are the alcohol and drug-related violations in New York State?

BAC = blood alcohol concentration

1. DWI: Driving While Intoxicated; .08 BAC or higher or other evidence of intoxication.
2. Aggravated DWI: Aggravated Driving While Intoxicated: .18 BAC or higher.
3. DWAI/Alcohol: Driving While Ability Impaired (by alcohol); .05 BAC to .07 BAC, or other evidence of impairment.
4. DWAI/Drug: Driving While Ability Impaired by a single Drug other than alcohol.
5. DWAI/Combination: Driving While Ability Impaired by a the Combined Influence or Drugs or Alcohol.
6. Chemical Test Refusal: A driver who refuses to take a chemical test (normally a test of breath, blood or urine) can receive a driver license revocation of at least one year (18 months for a commercial driver) and must pay a $500 civil penalty ($550 for a driver of commercial vehicles) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI-related charge or previous refusal will have their driver license revoked for at least 18 months (permanent for a commercial driver) and must pay a $750 civil penalty to apply for a new driver license. If the driver is under age 21, and refuses a chemical test during the five years after a DWI-related charge or previous refusal, they will have their driver license revoked for at least one year or until age 21, whichever is longer and must pay a $750 civil penalty to apply for a new driver license.
7. Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC violates the Zero Tolerance Law.

What are the penalties for Alcohol-related or Drug-related Violations?

Penalties for Alcohol-related and Drug-related Violations:

Violation (1) Mandatory Fine (2) Maximum Jail Term Mandatory Driver License Action (3) Aggravated Driving While Intoxicated (A-DWI) $1,000 – $2,500 1 year Revoked for at least one year

Second A-DWI in 10 years (E felony) (1) $1,000 – $5,000 4 years Revoked for at least 18-months (5)

Third A-DWI in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least 18-months (4,5)

Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug) $500 – $1,000 1 year DWI-Revoked for at least six months

DWAI-Drugs – Suspended for at least six months

Second DWI/DWAI-Drug violation in 10 years (E felony)(1) $1,000 – $5,000 4 years Revoked for at least one year

Third DWI/DWAI-Drug violation in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least one year (4)

Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination) $500 – $1,000 1 year Revoked for at least six months

Second DWAI/Combination in 10 years (E felony)(1) $1,000 – $5,000 4 years Revoked for at least one year/18 months (5)

Third DWAI/Combination in 10 years (D felony)(1) $2,000 – $10,000 7 years Revoked for at least one year/18 months (4,5)

Driving While Ability Impaired by Alcohol (DWAI) $300 – $500 15 days Suspended for 90 days

Second DWAI violation in 5 years $500 – $750 30 days Revoked for at least six months

Zero Tolerance Law $125 civil penalty and $100 fee to terminate suspension None Suspended for six months

Second Zero Tolerance Law $125 civil penalty and $100 re-application fee None Revoked for one year or until age 21

Chemical Test Refusal $500 civil penalty ($550 for commercial drivers) None Revoked for at least one year, 18 months for commercial drivers.

Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal $750 civil penalty None Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.

Chemical Test Refusal -
Zero Tolerance Law $300 civil penalty and $50 re-application fee None Revoked for at least one year.

Chemical Test Refusal -
Second or subsequent Zero Tolerance Law $750 civil penalty and $50 re-application fee None Revoked for at least one year.

Driving Under the Influence – (Out-of-State) N/A N/A Suspended for 6 months. If less than 21 years of age, revoked at least one year.

Driving Under the Influence – (Out-of State) with any previous alcohol-drug violation N/A N/A Suspended for 6 months. If less than 21 years of age, revoked at least one year or until age 21 (longest term).

1. Greater penalties can also apply for multiple alcohol or drug violations within a 10-year period.
2. Surcharges are added to misdemeanors ($160) and felonies ($270).
3. The driver license penalties for drivers under the age of 21, and for drivers of commercial motor vehicles and other professional drivers, are different.
4. Three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years.
5. A driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation.

Can I get a conditional license if I was convicted of DWI or DWAI?
If you receive your first conviction for DWI or DWAI and you participate in the Drinking Driver Program (DDP), you can receive a conditional license. The DMV determines if you are eligible for the DDP. A judge can stop your enrollment in the DDP. To get complete information read the DMV brochure, The Drinking Driver Program.

The law mandates participation in the DDP, even if the driver is not eligible for a conditional license, for convictions of specific alcohol or drug-related violations, or in specific plea-bargaining situations.

Christopher D. Galiardo
MYERS & GALIARDO LLP

 The threshold issue in any claim of false arrest, is whether the arresting officers had probable cause to arrest the Plaintiff.  That is, a person’s confinement is otherwise “privileged” when probable cause exists to arrest him. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999).  The defendant bears the burden of demonstrating that the arrest was justified based upon probable cause.  Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985).  To meet this burden, however, the defendant must demonstrate evidence which amounts to “more than a rumor, suspicion, or even a strong reason to suspect.”  United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) [emphasis added].  Moreover, the evidence of guilt must be particularized to the individual being arrested.  See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

 The fact that a client was arrested pursuant to the execution of a search warrant is not determinative on the issue of probable cause.  Barr v. County of Albany, 50 N.Y.2d 247, 255 (1980) (“while it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon”).  That is, a search warrant does not authorize an arrest.  Id.  In Barr, the police executed a search warrant of a premise and arrested virtually all fifty persons present for marijuana possession.  The charges were dismissed against plaintiffs and they brought  subsequent claims for false arrest.  The court denied defendant’s motions for summary judgment holding that the search warrant did not immunize the officers for liability for false arrest.  Id.

 In Ybarra v Illinois, 444 U.S. at 85, the police obtained a warrant to search a tavern where the bartender was suspected of drug activity.  While executing the warrant, the police conducted pat-down searches of the tavern patrons, including Ybarra.  The police found drugs on Ybarra and arrested him.  The Court held that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91; citing, Sibron v. New York, 392 U.S. 40, 62-63 (1968) [emphasis added]. 

 Likewise, in Flores v. City of Mount Vernon, the police officers executed a search warrant at a bar where the tavern owner was reportedly selling drugs.  41 F. Supp 439 (S.D.N.Y. 1999).  The police found certain patrons in possession of cocaine at the tavern.  One of these patrons was seen picking up a packet of what appeared to be cocaine from the bar.  The officers observed another patron dropping a packet of cocaine on the floor.  More cocaine and marijuana was found hidden in the basement of the establishment.  In addition to the patrons, the police arrested the bartender, Flores, who was present and working at the time the warrant was executed.  Ultimately, Ms. Flores was not charged and brought a claim of false arrest against the officers and municipality.  The Court found that the fact that half the patrons in the bar possessed cocaine did “not give rise to a reasonable suspicion that [Flores] was involved in drug activity, let alone rise to the level of probable cause”.  Id. at 443 [emphasis added].  Further, the fact that patrons dropped narcotics to the floor in plain view did “not admit the inference” that they obtained them from plaintiff. Id. at 444. 

 In Flores, the arrest occurred in a public forum.  What if your client was arrested in a private residence?  Assume your client was an invited guest watching television when the police executed a search warrant targeting the owner of the apartment.  The drugs found in the apartment were not in plain view and were not in proximity to your client.  Your client was not a resident of the apartment and there was nothing connecting him to the apartment.  Nor was there anything about his conduct which indicated a common scheme with the other occupants of the apartment. There is an argument to be made that the circumstances of Flores (cocaine literally flying in the air in the proximity of claimant) were far more egregious than those described above.      

 Pursuant to applicable New York search and seizure law, one may argue there was no probable cause for the police officers to arrest your client.  It is not alleged that your client directly possessed drugs.  The only remaining means to assert his “possession” are (i) the application of a “room presumption”; or (ii) the theory that he “constructively” possessed the drugs.  Since the alleged contraband was not in “plain view” the police were not permitted to arrest all the occupants based upon a permissive “room presumption”.  See, N.Y. Pen. L. 220.25(2) (the presence of a narcotic drug in “open view in a room other than a public place . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity” to the drugs) [emphasis added]; see, e.g., People v. Martinez, 83 N.Y.2d 26 (1993) (drugs concealed between a couch and a wall are not in plain view).  Furthermore, it can not reasonably be argued that your client “constructively possessed” the drugs hidden in the apartment.  To demonstrate constructive possession it must be shown that a person exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found.  See, e.g., People v. Manini, 79 N.Y.2d 561 (1992).  There is no evidence that your client resided in the location; had keys to the location; or had any personal property in the location.  Further, since the evidence will likely show that other persons had access to the location and the drugs were hidden, a viable theory of constructive possession will not stand.  People v. Vasquez, 160 A.D.2d 751 (2d Dept. 1990) (constructive possession not established where defendant was watching television in the living room of an apartment where 4 ounces of cocaine and $150,000 in cash were discovered in a bedroom pursuant to a search warrant, despite the defendant having a loose key to the apartment in her possession); People v. Webb, 179 A.D.2d 707 (2d Dept. 1992); People v. Bailey, 159 A.D.2d 1009 (4^th Dept. 1990). 

 Based upon the foregoing, one can certainly make a viable argument that the search warrant and discovery of contraband does not confer probable cause to arrest a visitor on the circumstances described.  Still, it may not be a winning argument and one will find far stronger footing in a False Arrest claim if the “unlawful” arrest took place in a public, rather than private, forum.

It is a clever predicate in that, unlike the allegation of mechanical issues such as a broken tail light, it is nearly impossible to disprove. Moreover, in light  of the current state of the law, once the police have a “valid” reason to pull a defendant over it doesn’t matter if that is the real reason they pulled him over.  That is,  the “pretextual stop” argument has been largely undermined in the wake of Whren v. United States, 517 US 806 (1996), holding in effect that the police officer’s true motive for the car stop is irrelevant so long as he had a valid reason for the stop. This reason may not need to be supported by probable cause in New York, where cases suggest “reasonable suspicion” is sufficient.  People v. Robinson, 97 NY2d 341 (2001).

So, if your client has been pulled over for “failure to signal” what are your tools to fight the constitutionality of the stop? First of all, chances are that he was never issued a ticket, which bears on the credibility of the police officers.  More importantly, and the part that the officers and the DA may fail to focus upon, is that the police must provide testimony which supports the actual statutory infraction.  VTL Section 1163 (turning movements and required signals) states in relevant part that no driver shall:  “turn a vehicle from a direct course or move left or right upon a roadway unless and until such movement can be made with reasonable safety.  No person shall turn any vehicle without giving the proper signal”.  In a recent case, People v. Rice, 810 NYS2d 306 (2006), the Court determined, based upon the above and upon a review of the legislative history, that while a turn may always require a signal, a lane change does not if it can be made safely.  “There was no desire [of the legislature] to add . . . a per se requirement of signaling lane changes as well”.  As such, the law does not “require signaling when a lane change can be made in complete safety without such a signal”.

What is the practical affect of this ruling? In most hearings the police officer will simply state that the defendant was observed making a lane change without signaling. The DA will ordinarily fail to elicit the nature of the roadway, the traffic conditions at the time and how, if at all, the purported lane change endangered other drivers.  IF this latter evidence is not proffered on direct testimony, it is the wise practitioner that does not address it on cross examination lest the officer “fill in the gaps”.  With no evidence that a unspecified “lane change” was made unsafely, any subsequent car stop violates the Fourth Amendment and the New York Constitution and any contraband recovered thereafter should be suppressed as fruit of the poisonous tree.

Two Arrested In Drugs And Guns Scheme

By Christopher Flaherty
Special to The Sun – March 22, 2007

City Law Enforcement Officials arrested two men charged with running a criminal network that used drug profits to purchase and sell guns on the streets on New York.

In the scheme, three suspects, Peguy Desir, 27, Joshua Pierre, 30, and a man yet to be apprehended who is knows as “Big Man” purchased drugs in the city and sold them for large profits in the South, the officials said. They would then purchase guns in Southern states and resell them for higher prices in New York, the Manhattan District Attorney, Robert Morganthau, said at a press conference yesterday.

Some of the guns were bought at pawnshops in Virginia, the police commissioner, Raymond Kelly, said.

Mr. Morgenthau said the suspects were arrested on Tuesday evening at 182 South St. after a sting operation conducted by a joint task force from the Manhattan district attorney’s office and the police department’s Firearm Investigation Unit.

During the investigation, which commenced in January 2006, officials confiscated 83 guns and large quantities of crack, heroin, and marijuana, Mr. Morgenthau said.

Using cell phones, the suspects would send the undercover officials digital pictures of the weapons. Many of the investigators said that it was the first time they had seen illegal gun vendors use digital photography.

“It was part of merchandising the weapons — a new high-tech phase of weapon sales,” the chief assistant district attorney for Manhattan, James Kindler, said.

The suspects sold the guns to the undercover operatives for about $840 each, the chief of the police department’s Organized Crime Control Bureau, Anthony Izzo, said. Illegal gun vendors resell out-of-state guns in the city for about two times the purchase price, Mr. Kelly said.

Elected officials in many of the Southern states find it difficult to restrict gun sales, Mr. Kelly said, because of pressure from the National Rifle Association.

It is believed that the guns confiscated by undercover officers represent only a fraction of the weapons sold by the suspects on the city’s streets, he said.

Source: The New York Sun – March 22,2007

Attorney for the defense: Matthew D. Myers

Lift Foxy’s Ear-Bling In Catfight

BY TONY SCLAFANI

Tuesday, September 14th 2004, 6:48AM

A $250,000 DIAMOND-encrusted earring was snatched from the lovely ear of rapper Foxy Brown when she was attacked inside a rest room at a swanky Manhattan club, cops said.

The raunchy R&B star was knocked around at Show Nightclub in Times Square early Sunday after an argument with a woman cops identified as Tanya Manderson got physical, police sources told the Daily News.

She slugged the 25-year-old Brooklyn-bred diva in the right ear about 12:45 a.m., then yanked off the gaudy earring, the sources said.

Manderson allegedly took the earring and Brown’s purse and ran out of the W. 41st St. club with security guards close behind, the sources said.

She disappeared into a subway station at 42nd St. and Sixth Ave. before hurling the purse onto the tracks and giving the guards the slip. The purse was recovered, but not the earring.

Someone at the club knew Manderson, and cops hauled her into the Midtown South Precinct about 4:30 p.m.

Manderson, 35, of Fort Greene, was charged with robbery, grand larceny and criminal possession of stolen property.

MSG Result: Tanya Manderson’s case dismissed by the grand jury.

Attorney for the defense: Matthew D. Myers