DWI Law- Cheap DWI Lawyer's Client Allowed to Vacate Jail Sentence and Plea

What happens when a client comes to you after he has already hired another lawyer, and has already pleaded guilty and been sentenced? Most attorneys will turn that person away, and for good reasons. However, there may be another avenue available. In People v. Rivera, --- N.Y.S.2d ----, 2012 WL 17681 (N.Y.A.D. 1 Dept.), 2012 N.Y. Slip Op. 00043, the defendant hired a second attorney to vacate the plea, and the trial court agreed. On appeal, the court affirmed, writing:

"The record supports the court's conclusion, made after a thorough evidentiary hearing, that defendant did not receive meaningful representation. “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404 [1995] ).

"Defense counsel failed to conduct any investigation, make any motions, or even view the video of defendant's breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument. There were lines of defense that were at least worthy of investigation, including matters that could have affected the accuracy of the breathalyzer results. The attorney's testimony established that there were no strategic reasons for these omissions.


"The hearing evidence also established that since defendant had no prior record and no accident occurred, it was extremely unlikely that defendant would receive a jail sentence. Accordingly, defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case."

The appeals court unanimously affirmed the motion to vacate the plea. 

Editor's note: This case should serve as a warning to cheap-priced 'dumptruck' lawyers that fail to perform an adequate investigation prior to disposing of a case, that such conduct might fall below the standards of practice in their community.

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DWI Law - New York Says Falure To Cross on Field Tests Not Ineffective

In People of the State of New York v. Biro, --- N.Y.S.2d ----, 2011 WL 2279160 (N.Y.A.D. 4 Dept.), 2011 N.Y. Slip Op. 04856 the defendant was convicted of DWI and he claimed that his lawyer was ineffective. The lawyer did not challenge the legality of the stop, probable cause for the arrest, nor did he cross-examine the arresting officers on the field tests or chemical tests. The appellate court rejected that proposition:

"Although defense counsel did not cross-examine the officers concerning administration of the field and chemical sobriety tests, defendant fails to identify a single error in those tests with respect to which defense counsel should have inquired. Moreover, the record establishes that defense counsel's strategy was to challenge the People's allegation that defendant was operating the vehicle in question, an element of the charges against him. In accordance with that strategy, defense counsel elicited testimony during cross-examination of the officers that the vehicle was stopped and the engine was off when they approached it, that the vehicle appeared to be disabled and that the vehicle may have been operated by defendant's father, who was sitting in the passenger seat thereof."

Very little in regards to the facts was recited in the opinion, other than the fact that the vehicle was parked partially in the traffic lane of a roadway, thereby creating a traffic hazard. Additionally, the record also purportedly established that the police had probable cause to arrest defendant based on, inter alia, the odor of alcohol and the open container of alcohol in the vehicle, defendant's admission that he had been drinking and his failure to pass field sobriety tests.

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DWI Appeal - New York Court Says PBT Admissible

In People of New York v. Jones, --- N.Y.S.2d ----, 2011 WL 2764207 (N.Y.City Crim.Ct.), 2011 N.Y. Slip Op. 21250, the prosecution filed a motion in limine to introduce the PBT result of 0.09 Brac into evidence at trial to establish guilt. The trial court allowed the result, and the defendant was convicted. On appeal, the defendant claimed that the PBT was inadmissible because: 1) portable devices had previously been disapproved by New York courts @) the FST was not shown to be reliable and 3) portable breath tests are only considered valid as screening devices and not as full chemical tests.

Rejecting all of the above, the appeals court held that the Alco FST was admissible because 1) it was on the NHTSA Conforming Products List and therefore all such devices were deemed 'approved' under New York's breath testing regulations; 2) device was on Conforming Products List of Evidential Breath Alcohol Measurement Devices, and was approved for both "Mobile" and "Nonmobile" use; 3) inclusion of device on Conforming Products List of Evidential Breath Alcohol Measurement Devices in itself establishes general acceptance of reliability and accuracy of its results and therefore dispenses with need to present foundational evidence thereof through expert testimony; 4) NHTSA has approved the Alcosensor FST for not just screening, but as an evidential breath testing device.

Of additional significance was that the court held that the fact that the officer who administered blood alcohol test may not have maintained continuous observation of defendant for 15 minutes prior to test did not render its results inadmissible, but went only to weight to be afforded the results.

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DWI Appeal - NJ Attorney's Own DWI Merits NY Sanction Too

In the case of In Re --- N.Y.S.2d ----, 2011 WL 1421808 (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 03004, an attorney licensed in both New Jersey and New York pleaded guilty to DWI and Leaving the Scene for an offense occurring in New Jersey. He entered a Pre–Trial Intervention Program. The New Jersey Supreme Court publicly admonished respondent for his criminal conduct On appeal, the New York court also imposed reciprocal discipline in the form of a public censure.


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DWI Appeal - New York DWI Defense of Justification approved

In People v. Rodriguez--- N.E.2d ----, 2011 WL 1044575 (N.Y.), 2011 N.Y. Slip Op. 02074 involved a highly unusual DWI and manslaughter case. the facts were as follows:

On August 1, 2005, one Francisco Rios double-parked his overloaded box truck, facing downhill, at 103-105 Mt. Eden Avenue in the Bronx. Rios placed the truck in reverse and turned the engine off, leaving the keys in the ignition before going into a store. Defendant, who was walking by, entered the truck. While defendant was inside, the truck descended Mt. Eden Avenue and struck several cars and three pedestrians, seriously injuring two and killing one. At trial, the People and defendant offered the jury markedly different stories as to how all of this occurred. Evidence established that defendant had a blood alcohol content of .09% nearly four hours after the incident which, according to an expert called by the People, meant that his blood alcohol content at the time of the incident was between .13% and .17%, substantially above the “legal limit” of .08%.

The State claimed that the defendant, knowing the driver from previous occasions, caused the truck to move as a joke (in order to move and hide the truck from the driver). Being drunk, they claim he lost control and had the accident. The State also claimed that the defendant exited the truck after the incident and asked, “How many people did I kill?” A witness, seeing three people laying in the road, responded, “You killed three people”, to which defendant replied, “Oh, I was joking around with the truck. I was making a joke and look what I've done.”

The defendant claimed that as he was walking past the truck, he “saw a movement of the truck.” He ran between parked cars to get to the truck which, by this time, was descending the hill and approaching an intersection. Defendant opened the passenger side door, jumped inside, slid over behind the steering wheel and pumped the brakes, to no avail. He tried steering, but the wheel was hard to move. Despite his best efforts, the truck struck several pedestrians crossing the street. He exited the truck on the passenger's side, and went to a nearby bodega. Defendant denied making any statement after the incident.

The trial court refused to give the defense a justification instruction, and the jury convicted the defendant of manslaughter. The justification defense, also known as the “choice-of-evils” defense, provides that conduct that would otherwise constitute an offense is justified when it:

“is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”

The highest appellate court in New York found that the failure to give the justification defense was not error as to the manslaughter charge:

"To be entitled to such a charge there must be two “evils”. And here, even under defendant's scenario, there was no “evil” on his part. According to defendant, he was not committing any offense when he jumped into a runaway vehicle to prevent it doing harm to others. So, as to the most serious charges, a justification charge (i.e. manslaughter) was clearly unwarranted."

As to the DWI charge, the court found that the failure to give the instruction was error, but that the error was harmless:

If defendant elected to operate a motor vehicle, here the truck, while under the influence of alcohol, in an attempt to prevent injury, he faced the choice of two evils: drive while intoxicated or risk a runaway truck causing injury. Therefore, Supreme Court should have granted defendant's request for a justification charge with respect to the operating a motor vehicle while intoxicated counts. However, any error was harmless as evidenced by the jury's conviction of defendant of the second degree manslaughter and assault counts. To find defendant guilty of those charges, the jury was required to conclude, beyond a reasonable doubt, that defendant caused the truck's movement, i.e., that it was not moving before he entered it. Because the jury concluded that it was defendant who caused the truck to move, and not, as defendant contended, that the truck was already moving, the jury never would have considered his “choice of evils” defense on the charge of driving while intoxicated. As a result, the error of not giving the justification charge with respect to the vehicular manslaughter and vehicular assault counts, which include as an element the operation of a motor vehicle while intoxicated, was harmless, and defendant is not entitled to a new trial to correct the error.

NOTE: What is troublesome about the harmless error analysis, is the fact that the court agreed that the jury should have been informed of the defense, but then reasoned that the findings of guilty where not affected by this failure,. The court 'guessed' that a logical jury must have found that the defendant caused the truck to move in the first place. The first problem is that the court of appeals is only guessing as to why the defendant was convicted, and no verdict (including the high court's decision) should be upheld when to do so is based upon guess or conjecture. Second, the failure to adequately instruct a jury about a defense to a charge is a constitutional error of fundamental fairness (i.e. due process), and as such prejudice against the defendant should have been presumed.


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