DISCOVERY IN A CRIMINAL CASE
Discovery is a legal term that means that the government is bound to show you part of its evidence against you. Criminal Procedure Law section 240.20 governs discovery in a criminal matter and dictates what the government is required to hand over. This is a very important provision in the law because unless there are extenuating reasons, clients should generally refrain from entering pleas until discovery is completed. The logic behind that is that discovery, in theory, allows clients to make informed decisions. It gives clients and their attorneys the opportunity to review the evidence before a trial. If the evidence is particularly strong, a client may want to consider some sort of a plea. If the evidence is weak, the attorney should be demanding either an outright dismissal or at a minimum, a very favorable deal for the client. And if the evidence is strong, discovery will allow a client and attorney to strategize around the evidence. Even strong evidence can often be explained so that its impact at trial is lessened. For instance, if the government has a videotaped confession, that evidence would appear to be strong. However, if the client insists that he was coerced, there may be things in the video such as signs of physical injury that can be pointed out to the jury to argue that the confession is unreliable since the police obtained it after physically assaulting the client. Discovery allows a client and attorney the opportunity to view evidence before trial. That is why is it so critical for an attorney to view the discovery, determine whether any discovery is missing and to make the appropriate motions if discovery is not timely turned over to the defense. All of this should be done before a plea is taken.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
WHAT ARE PRETRIAL SUPPRESSION HEARINGS
After an arraignment, a case is generally adjourned to another court date before another judge for a conference. The case is sent to another courtroom typically referred to as a part. You may hear the clerk of the court tell you that you’re case is being sent to criminal part 1. That’s the courtroom you will be appearing in for the remainder of the case unless otherwise told. The conferences are where your attorney is able to speak with the District Attorney’s and the Judge to determine if a plea deal can be reached. A plea deal is where you would enter a plea of guilt to one or more charges in exchange for a particular punishment. The plea process can break down for a myriad of reasons: (a) the District Attorney’s office does not offer you a plea to something you can live with or (b) the Judge’s punishment is not favorable to you. What do you do when plea bargaining breaks down? Is trial your only recourse that remains?
Before you proceed to trial, you may have what are known as pretrial suppression hearings. There are many different types of hearings but the most common hearings are:
HUNTLEY HEARING
A Huntley hearing is a pretrial suppression hearing to determine whether your incriminating statements were (a) voluntarily made; (b) whether they were elicited in violation of your Miranda rights; (c) whether Miranda was adequately recited to you; (d) whether the statements were made in violation of your right to counsel; (e) taken while you were detained without probable cause to arrest or (f) taken without a knowing, voluntary or intelligent waiver of your rights prior to questioning.
If your statements were made or taken in violation of your constitutional rights, those statements may be suppressed. While this alone may not mean that the government’s case is over, suppression of evidence may weaken the government’s case to such an extent that it may induce the government to give you a better deal.
MAPP HEARING
A Mapp hearing is a pretrial suppression that seeks to suppress evidence that is tainted by a bad search and/or seizure. Before law enforcement can seize physical evidence, there must be a legal right to search or seize that evidence. For instance, you’re driving your vehicle and the police pull you over for a broken taillight. Suddenly, the officer goes to the back of your car and opens your trunk where he finds something illegal. What the officer did was illegal. Before an officer can search, he must first have probable cause to search. If he has probable cause, he must secure a search warrant unless there is one of several exceptions present. If one of those exceptions is not present, the officer may not search, he may not seize and moreover, he may not arrest you. But assuming he does one or all of those things, a Mapp hearing is where the officer testifies and is cross-examined and if it is determined that he violated your rights, the incriminating physical evidence must be suppressed.
DUNAWAY HEARING
A Dunaway hearing is a pretrial suppression hearing that seeks to suppress evidence that is tainted due to a lack of probable cause to search and/or arrest. Like a Huntley/Mapp hearing, if there is a constitutional infirmity, you are entitled to have evidence thrown out which may weaken the government’s case or completely destroy it.
WADE HEARING
A Wade hearing is a pretrial suppression hearing that seeks to suppress evidence that is tainted due to a suggested identification. In other words, a witness identifies you as the perpetrator of a crime. But in arranging the identification or during the identification, the police suggest to the witness somehow that you are the perpetrator of the crime; this identification procedure is illegal and may result in a suppression at trial of your identity from that witness. There is something called bifurcation that may still allow the government’s witness to identify you at trial but that will be the subject of a different article.
In short, if plea bargaining breaks down, you don’t have to go to trial right away. You may still be entitled to pretrial suppression hearings. However, you should be certain, when selecting an attorney, to hire someone who is well versed in these hearings as many attorneys are not.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
vigliottilaw.com
DWI/DUI Defending Drivers Throughout New York State A conviction for drunk driving has the potential to do much more damage to your life beyond just the criminal penalties. Learn More About How We Can Help Criminal Defense If you have been arrested or are under criminal investigation, put your trust...HOW CAN I HELP YOU BEAT YOUR TICKET
First, I can read the ticket and determine if the ticket meets all of the legal requirements necessary to make out the charge. If it doesn’t, I am able to make legal arguments to request a dismissal. Second, you may be entitled to additional information within a certain amount of time and if that information is not provided, you may be entitled to an outright dismissal of your charge. An experienced lawyer understands the laws surrounding tickets and the arguments that may lead to a dismissal. Third, if a dismissal is not forthcoming, I am able to negotiate the best deal possible utilizing my knowledge of the law and my prior experience as a traffic court prosecutor. Lastly, I’ve tried scores and scores of traffic cases and if a trial is the last option, I am skilled in cross-examining police witnesses and in beating all types of vehicle and traffic law charges.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
HOW CAN I HELP YOU BEAT YOUR TICKET
First, I can read the ticket and determine if the ticket meets all of the legal requirements necessary to make out the charge. If it doesn’t, I am able to make legal arguments to request a dismissal. Second, you may be entitled to additional information within a certain amount of time and if that information is not provided, you may be entitled to an outright dismissal of your charge. An experienced lawyer understands the laws surrounding tickets and the arguments that may lead to a dismissal. Third, if a dismissal is not forthcoming, I am able to negotiate the best deal possible utilizing my knowledge of the law and my prior experience as a traffic court prosecutor. Lastly, I’ve tried scores and scores of traffic cases and if a trial is the last option, I am skilled in cross-examining police witnesses and in beating all types of vehicle and traffic law charges.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
THE IMPORTANCE OF DISCOVERY IN A CRIMINAL CASE
You’re charged with a DWI or a DUI or any criminal matter and you do some internet research. You read a bunch of information from people that were previously charged
with DWIs or attorneys giving advice about DWIs/DUIs/Criminal Cases. You start to conclude that maybe your legal matter is cookie cutter and that there’s not much to it. You assume that the case will be resolved a certain way because of all that you’ve read and heard. Does this sound familiar? It is a very familiar scenario. The problem with this scenario is that there is no one size fits all scenario when I comes to DWI/DUI/Criminal Cases. When you’re charged with a DWI/DUI or Criminal case, it’s
true that each District Attorney’s Office has guidelines that will typically dictate how they wish to resolve a case. But what you need to know and where an experienced
attorney makes all the difference, is that a good lawyer, as opposed to a warm body, earns his/her money after discovery is served.
Discovery is just a fancy word that means that the prosecutor is required to show your attorney some of their evidence before trial. There are certain things that aren’t discoverable immediately and some things that are. Once an attorney receives discovery, he is or she is in a much better position to give you a sense of where your case may end up. This is why I cringe every time an attorney promises a client a certain result at the start of a case. There are certainly times when one can predict the outcome of a case. But if you’re really doing your job as a lawyer, you want to see the government’s evidence before you start predicting an outcome. What if over time, the evidence reveals that your client has a great defense and that he/she shouldn’t take the cookie cutter deal that’s offered to everyone? A diligent attorney wants to know that to give the best possible result to the client. Once the discovery is reviewed, then an attorney can discuss pretrial hearings, trial and other things that may get the client the best result available.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
CROSS EXAMINATION OF A POLICE OFFICER
Cross-examination is a learned skill and art. It is not something that is intuitive. If you don’t know how to properly question a witness, the results can be disastrous at trial. It’s difficult enough to cross-examine a civilian witness and much harder to effectively examine a police witness. Police witnesses are typically harder to cross-examine because they have much more experience than the average witness and therefore have developed an expertise in responding to questions.
Cross-examination is not just about knowing how to ask a question. It’s also about knowing what to ask, what not to ask, when in the order of questioning to ask, whether the question is legally permissible and most importantly, WHY the question is being asked. You need to know WHY you are asking a question. That is very important. You should also be aware that most witnesses will never admit that they are lying or that they’ve made a mistake. While that may happen all the time on television, real life is much different. It’s very possible to show that a witness is mistaken or lying but it must be done in a much more subtle manner. As I’ve said above, this is where a skilled cross-examiner is worth his weight in gold.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
PRACTICAL TIPS AFTER YOU RECEIVE A TRAFFIC TICKET
A police officer pulls you over and issues you one or more traffic tickets. You may or may not agree with the alleged violations or feel that the number of tickets that were issued is unfair. After doing some google searching, it occurs to you that these tickets involve points. And suddenly, you’re gripped with fear that you may lose your license because of the amount of points you already have and/or you start imagining what a conviction to these tickets can do to your auto insurance rates.
You’re not alone. Many people feel this way. You have a decision to make. You can either go to court and represent yourself or you can hire an experienced traffic attorney to help you navigate the what can often be the treacherous waters of the court system. Choose wisely because traffic tickets can often have far reaching affects on your license and/or insurance. You need to be aware that while traffic courts cater to motorists that appear without an attorney, there are landmines that the unrepresented motorist needs to consider. Many offenses have points. If you accumulate a certain number of points within 18 months, you may lose your license. If you lose your license, there is no guarantee that the DMV will issue you a restricted license. You may have an increase in insurance premiums as a result of poorly handled tickets. Also, there is something called a 25 year look back law that could potentially result in a permanent loss of license. There may be legal arguments that are available that can result in one or more of your tickets being dismissed or reduced. In the event that a mutually agreeable resolution can’t be reached, a trial may be necessary. As most people know, trials involve testimony from police officers. Proper cross-examination is a skill that is developed over time. It’s difficult enough for attorneys to develop adequate cross-examination skills and almost impossible for a motorist to know what questions to ask and what questions not to ask of a police officer when they lack legal training. If you receive a ticket, you should carefully consider whether it’s advisable to handle the ticket(s) on your own or hire an experienced traffic lawyer.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
As long as Cuomo is in office the draconian regulation called Part 136b will stay in effect
A FEW TIPS ON SELECTING AN ATTORNEY
You’re charged with a DWI and you are overwhelmed with solicitations from attorneys who want to assist you. You do a google search only to be even more bombarded with ads. I recognize how overwhelming and disconcerting that can feel. Remember that not every attorney is skilled at DWI defense. I don’t say this to disparage anyone but when you pay good money for representation, you hope that the person representing you knows what he or she is doing. Here is some advice when picking an attorney: (1) search for online reviews; (2) ask the attorney questions about their experience handling DWI, DUI or traffic matters; (3) ask what kind of service you can expect for the money you’re paying; (4) please be wary of an attorney that gives you an expected outcome immediately. This is super important. I recognize that you’re scared and anxious for an answer. But if an attorney is being honest, they must concede that at the beginning of a case, it is disingenuous to start assuming what will happen in your case. It’s like going to the doctor with what may be a broken leg and before the doctor looks at the x-ray to see if there’s a fracture, he or she says, “don’t worry, just take this medicine and the injury will be healed.” In other words, it takes time to properly diagnose the result of a criminal case. Many attorneys simply want your money and they’re willing to be dishonest to get it. Realize that it matters who the Assistant DA is prosecuting your case; so does the judge you’re in front of and the County your case is in…these factors all matter. (5) please be wary of the attorney that is well below everyone else in terms of price. Remember that while price certainly matters to most people, it should be secondary to an attorney’s performance. The cheapest attorney isn’t necessarily the best one and neither is the most expensive. But remember the old adage….you get what you pay for…
The most important qualities that you should look for in an attorney are (a) skill level; (b) experience handling your type of case; (c) honesty (even if it means telling you what other attorneys won’t); (d) integrity; (e) someone who is reasonably priced; (f) someone who is responsive to you and your case and (g) someone who is skilled at litigation.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
HOW CAN I FIGHT YOUR TRAFFIC TICKET?
First, I have experience both as a State prosecutor as well as experience as a local traffic prosecutor. I have represented the government in serious felony matters and I have represented local jurisdictions in a multitude of traffic matters. As a defense attorney, I have represented scores of clients in criminal traffic matters such as DWI, DUI, Aggravated Unlicensed Operation of a Motor Vehicle, Driving with a suspended or revoked registration, etc, as well as having represented clients in a wide array of traffic violations. I understand what the government relies on when preparing its case against you. I now bring my experience as a former prosecutor to the table in order to defend motorists just you like. Second, I am very accessible to my clients. I believe that if you give a good service, clients will not only be happy, they will also be repeat clients and they will send their family and friends to you. Nothing is a greater affirmation of success and accomplishment then receiving a phone call from a new client who tells me that he/she was given my number by a family member or friend. Third, I know what its like to be on the receiving end of a ticket. It can be overwhelming. Also, there are lots of attorneys out there who lack experience and either take your money and can’t get you the result you desire or they over promise and under deliver. I believe in being honest and upfront with clients even if it means that they hire another lawyer. Fourth, there are things about the law that non-lawyers just do not know. Google is not a substitute for a law degree and years of experience. The internet can be a very good place to start for legal advice but in the end, you need to realize that the internet is full of bad information. Lastly, if a traffic ticket or criminal matter is not properly handled, it can wreak havoc on your life. Not only will your insurance likely go up, but you may experience an interruption of your license, fees, surcharges and administrative fees. Moreover, while you may not plan to receive any more tickets, you may actually get more. As a former prosecutor, I can tell you that when a prosecuting attorney looks at your record, it will most likely be used against you to treat you more harshly. So while taking care of a legal matter without an attorney may seem attractive at the outset, it may prove to have long lasting negative effects.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
WHY YOU MAY WANT TO HIRE AN ATTORNEY FOR YOUR TRAFFIC TICKET.
Traffic tickets can have far reaching affects on a person's life. What most motorists don't realize is that if a ticket is not handled properly, it could come back to haunt you in the future. In my experience, most people have a very overly simplistic view and under appreciation of how serious traffic tickets can be. It's true that some situations may be swiftly handled by a motorist without the need for a lawyer. But when you decide to act on your own behalf, you're struck with the unforeseen consequences. And as one may imagine, undoing damage at that point may be very unlikely. Some things that can go wrong are: (a) an accumulation of points may lead to an interruption of one's license/privilege to drive; (b) the disposition of future tickets may be impacted by the improper handling of current tickets; (c) insurance premiums may be adversely affected; (d) in conjunction with the 25 year look back law, today's tickets may cause a permanent loss of license and (e) there may be other unforeseen consequences such as fines, surcharges and administrative fees. Many of these consequences can be avoided or at least should not come as a shock to the motorist who has adequate and capable counsel. But like most things in life, let the buyer (or in this case, the motorist) beware. What you don't know could hurt you.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
lawyers.justia.com/lawyer/luigi-vigliotti-1277222
lawyers.justia.com
Riverhead, New York attorney Luigi Vigliotti. Legal practice includes criminal law, DUI & DWI and traffic tickets. Research legal experience, education, social media, professional associations, jurisdictions and contact information on Justia.THE BASICS OF WHAT THE GRAND JURY IS AND HOW IT OPERATES
The Grand Jury in New York is regulated by Article 190 of the Criminal Procedure Law (“CPL”). The Grand Jury is comprised of 23 jurors that listen to evidence and decide whether to indict. The Grand Jury also has investigative powers. The members of the Grand Jury can subpoena witnesses and evidence and has broad power in that regard.
When someone is charged with a felony, quite often, the prosecution starts by way of a charging document known as a felony complaint. A felony complaint is enough to arrest someone but if later, a felony conviction is anticipated, a felony complaint must be replaced by either an indictment or a superior court information.
For one or more reasons, a state prosecutor may decide to present a case before the Grand Jury. The purpose of this presentment is to allow the Grand Jurors to hear and view evidence and ultimately decide whether there is reasonable cause to believe that the target (aka defendant) has committed a felony. As a side note, Grand Jurors can also vote to indict on misdemeanors. 23 jurors comprise the body of the Grand Jury. However, in order to act, there must be a minimum of 16 Grand Jurors present. This is known as a quorum. If there is no quorum on a particular day, the Grand Jury cannot hear evidence and cannot vote on whether evidence is sufficient for indictment.
If there is a quorum present, in order to indict, there must be a minimum of 12 votes to indict. In other words, whether there are 16 to 23 Grand Jurors present, the only way for the prosecution to secure an indictment is for a majority of Jurors to vote to indict. Thus, the minimum amount of jurors required to indict is 12 Grand Jurors. The Grand Jury my hear witness testimony and see documentary or physical evidence. Once all of the evidence is presented, the Grand Jury may vote to indict (i.e., vote for a True Bill) or may vote not to indict on one or all of the charges. In some instances, the Grand Jury may vote to indict on lesser charges such as misdemeanors or may instruct the local District Attorney to file a prosecutor’s information which means that the original felony charge is being reduced to a misdemeanor.
A target of a Grand Jury presentment (unless it’s a direct presentment) may testify before the Grand Jury on his/her own behalf. As a safety measure, an attorney should always, pursuant to Criminal Procedure Law section 190.50(5), notify the District Attorney’s office prosecuting the case in writing of the defendant’s wish to testify before the Grand Jury votes on whether or not to indict. In NYS, a target may testify before the Grand Jury provided that he/she timely notifies the prosecution. Moreover, a target MUST execute a waiver of immunity or he/she will not be allowed to testify. The waiver of immunity will be covered in a separate legal guide but suffice it to say that a waiver means that the defendant/target is giving up his/her right to remain silent and to be free from self-incrimination. Before a witness testifies before the Grand Jury, he/she should consult a lawyer and discuss the tactical advantages and/or disadvantages of testifying.
Once the Grand Jury has heard all of the evidence presented, a determination will be made. The Grand Jury may vote to dismiss all or some of the charges or they may vote to indict on some or all of the charges. If the charges are dismissed, with some exceptions, the matter is over. However, if there is an indictment, the prosecution will generally take a more serious posture at that point. Once an indictment occurs, the defendant will be brought before a Judge, an arraignment will be done and technically, while not always the case, the prosecution can argue for an enhancement of bail status since the case has now gotten more serious post-indictment. Also at the arraignment, the prosecution will usually announce readiness for trial.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
WHY YOU SHOULD NEVER TAKE LEGAL ADVICE FROM POLICE OR THE INTERNET
Has a cop ever told you that your legal situation wasn't serious & that it would end a certain way? Or worse, the officer told you that you didn't need an attorney? Have you ever searched google for legal advice only to find that you were given incorrect information? If so, read this guide.
THE OFFICER LIED TO ME WHEN HE SAID MY CASE WOULD END A CERTAIN WAY OR THAT I DIDN'T NEED A LAWYER
Sadly, I hear from clients all too often that police lied to them about their case. The question isn't whether police can lie (they can and often do), but why they lie. I believe that cops lie to arrested people for several reasons. Specifically, the officer tells you that the case isn't serious so that he/she can calm you down. In calming you down and convincing you that your case isn't serious, the officer can often get you to talk freely and openly about your case. Remember that cops are NOT your friend when you're in this situation. You may know lots of cops and respect them but when you're under arrest or being investigated, they are there to BUILD A CASE AGAINST YOU. Do NOT ever forget that. Once you begin to speak freely, even if you think you're innocent, the officer is building a case against you. Officers will say things like, "I'll talk to the DA for you," or "I'll make sure you get DIVERSION," or "I'll tell the DA to not ask for bail," or "I'll get you out of here tonight with a desk appearance ticket ("DAT") if you cooperate." These tactics are all designed to trick you into speaking without the benefit of a lawyer. One of the most reprehensible things that a cop can tell a suspect is that they don't need a lawyer. If this were true, then why do they still arrest the person? The reason why cops tell a suspect that he/she doesn't need a lawyer is because once you demand to speak with a lawyer (any lawyer), the cop has to stop questioning you until a lawyer arrives. The officers obviously want to build their case without a lawyer blocking them. The officer tells you that you don't need a lawyer for the same reason he/she tells you that your case isn't serious. The cops want you to put your guard down and speak so that the police can build a case against you. If you don't really need a lawyer, the case must not be serious, right? Well, that's what they get you to think so that you will cooperate and help them build a case against you. Do yourselves a favor and always demand to speak to an attorney. It can be the difference between no criminal conviction and a criminal conviction.
I READ SOMETHING ON THE INTERNET ABOUT THE LAW THAT TURNED OUT TO BE INACCURATE
I cringe every time a client tells me he/she read something on the internet. It's not that I don't want clients to be knowledgeable, it's that the internet, while a good place to start for legal information, is usually wrong or it leaves out important information. First, the person writing the advice is usually not an attorney. Remember that attorneys are people who study the law, take exams to demonstrate competency and then spend their entire careers immersed in the law and in taking never ending refresher courses. Therefore, when you stack that beside some anonymous person on the internet, it should be clear who should get your confidence. Second, even if the person writing the advice is an attorney, remember that there are plenty of attorneys who do not possess competency in the area in which they're giving advice. I often have to fix mistakes that other attorneys who claimed to be skilled in an area of law have made. Lastly, even if the advice is accurate, you should realize that there is no one size fits all category under the law. Every case is different and quite often, the outcome of a case depends upon several factors including (1) the background of the client; (2) the county in which the case is pending (this can make a huge difference), (3) the Judge before whom the matter is pending and (4) the Assistant DA who is handling the case. Also, many clients become informants and some victims choose not to cooperate in the prosecution of a case. When the defendant is cooperating or the victim is not cooperating, this can be a huge factor in resolving a case to one's benefit. The lesson is that while the internet is a good place to start for legal advice, one should ultimately seek advice from a qualified attorney.
To learn more about your rights when confronted by police, you should speak to a qualified attorney who focuses in criminal law. I can` be reached at the Law Offices of Luigi Vigliotti, P.C., at (516) 385-2940 or by email at www.vigliottilaw.com.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
THE ELEMENTS OF A DWI CASE---WHAT THE GOVERNMENT HAS TO PROVE
A driving while intoxicated charge is usually brought under Vehicle and Traffic Law (“VTL”) section 1192.2 or 1192.3, though there are other DWI sections as well. Of course, there are DUI charges such as VTL section 1192.4, which charges driving under the influence of drugs. And there are other charges that can be lodged combining driving under the influence of drugs and alcohol. Generally speaking, we will be dealing with DWI charges though DUI charges have many of the same elements.
Elements are facts that the prosecution must establish. If one of those facts cannot be adequately established by competent evidence, that may not only weaken the prosecution’s case, it may require a dismissal or may result in a loss for the prosecution after trial. The elements of 1192.2, DWI Per Se, are that the defendant motorist on a certain date, in Nassau County (or Suffolk County or whichever county the incident occurred), operated a motor vehicle and that the defendant did so while he/she had .08 of one per centum or more by weight of alcohol in his/her blood as shown by chemical analysis of such person’s blood, breath, urine or saliva. Also, the roadway upon which the defendant motorist was operating the vehicle must be a public roadway. Each of these elements must be proven beyond a reasonable doubt in order to find defendant guilty of VTL 1192.2. If any one of these elements is missing or cannot be established by competent evidence beyond a reasonable doubt, the defendant MUST be found not guilty. If a person is found guilty notwithstanding the lack of evidence, a motion to set aside ther verdict as being against the weight of the evidence should be made.
The elements of common law DWI, VTL 1192.3, are that the defendant motorist on a certain date, in Nassau County (or Suffolk County or whichever county the incident occurred), operated a motor vehicle and that the defendant did so while in an intoxicated condition. As you can see, VTL 1192.3 differs from 1192.2 in that there is no proof of blood alcohol content required to prove the charge. Instead, prosecutors will attempt to prove intoxication by (1) consciousness of guilt. They will argue that the reason a motorist refused to take a chemical test is because he/she knew that the results would reveal evidence of guilt. A jury will be asked to consider that consciousness of guilt in rendering its verdict. And (2) the prosecutor will rely on an officer’s observations of the motorist such as physical clues of intoxication: results of field sobriety tests (SFSTs), whether the motorist had bloodshot eyes, an odor of alcohol emanating from his/her breath, their balance and/or slurred speech. And of course, if there was an accident or erratic driving, that evidence will be presented as well. As with the 1192.2 charge, a charge of 1192.3 must be proven as to each of its elements beyond a reasonable doubt in order for a jury to convict. If any of the elements are not proven, a jury should acquit by returning a verdict of not guilty.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
MY CORPORATION RECEIVED A TRUCKING/TRAFFIC TICKET. WHAT DO I DO? THE BASICS OF DOT VIOLATIONS.
This guide will educate you on some of the basics of trucking tickets or what are known as DOT violations.
BASICS OF DOT VIOLATIONS
DOT violations can be written to either a corporation or an individual driver. When tickets are issued to a corporation, under Criminal Procedure Law 600.20, the corporate defendant MUST appear by counsel. In other words, your company receives a trucking ticket and you appear in court without an attorney. The court will inform you that you MUST hire an attorney to defend the company. On the other hand, if the tickets are written in the name of the individual driver, the driver may appear without an attorney. But let's be clear, the driver MUST appear in court since he/she is being personally prosecuted. There are ways around having your driver show up. You can hire an attorney and have the attorney prepare an affidavit of corporate substitution. An affidavit of corporate substitution is a legal document wherein the owner of the truck that the ticketed driver was driving at the time the tickets were issued asks the court to substitute as the defendant, the corporation instead of the driver. Presumably, the driver works for the corporation and the boss decides that he/she would prefer that the company be charged instead of the driver. There are many reasons why this is preferable to owners of companies. The most common reason is that a company doesn't possess a driver's license. However, the individual employee/driver does and owners of companies understandably want to keep the licenses of their drivers as clean as possible. In this scenario, an attorney can appear and ask the Court to substitute the corporation for the driver. The one caveat that I offer is that technically, the driver must appear because theoretically, a court may refuse the application for a corporate substitution. Thus, the better practice is for the driver to whom the tickets were issued to be available in case a mandatory court appearance is necessary. The driver should go to work but remain available to run to court if need be. In the event that the Court grants the affidavit of corporate substitution, the tickets will be amended to reflect the name of the company and from there forward, the individual driver is off the hook and is no longer required to appear to answer the tickets.
EXAMPLES OF DOT VIOLATIONS
These days, it seems that many companies are getting slammed with DOT tickets. My guess is that it's another way for big government to tax the little guy. But my opinion aside, what are some DOT violations that tend to be commonly issued? Equipment violations are very common. They can be issued because of low air in a tire, the truck failed to keep a properly working extinguisher on board, broken mirror, etc. Then, there are violations regarding the safety of the truck. For instance, an uncovered load (the contents in the back of the truck are exposed), debris on the highway, carrying of hazardous materials, inspection and/or registration violations, too many occupants in the vehicle, etc.. Overweight DOT violations tend to be not only common, they can be very expensive. Each vehicle has a weight capacity that must not be exceeded. If an operator is pulled over, the truck and its contents may be weighed to determine if the acceptable weight restrictions are being followed. In case they're not, a ticket is issued and the fines can be very hefty and depend on the amount of weight that the offending vehicle was over the maximum weight capacity. There are also many other DOT violations but too numerous to cover in a legal guide. If you or your company receives DOT tickets, you may want to consider consulting with an attorney that is experienced in handling such violations.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters, DOT and Trucking violations as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
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Luigi Vigliotti is a Speeding Ticket Attorney in Garden City, NY. Click Luigi's profile to discover their Avvo Rating, write a review, and read professional endorsements.TRAFFIC TICKETS CONTINUED---WHAT YOU NEED TO CONSIDER WHEN YOU GET A TICKET
HOW CAN I POTENTIALLY HAVE MY TRAFFIC TICKET DISMISSED?
There are legal arguments that can be made that may result in a dismissal of your traffic ticket. One of the most common ways to secure a dismissal is to attack a ticket and accompanying supporting deposition for its failure to be facially sufficient. All this means is that the ticket/supporting deposition do not meet certain legal criteria. Once a supporting deposition is demanded or provided, the traffic ticket and supporting deposition must make out all of the elements of each offense, must plead the elements through non-hearsay allegations and must provide reasonable cause to believe that the accused motorist actually committed the offense(s) charged. These arguments are very technical and may result in a dismissal. Or in the alternative, even if the motion doesn't result in a dismissal, the filing of it may cause some prosecutors to reduce a traffic offense that might otherwise not have been reduced due to the motorist's record or the circumstances of the alleged traffic offense.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
TRAFFIC TICKETS 102---THE TRIAL OF A TRAFFIC TICKET
Once plea bargaining has broken down, other than some legal arguments in support of a dismissal, you’re left with either pleading guilty to one or more tickets or going to trial.
You should realize that the reason why it may be advantageous to hire a lawyer is because trials may be complicated and involve skills that the average person does not possess. Let’s play out a scenario. An officer issues you a ticket. You go to court on your own. Because you’re not an attorney, you’re not aware of legal arguments that you can make that may result in a dismissal. By the time you are aware of these legal arguments, the time to make them may have passed. Thus, you are time barred from asserting some of these arguments and now you’re only options are to plead guilty and jeopardize points on your license, higher insurance premiums and/or interruption or possible loss of license or driving privileges or going to trial. You decide to go to trial.
There you are on the day of trial. The officer who issued you the ticket appears. He or she is presumably well trained at testifying. The prosecuting attorney is presumably well trained at how to exam a witness during trial. You have no idea what questions to ask and equally problematic, you have a judge that has little to no sympathy for the fact that you’re not a lawyer and you have no idea how to cross-examine a witness. You should know that cross-examination of a witness is an art. You need to know what questions to ask, how to ask them, what questions not to ask, how to control a witness from offering testimony that is adverse to you, etc…
This is why you might want to consult with an experienced traffic lawyer. All traffic tickets have elements that must be proven by a particular standard of proof. If one of those elements is missing, you may be entitled to judgment as a matter of law, i.e., a dismissal. However, not only do you need to know what those elements are, quite often, you need to know how to attack the prosecution’s evidence. As stated above, this is where cross-examination of a witness is critical. You need to know how to frame questions so that they’re not objectionable. And if there is an objection, you need to understand evidence and substantive law to overcome objections. Moreover, you really do have to know what you’re doing even when it comes to something as seemingly simple as a traffic ticket. While you certainly have every right to handle your own traffic ticket, you need to understand that doing so may come with adverse and irrevocable consequences.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
THE STAGES OF A CRIMINAL CASE---FROM ARRAIGNMENT TO TRIAL
This guide will educate you on the various stages of a criminal case from arraignment to trial. However, this guide does not cover the appeals process.
WHAT ARE THE STAGES OF A CRIMINAL CASE?
The first stage of a criminal case is the arraignment. An arraignment is a procedure whereby the accused, called a defendant by the court system, appears before a Judge. Typically, two things are done at an arraignment. The first is a plea of guilty or not guilty. The vast majority of individuals do and should plead not guilty. This preserves their rights for later on if it’s decided that a trial is in the client’s best interests. Often, defendants will hear their attorneys arraign them by (a) waiving a public reading of the charges, (b) entering a plea of not guilty and (c) demanding a jury trial (or the appropriate trial depending on various factors). The second part of an arraignment is to decide the issue of bail as well as some other ancillary things. A person may be released on their own recognizance (what we call ROR), conditionally released to probation (CRP), remanded (this means that you’re not given the option of making bail) or bail may be set by either a cash amount and/or a bond alternative. Also, at the arraignment, orders of protection may be issued, a person’s driver’s license may be suspended or impacted in some way and a person may be ordered to undergo some form of substance abuse treatment or anger management.
ROR means that the person is released without any bail. CRP means that you are being released with the condition that you report to probation every time you appear in court. This means that a condition of your release is that you check in with probation every court date. It does not mean that you’re formally on probation. Rather, it means that probation will be monitoring your court attendance. Remand means that the crime is severe enough that the court deems you a flight risk enough to not even give you the opportunity to post bail. This is typically reserved for those that are alleged to have committed very serious crimes or those that are on parole or probation and violate the terms of parole or probation. Cash bail is exactly what it sounds like. The Court sets a monetary amount that you must post. So if for example, the Court sets $5,000 bail, then you must post $5,000 bail to be released. The person who posts the bail (whether it’s the accused or someone else) is known as the surety. When the matter is formally resolved, the cash bail, provided that there hasn’t been a bail forfeiture, will be returned. While you should check with the clerk’s office, I believe the standard rate that the counties in NY keep is 3%. In other words, you will get back your $5,000 minus 3% that the county will keep for its fee. A bond is where you go to a bail bond company. Typically, the bail bond person charges a fee known as a premium which is set by law. This fee is generally non-refundable. A bail bond person will also typically require some form of collateral that should be returned once the matter is resolved. In my experience, bail bond companies usually require a deed to property or some other form of collateral that is worth the amount of the bond. In the event that a person fails to appear in court, two things may happen. (a) A bench warrant may be issued but stayed (that means the warrant has been temporarily suspended) or it may be issued with no stay. (B) Bail that has been posted may be forfeited. This means that the surety (the person who posted bail) loses his/her bail. If a regular person posts cash bail, they will lose that bail. If a bail bond company posted bail, they will lose their bond. Quite often, bail forfeiture is stayed (i.e., temporarily held off). This allows the defendant to appear within a short time of their missed court date before bail is forfeited.
WHAT HAPPENS AFTER THE ARRAIGNMENT?
Once the arraignment happens, the matter is usually adjourned for a conference to another courtroom. Clients often ask what a conference is and how long a case will take to resolve. A conference is essentially a court appearance whereby your attorney is able to have a meeting in court with the Judge and the prosecutor’s office. At this conference, the DA’s office may communicate an offer (i.e., a proposed disposition of the case) or they may still be in the process of investigating. Clients should know that there are times when conferences can be beneficial to clients. And while most clients want to resolve their cases as soon as possible, there may be tactical reasons to allow a case to progress longer. Thus, the concern of how long a case will take to resolve is valid but more importantly, is whether a case is resolved in a client’s best interests. Sometimes, a client’s best interests require more appearances and a longer time to resolve.
During the pendency of a criminal case, a defense attorney should make a combined demand for a bill of particulars and discovery. In a violation or misdemeanor case, this may be done as early as the arraignment. However, in a felony matter, a client’s right to discovery doesn’t become triggered until an indictment occurs. Discovery is just a technical term for evidence that the DA’s office may be statutorily required to provide you so that you may be informed of some of the evidence against you.
WHAT HAPPENS IF MY CASE CAN’T BE RESOLVED BY PLEA BARGAINING?
Quite often, plea bargaining can break down for one or more reasons. The District Attorney’s Office (also referred to as “the People” or “the prosecution” may not want to extend a plea offer for one or more reasons. If the client then is unwilling to plead to the top charge of what he/she is facing, negotiations will break down. On the other hand, a client may not want to plead to whatever the DA is offering or may not want to plead guilty to anything in the belief that they did nothing wrong or that there is a lack of proof of guilt or that a plea of guilt may result in unacceptable collateral consequences such as loss of a job, license, reputation or some other undesirable result. Plea bargaining may also break down because the judge’s punishment (aka sentence commitment) may not be acceptable to the client.
If the matter cannot be resolved by a plea of some sort, the case by necessity will enter into a litigation phase. Litigation involves motion practice, pretrial suppression hearings and of course, trial. Motion practice may result because one of the parties is asking the Court for a ruling and the other side does not agree. Thus, a written motion may be submitted asking the Court to rule on one side’s request for legal redress. Pretrial suppression hearings are generally hearings to determine whether a defendant’s constitutional rights have been violated. While there are many types of pretrial hearings that involve a myriad of legal issues, the most common hearings are (1) Dunaway (a hearing to challenge whether law enforcement had probable cause to arrest or search); (2) Wade (whether a pretrial, police arranged identification was unduly suggestive and if so, whether the witness has an independent basis upon which to make an in court identification); (3) Huntley (a hearing to determine whether an accused statements to law enforcement were (a) voluntary; (b) made in violation of his/her Miranda rights; (c) made in violation of his/her right to counsel; and/or (d) made knowingly and intelligently; (4) Mapp hearing (a hearing to determine whether property and/or observations should be suppressed because of an 4th Amendment search and seizure violation).
The purpose of the aforementioned pretrial suppression hearings is twofold: (1) to correct any constitutional violations by asking a judge to suppress evidence against the accused. And (2) to get a preview of the DA’s case so that even if suppression doesn’t result, a client may make an informed decision regarding whether trial is an option to be pursued. If the evidence presented is strong against a client and the witnesses testify credibly, an accused may opt to avoid trial and take a plea instead. On the other hand, if evidence is suppressed, the DA’s office may offer a reduced plea because of a weakened case. Also, some of the prosecution witnesses will be required to testify at a hearing and the witness’s credibility can be gauged so that a client may determine if the same witness will be an effective or ineffective witness at trial.
WHAT HAPPENS AFTER PRETRIAL HEARINGS?
If a case still cannot be resolved by plea after pretrial hearings, the matter MUST proceed to trial. A trial can either be a bench trial (the judge acts as the jury and makes both legal and factual determinations) or a jury trial where the jury makes factual determinations and renders the ultimate verdict. Regardless of whether you opt for a bench or a jury trial, either way, the prosecution is required to prove your guilt beyond a reasonable doubt. You as the accused do NOT have to prove anything. You are shielded with the presumption of innocence. You may testify on your own behalf though you are not required to testify. Moreover, you may call witnesses on your own behalf. At the end of the trial, the judge or jury will either find you guilty or not guilty as to one or all of the charges against you.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
This guide will educate and give you some practical tips on traffic matters so that you can make an informed decision as to how to proceed.
SHOULD I HIRE A LAWYER FOR MY TRAFFIC TICKET?
This is a very good and often asked question. The answer may be different depending on a person's background and circumstances. While traffic tickets may appear to be easy, they can involve unsuspecting consequences that cannot be undone if they're not properly handled. You receive a ticket for failing to obey a traffic control device 1110(a), or speeding 1180(b), 1180(a), 1180(d), 1180(f), etc., failing to stop at a stop sign, 1172(a), or a seatbelt 1229(c)(3) or other ticket and you decide to handle the ticket alone. Depending on the circumstances, you may be able to successfully handle the ticket on your own. But here are some things that you should consider in deciding whether to go alone or hire an attorney to go on your behalf. First, some courts are much harder to plea bargain with than others. Second, whether you agree or disagree, some courts give more favorable dispositions to attorneys than clients. Quite often, this can be the result of an attorney making a legal argument that may result in a better deal. Third, as just mentioned, attorneys have legal training that makes them better suited to argue as to why a ticket should be dismissed or reduced. Fourth, if the matter has to go to trial, in my experience, motorists almost never know how to properly cross-examine a police officer. This is where an attorney may be most beneficial since attorneys are trained in this area. Fifth, if you hire a lawyer, you may not have to personally appear, though that is your option to decide. Sixth, quite often, courts will respect lawyers more than motorists. Seventh, if you're convicted because you were unable to successfully defend yourself, it will be much more costly for two principal reasons: (a) appeals are generally costly because they typically involve a fair amount of work and (b) your insurance premiums will go up for years to come.
IS IT WORTH IT TO HIRE A LAWYER FOR A TRAFFIC TICKET?
When you speak to a lawyer, you must make a decision as to whether you should hire him or her. And yes, cost does play a role in that determination. But remember, that attorneys generally understand not only how to defend tickets which on the surface may appear easy, but they also understand the bigger picture of how traffic ticket convictions may wreak havoc on your life for many years to come. For instance, if you have a CDL and you get points, you may lose your job. If you accumulate a certain number of points, you may temporarily or even permanently lose your license (See 25 year look back law). And as stated above, points can be very detrimental to your insurance premiums which will cost you a lot of money for many years. So in the end, even a simple traffic ticket is something you should consider hiring an attorney to represent you on since doing it yourself can have dire consequences.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well.
We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton. And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
PRACTICAL TIPS WHEN YOU'RE STOPPED FOR A SUSPECTED DWI/DUI OR GENERAL TRAFFIC STOP
This guide will educate and give you some practical tips on what you can do when you're stopped for a suspected DWI, DUI or general traffic stop. These are some of the rights that you may exercise when interacting with law enforcement.
SHOULD YOU BLOW INTO THE BREATHALYZER?
This is quite arguably one of the most common questions I encounter from family, friends and clients. They all want to know, "should I blow or not?" The answer to that question is: IT DEPENDS. There is no one size fits all. To start, if you've been drinking, by agreeing to take a chemical test, you are allowing the government to freely accumulate incriminating evidence against you that will undoubtedly be used to prosecute you. On the other hand, if you refuse to take a chemical test, it could have serious repercussions related to your driver's license. In New York, apart from prior convictions as well as the type of license a motorist possesses, generally speaking, a refusal to take a chemical test may result in a revocation of one's license for a minimum period of one year. If you possess a commercial driver's license or you've been convicted before, the revocation may be longer.
The question then of whether you should blow or not depends on several factors. First, have you been drinking and if so, how much? The general rule (though I am NOT advocating this) is that a person should not consume more than one standard drink per hour. A standard drink is defined as one 12 ounce beer, one 5 ounce glass of wine and one 1.5 ounce of distilled spirits. You should note that there are other factors that affect whether someone is affected by alcohol but again, the general wisdom has been no more than 1 drink per hour. So getting back to the original question, should you blow or not? Well, if you've had more than one standard drink per hour, your blood alcohol level may come back over the legal limit of .08 percent. And if it comes back at .08 or greater, you will be charged with a misdemeanor DWI. But before you decide whether you should take the test or not, remember that if you've never been in trouble before, if there was no accident and you blow below a certain blood alcohol level (depending on the county), you may be able to plea bargain. If you're going to lose your job as a result of a conviction, you may want to refuse to take a chemical test since taking the test may make a prosecutor's case against you stronger.
Second, if you refuse to take the test, that will trigger a DMV hearing wherein the arresting officer must show, among other things, that (1) there was reasonable grounds to believe that you violated any section of Vehicle & Traffic Law 1192; (2) that your arrest was lawful (i.e., based on probable cause); (3) that the officer recited sufficient "refusal warnings" and (4) that the refusal was persistent. If these 4 things are shown, you are in jeopardy of having your driver's license revoked for a minimum period of one year and there is no guarantee that you will be eligible for a driver's license during that period. You may not be able to survive for one year without a license. It is true that even with a refusal, you may resolve your underlying criminal case and the refusal revocation will still remain. However, there are some ways to potentially regain a partial license while the revocation period is pending.
SHOULD YOU BLOW INTO THE BREATHALYZER---CONTINUED?
Third, if you refuse to take a chemical test, many jurisdictions will not plea bargain with you without a fight. Quite often, this situation requires the advocacy of a skilled DWI lawyer to poke holes in the DA's case.
To wrap it all up, if you blow, you will incriminate yourself if you've had too much to drink. If you haven't had anything or much to drink, you may want to blow. Otherwise, refusing to blow may result in a license revocation. Many motorists cannot cope with a full or even partial loss of their full driving privileges so this may be a consideration in assisting in answering the question of whether you should blow. However, blowing may allow the government to gather more evidence against you and if a conviction may cost you present or future employment, you may want to refuse. As you can see, the question of whether you should blow is complicated. It must account for how many drinks you've had, whether you need a full driver's license and whether a conviction will cause you disproportionate harm. It certainly is difficult, particularly if you've been drinking, to make a sound decision when you're under arrest and scared. But either way, you are forced by virtue of circumstance to make a decision. In the end, as I stated above, "should I blow or not" is best answered by saying, IT DEPENDS.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
PRACTICAL TIPS WHEN YOU'RE STOPPED FOR A SUSPECTED DWI/DUI OR GENERAL TRAFFIC STOP
This guide will educate and give you some practical tips on what you can do when you're stopped for a suspected DWI, DUI or general traffic stop. These are some of the rights that you may exercise when interacting with law enforcement.
WHAT TO DO WHEN AN OFFICER ASKS YOU TO EXIT YOUR VEHICLE IN A SUSPECTED DWI/DUI CASE
At some point, the officer notices indicia of alcohol and/or drug use. He asks you to step out of the car. While you're exiting the vehicle, the officer is studying your physical movements. He wants to see if you possess normal balance or if you're wobbly and unsteady on your feet. Also, he wants to see if you use the vehicle to balance yourself as you're exiting and after you've exited. Now that you've exited the vehicle, the officer asks you to submit to Standardized Field Sobriety Tests (SFSTs) and other physical coordination tests. These tests usually consist of three or more basic tests at the scene. They are the Horizontal Gaze Nystagmus, the 9 Step Walk & Turn and the One Leg Stand tests. These tests are known as divided attention tests. While many defense attorneys including myself dispute the reliability of these tests, in theory, these tests are designed to determine whether a person possesses, at the time of operation, adequate ability to safely and prudently operate a motor vehicle. You should note that even if you request an attorney, that alone does not prevent an officer from legally requesting that you submit to these SFSTs. Courts have ruled that once you request an attorney, officers must not seek to gather testimonial evidence against you. So what does this mean in practical terms? Testimonial evidence is spoken evidence. That means that once you ask to speak with a lawyer, an officer is not allowed to do or say anything that might reasonably get you to incriminate yourself by your words. However, an officer is not required to stop seeking physical evidence. That physical evidence may come in the form of breath, blood, saliva or urine or may come from an officer's observations of a suspect's performance on SFSTs.
CAN YOU REFUSE TO PERFORM SFSTs, SCREENING TESTS AND CHEMICAL TESTS?
You absolutely have the right to refuse to perform SFSTs. You also, have the right to refuse to take a Preliminary Breath Test (PBT) also known as an Alco Sensor test, which is a screening test that may provide an officer with probable cause to arrest. However, you should be aware that while you have a right to refuse to take a PBT, you can be charged with Vehicle & Traffic Law (VTL) section 1194(1)(b), which is a traffic infraction, for refusing to take the PBT screening test. Also, you have the right to refuse to take a chemical test of your blood, urine, breath and/or saliva. There is an exception in cases where a Judge signs a warrant to force a chemical test of one's blood. But suffice it to say that you may refuse to take a chemical test as well in most circumstances. The one caveat that I will cover in a separate legal guide is that if you refuse a chemical test when an officer has reasonable cause to request you submit to one and the refusal is persistent, your refusal may result in a revocation of your driver's license for a period of time.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
PRACTICAL TIPS WHEN YOU'RE STOPPED FOR A SUSPECTED DWI/DUI OR GENERAL TRAFFIC STOP
This guide will educate and give you some practical tips on what you can do when you're stopped for a suspected DWI, DUI or general traffic stop. These are some of the rights that you may exercise when interacting with law enforcement.
WHAT TO DO WHEN YOU'RE PULLED OVER BY A POLICE OFFICER
Imagine driving along and you see lights in your rearview mirror and you hear sirens. Suddenly, you're gripped with fear because you've had a few drinks. The officer starts to make his way to your driver's side window and proceeds to request your driver's license, registration and insurance information. You don't know what to do and you start to worry about what will happen.
First, you should try to remain calm. I realize that this may be difficult in this particular situation but you should do your best to not show any fear or worry because an officer may detect these emotions. Second, you should always be courteous and respectful because officers are no different than the rest of humanity. If you insult them or cause them to fear for their safety, they will likely hold it against you in some way. Third, if you've had something to drink or you've taken drugs (illegal or legal), you should say as little as possible. Remember that an officer pulled you over because of a suspected traffic offense. He already observed your vehicle speeding, failing to maintain a lane, failing to signal, etc...And while it's true that he may be incorrect in the belief that you violated the Vehicle and Traffic Law, at that moment, he believes you committed one or more of those traffic offenses. The officer may already have some evidence of intoxication or impairment if he observed you swerving or doing anything erratic in your control of the vehicle prior to the stop. Now, at the time he approaches your window, he may be looking for additional signs that you're intoxicated or impaired. Some of the things he's looking for are (a) an odor of alcohol or drugs on your breath and (b) slurred speech. This is why it is so important to say as little as possible. Think about it...the more you speak, the more opportunity you're giving the officer to detect whether you have an odor on your breath and/or slurred speech.
So now that the officer is near your window, what do you do? First, as I stated above, you may keep the conversation polite, respectful and brief. The officer will typically ask, "Do you know why I pulled you over?" This is a trick designed to get you to incriminate yourself. The officer hopes that you say something in response like, "I know I was speeding," or "I'm sorry I was swerving," etc... The officer will use these admissions against you because it legally supports his justification for pulling you over in the first place. The better course of action is to say shrug your shoulders and say nothing or at the very least, don't admit that you are aware that you were committing a traffic offense. Second, the officer will start to look for clues of impairment/intoxication. He will most likely ask, "Have you had anything to drink tonight?" Remember, you do NOT have to answer his questions. You have a 5th Amendment right to not incriminate yourself. In response to this, you may say, (a) nothing or (b) I would like to speak with a lawyer. In New York, you have an indelible right to counsel. Once you demand to speak with an attorney, an officer can still continue to investigate but he may not interrogate you any further.
WHAT HAPPENS AFTER YOU DEMAND TO SPEAK WITH A LAWYER?
As stated above, in NY, you have an indelible right to counsel. By saying, "I wish to speak with a lawyer," the officer should no longer interrogate you. However, this does not mean that the officer cannot ask any questions or that he cannot ask you to perform physical tests to determine whether you're intoxicated or impaired by the use of drugs and/or alcohol. In other words, asking for an attorney merely requires that the officer not ask you questions that may incriminate you. However, you should be aware that an officer may still ask your pedigree information. Pedigree information is biographical questions: name, date of birth, address, etc...There is a word of caution here. As part of their investigation, officers quite often will ask if you're injured, whether you've taken any drugs and/or alcohol and whether you suffer from illnesses like Diabetes. These questions have been held by courts to be completely acceptable even after a suspect has asked for an attorney. The reasoning for upholding these questions is that the Courts feel that it's important for the officer to be made aware of the suspect's medical and physical condition in case there is a medical emergency. For instance, if the person has ingested drugs and he passes out, an officer may alert medical personnel to the fact that the suspect has drugs in his system. Obviously, this information may save a suspect's life. But in the vast majority of cases, there is no life threatening emergency that necessitates asking those questions. So because those questions are legally allowable, as you may have guessed, a suspect's responses are quite often used against him as evidence of guilt. So when an officer asks at the precinct, "have you taken any drugs or alcohol within the last 24 hours," if the answer is yes, rest assured that that statement evidence will be used against you. So what should you do? Again, you have the right to not incriminate yourself. You may merely continue to request speaking to an attorney and politely advise the officer that you will not answer any questions without the aid of counsel. Moreover, you shouldn't sign anything without reading it first and you may even wish to refuse signing anything until you speak with a lawyer. Lastly, you should try to note the name of the officer and the time that you requested an attorney so that later on, if the government argues that you made incriminating statements, there is a chance that those statements and other evidence may be suppressed as having been elicited in violation of your constitutional right to an attorney.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
SEARCH WARRANTS CONTINUED
This guide will educate and give you additional information on the basics of search warrants. This guide applies to all criminal cases including, DWI, DUI and drug cases.
WHAT CONSTITUTES A SEARCH?
A "search" has taken place if the police officer's method of observation involved the use of devices that substituted for his/her own perception. Pursuant to People v. Clark, 103 Misc.2d 498, 426 N.Y.S.2d 692 (Sup. Ct., N.Y. Co., 1980), when a police officer is in a common hallway and puts his/her ear to the door of an apartment, the police officer is reasonable in his/her actions and has not violated 4th Amendment rights since listening with a naked ear from a hallway accessible to the public does not intrude upon any justified expectation of privacy of the occupants.
Flashlights---Pursuant to United States v. Lee, 274 U.S. 559, 47 S.Ct. 746 (1927), flashlights are NOT considered a search if they are used. Binoculars---Pursuant to United States v. Kim, 415 F. Supp 1252 (D. Hawaii, 1976), binoculars are considered a search if they are used but only if they substitute for the perception of the police office instead of an aid to the perception of the police officer. In other words, if the officer uses the binoculars to assist him/her in seeing something better than they can already see, it's not a search. However, if the binoculars enable the officer to see something he/she cannot see with his/her own perceptions, then this is a search. Whether a search has occurred or not often is decided after a hearing where testimony is given and a judge may decide whether a search has occurred.
Use of Dogs---Pursuant to United States v. Place, 462 U.S. 696 (1983), dog sniffs are not considered a search. Dog sniffs only reveal criminality but they do not intrude on constitutional rights. In New York, the case of People v. Dunn, 77 N.Y.2d 19 (1990) held that the use of specially trained narcotics detection dogs to conduct a "canine sniff" does constitute a search within the meaning of NY Constitution, article I, section 12 since resort to this investigative technique enables police to obtain information regarding the contents of a place that has traditionally been accorded a heightened expectation of privacy. However, given the uniquely discriminate and nonintrusive nature of such an investigative device, as well as its significant utility to law enforcement authorities, it may be used without a warrant or probable cause, provided that the police have a reasonable suspicion that a residence contains illicit contraband. Accordingly, where law enforcement authorities had a reasonable suspicion that defendant's apartment contained illegal drugs, the police had sufficient justification, while lawfully in the common hallway outside the apartment, to conduct a *canine sniff*, and defendant's rights under NY Constitution, article I, * 12 were not infringed.
Mail Cover is the inspection of the outside of every envelope that comes in a person's mail. Mail covers are not considered searches pursuant to United States v. Choate, 576 F.2d 165 (9th Cir., 1978).
A pen register is a record of all of a person's outgoing calls from a particular phone. Conversations can be heard as a result of this process. Reasonable suspicion is necessary to get a pen register in New York.
WHAT CONSTITUTES A SEARCH---CONTINUED AND WHAT CONSTITUTES A SEIZURE?
Federally, a pen register is NOT considered a search as explained in Smith v. Maryland, 442 U.S. 735 (1979).
Trap & Trace Devices are records of all of a person's incoming calls from a particular phone; conversations cannot be heard via this process. A trap and trace device is not considered a search.
Bumper Beepers are attached to a person's automobile to track their movement. Bumper beepers are not considered a search when they are used to aid the perception of the police officer as explained in United States v. Knotts, 460 U.S. 276 (1983). If the beeper provides information that is not found from visible surveillance as well then the beeper is considered a search pursuant to United States v. Karo, 468 U.S. 705 (1984) and People v. Colon, 96 Misc2d 659(Sup. Ct., Bronx Co., 1978).
What Constitutes a Seizure:
(1) In the Federal system, the US Supreme Court stated in California v. Hodari, 499 U.S. 621 (1991). that pursuit does NOT constitute a seizure. Seizure is an application of physical force or a submission to authority. (2) In New York, pursuant to People v. Cantor, 36 N.Y.2d 106 (1975), a seizure is when an individual is physically or constructively detained by a police officer, interrupting or limiting his/her movement. In New York, a seizure does NOT have to involve the physical touching of a detainee. In New York, pursuit is a seizure. In New York, shouting "freeze, police!" is a seizure. A police officer drawing his gun is also a seizure. Saying Stop can be considered DeBour Level 1 conduct and is allowed. A police officer can handcuff a suspect based upon reasonable suspicion of a crime.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
SEARCH WARRANTS---A BASIC PRIMER
This guide will educate you and give an introduction on the beginning basics of search warrants. This guide applies to all criminal cases including, DWI, DUI and drug cases.
Basic Concepts of Search Warrants
Search warrants are governed by the Federal Rules of Criminal Procedure Law section 41 and New York Criminal Procedure Law 690. The reason why a judge is required to obtain a warrant is that a neutral person who is presumably detached from the case must decide whether there is probable cause to search. Otherwise, without a judge, the government would have unfettered discretion to search the person and property of all citizens without adequate factual and/or legal justification.
Once property is seized by the government pursuant to a search warrant, a police officer (or other law enforcement agent) must, without unnecessary delay, return to the court with property and must file a written inventory of the property.
The warrant application may be made in writing or orally. The affidavit in support of the warrant must be made by a public servant (e.g., a police officer, an assistant district attorney or another public servant). Moreover, there must be reasonable cause (aka probable cause) to believe that a certain type of property can be found in a certain place and there must be facts to support that assertion.
When executing a warrant, there must be reasonable effort by the police to give notice of their authority and purpose and a copy of the warrant must be shown to the person whose premises it is upon request. If the police are not admitted after they knock and give notice of their authority and purpose, then the police may use whatever force is necessary in order to execute the warrant.
Special Requests in Search Warrants
Special requests in warrants: That the warrant be executed at any time---day or night. If there is reasonable cause to believe that the warrant cannot be executed between 6 AM and 9 PM or that the property could be destroyed, a warrant dictating that it may be executed at any time of day might be issued. A "no-knock warrant" gives authority to the police to enter a premises without knocking and without giving notice of their authority and purpose. This type of warrant is issued if the police have reasonable cause to believe that the property sought may be easily destroyed or that someone is in danger (the police officer or someone else). If there is a chance of physical destruction of property or serious injury to a person, a "no knock" warrant may be issued.
Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Riverhead and the Hamptons. Come visit our new office in Southampton.
And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.
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