Interviewer: I think with that particular you gave us a good example of a situation that anyone can get into that just doesn’t know the procedure of a criminal case. Would you like to provide us with the details of the other case in New York?
Carl Spector: This case is in a much different vein, it’s a DUI case I just wanted to go through. Some people ask me what are some of your different experiences in some of the different counties in New York City. I just wanted to go through one case that I recently handled in Brooklyn, in Kings Country.
While the case did not ultimately go to trial nor was it dismissed, I think it demonstrates some of the events that can happen positively even without a dismissal in some other counties. This was pretty hard fought and ultimately we did have a positive result.
A DUI Cases Can Take Some Time to Resolve; This Case Took 2 Years to Resolve in the Court
It is a DUI case and it’s a case that started back in May of 2012. This is a case that ended 2 years later. I handled this case for 2 full years with my client and during that time, we got to know each other very well. We worked together and spent many hours strategizing and trying to figure out our next move.
Misdemeanor Charges of Driving while Intoxicated in Brooklyn
A little bit by way of background with this particular case is that this is a DUI case that involved a situation where my client was alleged to have been driving while intoxicated as a misdemeanor. The discretion of the vehicle or traffic law or VTL 1192.3 is a misdemeanor in the State of New York. It was alleged that he was driving erratically on one of the public highways in Brooklyn.
The police were called by several people that were observing his driving as he was going along the highway. Ultimately, the police had a car in the area and followed this particular driver and tried to pull him over. They followed him off of a ramp off of the highway and essentially cornered him and approached him.
An Arrest Based upon Police Observations of the Signs of Intoxication Including Bloodshot eyes, Slurred Speech and an Unsteady Gait
By way of what happened next, he was observed by the police officers. They said that he had bloodshot and watery eyes, slurred speech, and had an odor of alcohol about his person. They ordered him out of the car, asked him some question. They observed that he was unsteady on his feet and placed him under arrest.
What happened thereafter is he was asked to take a breath test back at the police department and he refused to take a breath test. He was charged with DUI. He was also sent to the court.
The Driver Faced Six Separate Charges
In the court he was arraigned, he was charged with a variety of criminal charges and vehicle traffic charges. He was charged with VTL section 1128A, which is operation outside of a lane. He was charged with VTL section 1180D, which is speeding over the limit. He was charged with 1192.1, which is impaired. He was charged 1192.3, which is operating under the influence.
He was charged with unlawfully fleeing a police officer in a motor vehicle, charged in a third degree and he was also charged with the vehicle or traffic law section 1212, which is reckless driving.
Once he was released from court, I took on the case following when he called me. We met actually at his home. He invited me to his home to speak to him. After speaking with him for about 90 minutes he did retain my services and we went to court for the very first time at the Department of Motor Vehicles at a refusal hearing in Manhattan on May 8th, 2012.
A Breath Test Refusal in NYC Will Result in a Civil Action Motor Vehicle License Suspension Hearing; This Case Is Distinct from Any Criminal DUI Charges
At that time, the reason we were at the Department of Motor Vehicles was because he had refused to take a breath test.
There was a separate case that was opened up against him. For almost all people who are charged with a DUI and who failed to take a breath test, they are then charged at the Department of Motor Vehicles with a civil action for refusing to take a breath test.
At that first appearance, the police officer did not arrive and his driving privileges were restored and the refusal hearing was rescheduled. After many court appearances in the criminal court, the prosecutor never offered him any plea, whatsoever.
The Prosecutor Declined to Offer a Plea Bargain
Their stand was you go to trial or you plead guilty to the driving while intoxicated, which is a misdemeanor. They were recommending 6 months revocation of his driving privileges. At that time it would have been a 6 month ignition interlock device.
A DUI Conviction in NYC Now Entails a License Suspension, Followed by the Installation of an Ignition Interlock Device and a $5,000 Fine
That law is now changed; it’s now a year suspension and a $500 fine. Most importantly, a conviction to a driving while intoxicated is a misdemeanor.
We rejected those plea offers and did not enter into any plea that would have subjected him to a misdemeanor conviction. Eventually, the case was rescheduled in the Department of Motor Vehicles and we went back for the Department of Motor Vehicles refusal hearing. That occurred nearly a year ago on May 13th, 2013.
The reason why there was such a long delay was ordinarily between the first and second refusal hearing date, there can be as much as 3, 4 or 5 months between them. Some of the counties run a little late longer than that. The reason there was such a long delay was hurricane Sandy came through and it actually closed down the Department of Motor Vehicle’s office for several weeks, if not months and they since relocated. That was a main reason for that long delay.
Lack of Probable Cause Leads to Prevailing at the Motor Vehicle Hearing
We did go back to the Department of Motor Vehicles for that refusal hearing and that hearing was held on May 13th, 2013. The police officer did testify. I did get an opportunity to cross-examine the police officer. As a result of that hearing, the administrative law judge actually found in favor of my client.
It was found that there was no valid refusal because the police officer could not establish that he probable cause to believe that he was under the influence, which was a tremendous win for us. Even though it was not a win in the criminal court, he was able to not have his license suspended for one year and he saved himself over $500 in civil penalties.
From that win we were energized and continued to fight the case in the criminal court. We never had to return back to the Department of Motor Vehicles for the refusal because that was won by us. We had won that portion of the case.
Eventually I was able to get the minutes or the transcripts on paper from the Department of Motor Vehicles hearing that we won. I turned them over to the prosecutor’s office in anticipation of the case going to trial.
While I would have held on to them ordinarily and just use them myself, I felt that it was a good practice to be transparent with the prosecutor’s office and to use it in my advantage and offered to try and get a more lenient plea.
No Criminal Record and No License Suspension: The Win at Motor Vehicles Was Used to Promote a Resolution of the Criminal Charges
What I did was I made copies of them and turned them over to the prosecutor. I thought that my good faith and goodwill and the fact that their officer was already challenged once and came up somewhat short that that might vote well for my client. In fact it did.
Eventually they did offer him a very reasonable plea which allowed him to not have a criminal record and not have an extended term of suspension from the court conviction.
Prior Convictions Are Viewed as Aggravating Factors by the Prosecution
We were quite pleased it did not end in a dismissal of the criminal case but it did end in a very reasonable disposition of that matter so it is not of a criminal record. I think it should be noted that one of the other reasons why the prosecutor was always so unwilling to give my client a good disposition was he had a prior impaired conviction just for 2 years ago.
That was an aggravating factor. In the end we did prevail and we did get a very reasonable plea.
Interviewer: Because he had a prior conviction, this would have been a second offense then if it had gone through as a conviction, right?
Carl Spector: Yes, that is correct.
Being Charged with DUI Is a Stressful Time for the Defendant, Let Alone Facing Six Separate Charges
Interviewer: When you first met with your client, what did you observe about how he was able to handle this matter?
Carl Spector: He was very nervous; he was very concerned for himself and his family. He was somewhat anxious over what the result would be. He was asking a lot of very good questions, yet he didn’t really seem to be listening to the answers very much. I had to go over what we discussed a couple of different times before he processed the information.
After an Arrest, Most Individuals Face a Confusing and Complex Criminal Justice System but Benefit Immeasurably from the Guidance of an Experienced Defense Attorney
Through the years that I represented him, actually we would go through these things over and over again because some of these concepts can be somewhat foreign to people not familiar with the criminal justices system. When we first met, I would have to say that he distraught and disturbed and he felt a bit on the helpless side because he knew he couldn’t help himself. He needed outside help. I was lucky enough to get the job and get the job done.
Interviewer: He’s been through this situation before. Now, it’s looking worse for him. Now he’s asking questions and now he’s really taking it seriously I could imagine. As time progressed was he better able to listen and cooperate with what your needs were?
Carl Spector: Yes. In fact, he told me that I reminded him of his dad because sometimes I would have to be stern with him and try to impress upon him to listen more carefully. Our rapport increased and it got better over the course of several months.
Second Offenders Face Serious Charges and Are Less Likely to Be Afforded a Favorable Plea Bargain from the Prosecution
Interviewer: I understand with second time offenders the situation becomes increasingly difficult. Would that be accurate?
Carl Spector: Yes, it becomes much more difficult.