Tuesday, November 1, 2016

Ithaca DWI Lawyer: Defending An Unconstitutional DWI Stop Just Got Harder

The Turn Signal,
So Simple Yet So Underused
You live and learn. That's life. Well over the years of practicing DWI defense you learn how to deal and defend what's right in front of you but now we have to watch out for stuff not written in the police report or the tickets.

Can police make up new stuff in Court to bolster, and make bad ticket DWI stops suddenly constitutional?

Ithaca DWI Stop Suppression Hearing Allows for Police Testimony Beyond the Paperwork

A recent Ithaca City Court DWI refusal case of People v. Marshall has a police officer making an illegal stop for an Unsafe Lane Change. Remember that to be an Unsafe lane change requires that other cars be on the road, so with a late night, no other motorists around turn who cares if it's out of the lines or not perfect?

Moving From Lane Unsafely. Under New York Vehicle Traffic Law §1128A says:

Whenever any roadway has been divided into two or more clearly marked lanes
for traffic the following rules in addition to all others consistent herewith shall
apply: (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

N.Y. Traffic Laws Have a Safety Purpose, Even New York's Unsafe Lane Change

The purpose behind having an unsafe lane change law is to protect other people driving. Everyone should stay in their respective lanes because people have to respect one another's space. We count on other motorists to follow the same rules of the road.

In Marhall's case he didn't stay within the lines so he was cited (given a ticket) for an Unsafe Lane Change. This was ruled by the court to be bad call, a misguided citation BUT

even though the officer only gave that moving violation ticket he also observed that Marshall failed to signal his lane change. Failure to Signal each and every lane change is a N.Y.S. violation of

VTL §1163, Failure to Signal Lane Change. Police officers do not have to issue tickets for every single infraction that they see. It is in their complete discretion to issue (cite) what they want to but here we have a use of retrospective. What could they have ticketed?

The Real World Versus The Police World When It Comes to N. Y. DWI Stops

Let's look back upon the driving behavior of Marshall. It's late at night, it's a confusing intersection, no-one is around, and even though Marshall gets slack for the Unsafe Lane Change he gets hammered for not using his turn signal. Now mind you in the real world using a turn signal while making a turn in multiple lanes of travel is not something that even the most prudent motorists do.

The court rules that even though Marshall is NOT ticketed for not using his turn signal by the police that (the failure to signal) is the requisite PC (probable cause) for the DWI stop. Remember, all constitutional police stops must show Probable Cause.

Police Must Have Probable Cause to Make an Ithaca DWI Traffic Stop

The Court also ruled that Ithaca police must have PC (Probable Cause) to make a traffic stop and not merely the lower Reasonable Suspicion standard. 

The Police "must either possess probable cause to believe that the driver has committed a traffic violation, or the officer must possess a reasonable suspicion that an occupant of the vehicle has committed, is committing, or is about to commit a crime."

More Important than DWI Traffic Tickets or Police Reports is Police Officer Testimony 

It's not what they ticket, nor what you report in their paperwork, but what they could have ticketed and what they could have reported. The police officer at any DWI hearing can add to (bolster) his paperwork. So sometimes it's not what you see that can hurt you but all that you can imagine.