Sunday, May 7, 2017

Ithaca DWI Lawyer: The Fellow Officer Rule

from NY daily news, lots of officers at a scene

As DWI defense attorneys we are always looking for an angle in our cases. A perspective that may lead to a way to keep out evidence, diminish evidence, or even to show that police conduct was improper (illegal). Sometimes it is luck, which is just opportunity meeting preparedness. You have to look and then look some more, something maybe there that you don't see at first glance. In People v. Jace we have attorneys who make just such an argument. They saw something that could be used as a defense to multiple counts of New York DWI.


What did these attorneys see? 

After all this was an DWI accident case where a SUV hit a house. Not an easy case to defend by any stretch of the imagination especially in Long Island, NY.

Multiple Officers at a DWI Scene Can Mean Confusion and Inconsistency



When you have many different police officers responding to a scene you also have disorganization at times. Who is handling what? Are they working as a team? Who's making the arrest decision? What is that arrest decision based upon? If multiple officers are there who is in charge of what? Did they all share their information and testing? So many questions, so little time.

And in the melee, love that word, things get discombobulated! Well in the Jace case one officer arrives at the scene and sees the SUV, sees the lawn, sees the damages and then walks to find the driver. He meets up with the driver, questions him, and then hands him off to another officer who does the field sobriety testing, and preliminary breath testing.

Police Officer NUMBER ONE

On July 5, 2016, at approximately 11:55 p.m., Officer Tosi was alone, on duty, in a marked patrol vehicle, when he received a radio notification to respond to the scene of a motor vehicle accident in the vicinity of 1067 or 1069 Fordham Lane, in Woodmere. Officer Tosi arrived at that scene within approximately three to four minutes. Upon arriving at the accident scene Officer Tosi observed a white vehicle in the driveway of 1067 Fordham Lane leaning against the house, and observed a dark color SUV in a flower bed on the lawn of the adjacent property, 1069 Fordham Lane.
After exiting his patrol vehicle and beginning his investigation Officer Tosi observed tire marks on the lawn of 1067 Fordham Lane proceeding across a sidewalk and over a paved area, then continuing to where the SUV was stopped in a flower bed at 1069 Fordham Lane. Officer Tosi also observed damage to a telephone pole support wire, a walkway and the house at 1067 Fordham Lane, as well as the landscaping at 1069 Fordham Lane. Officer Tosi further observed damage to the right rear quarter panel and front end of the white vehicle which was abutting the premises at 1067 Fordham Lane.
 The owner of the premises at 1069 Fordham Lane approached Officer Tosi and told him that the SUV drove up onto her property, damaged her flower bed and she lost power in her residence. Officer Tosi next encountered an individual who was identified as a passenger in the SUV. This individual advised Officer Tosi that the driver of the SUV was walking westbound on Fordham Lane. Officer Tosi then began walking in the direction indicated by the passenger. 
After walking about twenty-five feet westbound on Fordham Lane, Officer Tosi observed the Defendant walking towards him. As the Defendant approached Officer Tosi he observed the Defendant to have watery eyes and the odor of an alcoholic beverage on his breath. Officer Tosi asked the Defendant if he was driving a vehicle; and, the Defendant stated that he did. Officer Tosi asked the Defendant where he was going; and, the Defendant stated that he was going to a friend's house. Officer Tosi asked the Defendant if he had anything to drink; and, the Defendant stated that he had one beer approximately five hours earlier. At this point Officer Tosi was of the opinion that the Defendant was intoxicated. He did not communicate this opinion to any of the other officers who had also arrived at the scene.
Police Officer NUMBER TWO

Officer Aigotti was one of the other officers who had received a radio assignment regarding this accident and who responded to the accident scene that night. She arrived at the scene shortly after midnight. When she arrived she observed that three corners of the house, and the support beam, of the house which had been struck, were compromised, and she observed severe front end damage to the SUV. Officer Aigotti also observed the Defendant standing on the sidewalk in the vicinity of 1069 Fordham Lane. Before approaching the Defendant Officer Aigotti spoke with another officer, whose identity she could not recall. Officer Aigotti then approached the Defendant to administer standardized field sobriety tests ("SFSTs"). When she first came into contact with the Defendant she observed him to have watery eyes and the odor of an alcoholic beverage on his breath. The officer asked the Defendant if he had any injuries, to which the Defendant responded, "No."  
Officer Aigotti then administered SFSTs. 
Three or four other officers were present at that time. This only increases the confusion here.
During the horizontal gaze nystagmus test Officer Aigotti observed the Defendant to display six out of six possible clues of intoxication. Officer Aigotti administered a vertical gaze nystagmus test which was positive for the presence of nystagmus, indicating an excessive amount of alcohol for the Defendant. During administration of the nine step walk and turn test Officer Aigotti observed the Defendant start the test too soon, stop walking, make an improper turn and stop counting. Upon administering the one leg stand test Officer Aigotti observed the Defendant hop and sway, exhibiting two out of a possible four clues of intoxication. Officer Aigotti also administered a preliminary breath test to the Defendant, resulting in a positive blood alcohol content reading of.10 percent. Officer Aigotti took notes while the SFSTs were being administered concerning, inter alia, her findings on the SFSTs, and gave those notes to Officer Tosi.

The Argument: Can One officer with limited knowledge make a New York DWI arrest using another officer's DWI investigation knowledge?


The argument before the court was that police officer Tosi was the ARRESTING OFFICER. 

BUT He needs to have more knowledge than he personally observed, namely watery eyes, odor, admission of alcohol, and an accident scene to make an arrest under DWI law VTL 1192. 

The Fellow Officer Rule Defense with a DWI Case

The defendant's DWI defense attorney made a great argument that the FELLOW OFFICER RULE did NOT apply in this situation because...

Citing the case of People v. Powell, 101 A.D.3d 756, 758, 955 N.Y.S.2d 608, 610 (2nd Dept. 2012), wherein the court made the following observations:
  Under the fellow-officer rule, if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or fellow officer or another police department, provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest (citations omitted). 

Many Police Officers at a DWI Accident Scene BUT NO Communication is an Issue

They had sufficient information for probable cause to make a DWI arrest together BUT they failed to 
COMMUNICATE it!

Here, the People (the prosecutor) did not present evidence to establish that the officers who stopped and detained the defendant and his codefendant actually received any information from another officer who may have possessed probable cause. Although the People demonstrated that certain officers who interviewed an eyewitness had sufficient information to constitute probable cause, the People presented no evidence that those officer communicated that information to the arresting officers prior to the stop and detention of the defendant. The People also did not present any testimony from the arresting officers as to what information they possessed or how they received it before they detained the defendant and his codefendant.

Fellow Officer Rule Be Damned They Were Close to One Another in Place and Time


The prosecutor argued that they were in close proximity of PLACE and TIME, or legally spatial and contemporaneous. But the court noted that the prosecutors did a poor job of bringing that out at the suppression hearing. No testimony was given by either police officer concerning their times, locations  to one another, or for that matter for the arrest itself, or when the field tests were given. It was a cluster in space and time measurements of many officers with NO proof of space or time.

Even With All The Police Problems and Issues The Court Finds Probable Cause for DWAI


But the court moved on as they sometimes do to find that there was enough proof (probable cause) to bring a charge under VTL 1192 (1) DWAI alcohol. Police don't need probable cause for an arrest for DWI (intoxication) when they can arrest for the lesser standard of driving while your ability is impaired.

A person may be arrested for violating Vehicle and Traffic Law §1192(1) (DWAI alcohol) if it is more probable than not that he or she exhibits 'actual[] impair[ment], to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver' (citation omitted). It is irrelevant that defendant was ultimately arrested and charged with common-law driving while intoxicated…. (the standard for DWAI is ANY EXTENT of impairment) 
Like the case sub judice, the court went on to further note: 
the fact of an accident may be construed to circumstantially suggest diminished motor control or impaired driving judgement by reason of alcohol consumption, without regard to proof of fault (see People v. Padmore, 44 Misc.3d 129[A], 2014 N.Y. Slip Op 50988[U], [App Term, 2d, 11th & 13th Jud Dists 2014] ['While the circumstances of the accident in this case may have been capable of innocent explanation…they nonetheless supported an inference that a crime had been committed because the vehicle had been driven by a person under the influence of alcohol'], quoting People v. Booden, 69 N.Y.2d 185, 188 [1987]; e.g. People v. Thomas, 68 AD3d 482, 483 [2009]; People v. Murray, 7 AD3d 828, 830 [2004]; People v. Cavanaugh, 264 A.D.2d 903, 904 [1999]; Villalobos v. County of Nassau, 15 Misc.3d 135[A], 2007 N.Y. Slip Op 50751 [U], [App tem, 9th & 10th Jud Dists 20070. 

The court then pounds this fact home by bringing up many, many cases decided for probable cause under VTL 1192 (the New York DWAI and DWI law statute) based upon similar facts and circumstances, odor, eyes, speech, accident, erratic driving:

People v. Tieman, 112 A.D.3d 975, 978 N.Y.S.2d 67 (2nd Dept. 2013)
 [observation of glassy eyes, slurred speech, the odor of an alcoholic beverage on the defendant's breath and erratic driving sufficient to establish probable cause to arrest for a violation of VTL §1192];
 People v. Sykes, 31 Misc.3d 126(A), 926 N.Y.S.2d 346 (App. Term 2nd, 11th & 13th Jud. Dists. 2011) [motor vehicle accident, admission to operation and alcohol consumption, watery, bloodshot eyes, slurred speech and the odor of an alcoholic beverage on the defendant's breath sufficient to sustain a conviction for driving while ability impaired beyond a reasonable doubt];
 People v. Gingras, 22 Misc.3d 22, 871 N.Y.S.2d 812 (App Term 9th & 10th Jud. Dists. 2008) [observations of results of motor vehicle accident, open container of alcoholic beverage, admission to operation, slurred speech, bloodshot eyes and odor of an alcoholic beverage on the Defendant's breath "established probable cause for defendant's arrest, at the very least for driving while impaired in violation of Vehicle and Traffic Law §1192(1), although defendant was not specifically so charged."];
 People v. Lizzio, 178 A.D.2d 741, 577 N.Y.S.2d 178 (3rd Dept. 1991) [accident, bloodshot eyes, slurred speech, the odor of alcohol sufficient to support a guilty verdict on the charge of driving while ability impaired];
 People v. Troche, 162 A.D.2d 483, 556 N.Y.S.2d 403 (2nd Dept. 1990) [erratic driving, bloodshot eyes, slurred speech and the odor of alcohol on the Defendant's breath provided probable cause for an arrest for driving while intoxicated];
 People v. McCarthy, 135 A.D.2d 1113, 523 N.Y.S.2d 291 (4th Dept. 1987) [bloodshot eyes, slurred speech, odor of alcoholic beverage coming from vehicle provided probable cause to believe defendant was driving while ability impaired];
 People v. Hilker, 133 A.D.2d 986, 521 N.Y.S.2d 136 (3rd Dept. 1987) [motor vehicle accident, odor of alcohol on the defendant's breath, defendant's admission to having consumed alcohol and beer containers found in the vehicle provided probable cause to arrest the defendant];
 People v. Blajeski, 125 A.D.2d 582, 509 N.Y.S.2d 648 (2nd Dept. 1986) [bloodshot eyes, slurred speech, the odor of alcohol on the defendant's breath provided probable cause to arrest for a violation of VTL §1192]

Final Conclusion of You Cant Always Get What You Want, a DWI Dismissal


So maybe they didn't have enough probable cause to arrest for VTL 1192 (3) DWI common law intoxication BUT they most certainly had enough to arrest for VTL 1192 (1) DWAI driving while ability impaired by alcohol. In fact that is one of the DW offenses that they can arrest and charge you for way after the fact in New York State.