Wednesday, June 6, 2018

New York Window Tint DWI Dismissed

This is a recent 2018 New York DWI that was dismissed by the judge. The initial stop was for  excessive window tint (too dark) but when the case went to court it fell apart. BTW In New York State the law is no more than 70% tint.

Prosecutors Must Go First In New York DWI Suppression Hearings

When a defense attorney challenges a DWI case it is primarily based upon three things: No (lack of) probable cause for the stop of the car, No probable cause for the DWI arrest, and No basis for the charges as they stand. This takes the form of an OMNI-bus motion which is really multiple motions all combined into one.

The judge allows a hearing to allow testimony on the issues and the police witnesses will testify at this hearing. The prosecutor goes first because they have to provide their reasons for  the police behavior. Questions come up and need answers like why was the stop made, and why was the arrest made.

Predicate for Any Moving Violation or Equipment Violation Needs to Be Made

The usual police stop of a car is for an equipment violation or a moving violation. But the police must state how they knew there was a violation:

1. By their training and experience with speeding, with window tint, with whatever
2. By their speedometer or radar
3. By their use of a tintometer

If the price don't state how they knew there was a violation and what their justification was that a law was being broken that is an UN-lawful stop  Then everything that comes after that is the fruit of a poisonous tree and gets dismissed.

The Case is People v. Anonymous (likely because they were a youthful offender) and the record is being kept sealed and confidential.

Basically the stop was by an unmarked police car for excessive tint.

Under New York tint law excessive tint is anything more than seventy (70%) percent:

Vehicle and Traffic Law §375 (12-a) (b) (1-3) provides:
No person shall operate any motor vehicle upon a public highway, road or street: (1) the front windshield of which is composed of, covered by or treated with any material which has a light transmittance of less than seventy percent unless such materials are limited to the uppermost six inches of the windshield; or (2) the sidewings or side windows of which on either side forward of or adjacent to the operator’s seat are composed of, covered by or treated with any material which has a light transmittance of less than seventy percent; or (3) if it is classified as a station wagon, sedan, hardtop, coupe, hatchback or convertible and any rear side window has a light transmittance of less than seventy percent…. 
Operating a motor vehicle with excessively tinted windows on a public roadway is a violation of VTL §375 (12-a) (b) (1-3) and justifies the stop of that vehicle by the police (see People v. Cuevas, 203 AD2d 88 [1st Dept 1994], lv denied 83 NY2d 909 [1994]; see also People v. Bacquie, 154 AD3d 648, 649 [2d Dept 2017], lv denied 30 NY3d 1113 [2018] ["A police officer's observation of what are suspected to be excessively tinted vehicle windows…may justify a stop of that vehicle…."]; People v. Banks, 148 AD3d 1359, 1360 [3rd Dept 2017] ["The traffic stop was made after troopers observed the excessively tinted windows on defendant's vehicle and, as such, was justified."]; People v. Roberson, 155 AD3d 1683 [4th Dept 2017] ["The evidence at the suppression hearing established that the police lawfully stopped the vehicle in which defendant was a passenger because it had excessively tinted windows."]).
 In this case at the suppression hearing the police never made out their reasons for the stop. He provided NO testimony of how he knew?

In this case, Lieutenant Kaiser testified that the windows on the Nissan the defendant was driving were tinted. He did not, however, provide any testimony or evidence that he made a reasonable mistake of fact in believing the windows were excessively tinted (see People v. Jean- Pierre, 47 AD3d 445 [1st Dept 2008]), OR that he has training and/or experience in gauging the lawfulness of tinted windows, OR that he used a tintometer to gauge the “light transmittance” of the tinted windows, OR that his observations reasonably indicated that the Nissan’s tinted windows violated VTL §375 (12-a) (b) (1-3) or some other provision of the Vehicle and Traffic Law (compare People v. Bacquie, supra at 649 [Officer had difficulty seeing inside car on well-lit street from couple of feet away and, "although he did not recall receiving training regarding tinted windows, he had experience in this area, having made thousands of stops and written hundreds of summonses for illegally tinted windows."]).
Accordingly, contrary to the People’s contention, the stop of the defendant’s car was unlawful and the defendant’s motion to suppress observational evidence, chemical test evidence, videotape evidence and statement evidence is granted.

Sometimes challenging the police can lead to a great outcome, it's all in the details.

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