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A
MOTORIST HAS A RIGHT NOT TO BE STOPPED WITHOUT REASON:
Under New York State Law, a police
officer must have seen a motorist commit a traffic infraction or
must be acting on information that a motorist has committed a
traffic infraction or a crime in order to stop a vehicle. If a
police officer cannot establish this; all evidence found as a
result of this illegal stop, including any observations of the
motorist, will be suppressed under the law. However, Officers
have become quite adept at circumventing the Constitutional
Protections afforded to all motorists by “inventing” an imaginary
violation. Typically failure to maintain lane, failing to signal,
as well as speeding are set forth as reasons to justify a stop.
In fact, it was recently revealed that one of Nassau County’s
former number one DWI cop, Joseph Lynch, was found by Internal
Affairs Unit of the Nassau County Police Department to have
improperly stop Motorists for no reason at all. This suspicion was
confirmed when Officer Lynch stopped several Internal Affairs
Officers improperly who were assigned to investigate him. Lynch
recently retired after these details were revealed for the first
time more than 5 years after these incidents occurred.
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A
MOTORIST HAS A RIGHT TO REFUSE ANSWER ANY QUESTIONS WHEN STOPPED
BY A POLICE OFFICER
The U.S. Constitution, as laid out by the Fifth
Amendment, as well as its New York State counterpart, and protects
motorists from answering any questions which may incriminate
them. When a motorist is pulled over by a police officer, the
motorist is not required under the law to answer any questions.
While the motorist will be required to produce their license,
registration, and insurance card, they are not required to answer
any other questions under both the Federal and State
Constitution. After handling over the aforementioned documents,
if the Police Officer begins to question a motorist, the motorist
should indicate to the Police that they are refusing to answer any
questions, and will not answer any questions without the an
attorney being present . Moreover, they should state in addition
to the above that they are invoking their constitutional rights to
remain silent, and will not to answer any questions without first
speaking to an attorney. A Police Officer following the law will
then cease questioning. However, it has been my experience that
despite this Constitutional mandate, Police Officers will
disregard a motorist rights and continue to question the motorist
in a coercive manner. The general rule is saying nothing, is
better to saying anything. Do not deny drinking, nor admit to
drinking. The better practice is to invoke your right to speak to
an attorney, and refused to answer any questions until one is
present. A person can rarely talk themselves out of a potential
arrest, and any statement made by the motorist will inevitably be
misinterpreted as admitted guilt, or taken out of context.
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| IF A POLICE OFFICER REQUESTS THAT I
EXIT MY CAR AFTER A TRAFFIC STOP I MUST COMPLY
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Under New York State Law, a police
officer can request a driver to exit his vehicle if there is a
valid traffic stop for a traffic infraction. The rationale put
forth is that for safety of the Police Officer, they may request
that a motorist, and even occupants under certain circumstances,
be asked to exit the vehicle. However, many times Police Officers
will request a person to exit so that they can separate them from
potential civilian witnesses in the car, or that they intend to
conduct Field Tests on the motorist outside.
4. A MOTORIST HAS THE RIGHT TO DECLINE
TO PERFORM ANY SOBRIETY TESTS OUTSIDE THE CAR
A
police officer cannot force a motorist to perform any tests
outside of the vehicle. A person is not required to perform
any Standard Field Sobriety Test outside of vehicle and cannot be
penalized or fined for their failure to do so.
Police Officers will rarely, if ever, tell a motorist that they
can decline to submit to any tests. In fact, they try to create
the impression that a person must submit to these tests, both at
the scene and the station. This is not true. There is no
legal requirement that a person submit to any of these physical
tests at the scene. In fact, there is no benefit in
submitting to these tests, which in my opinion, are highly
inaccurate. Based upon studies that have been previously
conducted, Officers incorrectly identified sober persons as being
intoxicated when in fact they were not based upon the results of
the tests. Given this high percentage of incorrect
conclusions that persons were intoxicated when in fact they were
not, there is no rational reason why a person should submit to
these highly inaccurate tests. In fact, these tests are
frequently given under circumstances that will cause a sober
person to fail, thereby giving the Police Officer a reason to
arrest the motorist.
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5. A MOTORIST HAS A RIGHT NOT TO TAKE A
BREATH TEST AT THE STOP
A police officer cannot force a person
to take a breath test at the scene. In fact, if a person
declines to take this test, there is no effect whatsoever on a
person’s license. While a ticket can be written, it will not
result in the lost of a motorist license. Given that these
devises are highly inaccurate, and do not provide a print out, it
is my opinion it would be unwise to submit to this test, as a
false high reading will result inevitably in an arrest, when no
arrest would have been made, and a Police Officer if inclined can
state a person blew any reading they would like to justify an
arrest.
6. A MOTORIST CAN REFUSE TO TAKE A
BREATH TESTS AND ANY PERFORMANCE TEST AT THE POLICE STATION
Under New York State Law, a person has
the right to refuse to submit to a chemical test back at the
station and can be forced to do so against his will without a
court first issuing a search warrant. While the Nassau County
Police Department, among others Police Departments used to advise
a motorist of this right, that is that they may refuse to submit
to breath, urine or blood tests prior to being ask to submit to
these tests, recently the Nassau County Police Department as well
as other Police Departments no longer advise Motorists that they
can decline this test, but merely ask the motorist whether they
will consent to take the test. If the motorist refuses to submit
to the test, they are advised of the potential consequences of
failing to submit to these tests, which is the immediate
suspension and possible revocation of their driver’s license
should they lose at the Department of Motor Vehicles hearing.
7.
A
MOTORIST HAS A RIGHT TO SPEAK TO A LAWYER BEFORE SUBMITTING TO A
BREATH TEST
The New York Court of Appeals in the
case of People v. Gursey has held that a motorist has a
qualified right to speak to a lawyer before submitting to a
breath, urine or blood test. Failure to permit a motorist to
attempt to contact an attorney, or failure to let a motorist
consult with an attorney prior to him taking the test, will result
in the suppression of a the results of a breath, urine, or blood
test. However, the Nassau County Police Department, Suffolk
Police Department, and New York State Troopers never inform the
motorist of this valuable right, and in the past have ignored
motorists’ attempts to contact a lawyer.
8. A
MOTORIST HAS A RIGHT TO AN INDEPENDENT BLOOD TEST IN ADDITION TO
THE TEST THE MOTORIST SUBMITS TO.
Under the Law, a motorist arrested in
New York State has a right to an independent blood test in
addition to the test that the motorist is being asked to submit
to. However, the Nassau County Police Department has changed its
policy and no longer even informs a motorist of this valuable
right, and has adopted procedures which prevent someone from
exercising this right even if requested. For example they will not
transport a person to a hospital that is less than 2 minutes away
to have a blood test taken, nor will they take an affirmative
steps to help a motorist to get a test done. In fact, they won’t
even tell doctors who are arrested about the right to draw their
own blood.
9. A
MOTORIST HAS A RIGHT TO A DMV REFUSAL HEARING SHOULD THEY DECLINE
TO SUBMIT TO A BREATH, BLOOD OR URINE TEST:
Police Officers try to intimidate motorist into
submitting to breath, urine, or blood tests by stating that if
they do not submit to the test that their license will be
immediately suspended and subsequently revoked. This statement is
not entirely correct. In fact, what they fail to advise is that
that the Police Department does not have the right to suspend nor
revoke a motorist’s license for failure to submit to the
aforementioned test. What they also fail to inform the motorist is
that the motorist is entitled to a Hearing at the Department of
Motor Vehicles to determine whether or not legal grounds exist for
a revocation of the motorist’s license. Despite the prevailing
belief all is lost; a motorist can win this hearing on many
grounds with the aid of an experienced DWI Lawyer.
For More Information And To Schedule a Free Consultation Call
Our Office: 1 516 794-3500
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