Thursday, 10 November 2022

How To Get A Resisting Arrest Charge Dropped In New York?

Resisting arrest or obstructing the police in arresting another person is illegal under New York law. According to § 205.30 of the New York Penal Code, a person is guilty of resisting arrest if he or she “intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.” 

Resisting arrest is a class A misdemeanor in New York. If a person is convicted of resisting arrest, they can be subject to the following:

  • Up to one year in prison or three years on probation, and/or,
  • A fine of up to $1,000

Additional charges to a resisting arrest charge can also be filed depending on the circumstances of the arrest. A person can also be charged with disorderly conduct or assault. Before you make any decisions, it is important to speak with a qualified Manhattan criminal attorney.  

Lebedin Kofman Case Result

People V. J.

Our client was charged with forcible touching, resisting arrest, and sexual abuse in the third degree in New York County criminal court in Manhattan. Lebedin Kofman defended this case for almost 2 years and would not accept any plea deal. These cases are very difficult in New York County as the prosecutors generally will not allow a deal without the client getting a criminal record. As our client was totally innocent, we could not allow that to happen. We were able to secure a full DISMISSAL of all charges for our very happy client in this case!

Charges included: 

1  PL 130.52(1)

2 PL 130.52(2)

3 PL 205.30

4 PL 130.55

Forcible Touching (defendant #1: 1 count) 

Resisting Arrest (defendant #1: 1 count)

Sexual Abuse in the Third Degree (defendant #1: 1 count)

Resisting Arrest Under PL 205.30

The law on resisting arrest was created as a deterrent to help protect police against individuals who might want to flee or fight back in the process of getting arrested. It also helps ensure that the process of legal arrests goes as smoothly as possible given that they can be stress and anxiety-inducing situations. However, complications might ensue when the defendant acts out in the heat of the moment, regardless of how simple or insignificant their actions are.

Unfortunately, there is no clear-cut way in which resisting arrest can be defined. It does not take much for a police or peace officer to accuse a defendant of resisting arrest and the act is up for interpretation by the arresting party. A defendant can verbally protest or object to the arrest but, even without actively fleeing, conducting any form of physical struggle or disagreement uncooperative to the arrest can count as resistance. A charge of resisting arrest can be filed against a defendant regardless of the conduct of the resistance, even if it was merely pushing a police officer away or raising their hands to prevent being handcuffed.

It may be tempting to protest being charged with resisting arrest in addition to underlying charges that caused the arrest in the first place but you should not act rashly in the heat of the moment. You have rights under the law but you may be able to have more success defending those rights with the presence and help of legal counsel.

How Can One Get Charges Of Resisting Arrest In New York Dismissed?

It is important to note that even if the original charges that caused the reason for the arrest are dismissed, the charge of resisting arrest may still stand alone. Getting the help of an experienced New York resisting arrest attorney is essential in making sure that your rights are protected.

To convict a defendant on charges of resisting arrest in New York, the prosecution must prove beyond reasonable doubt the following elements:

  • That the defendant intentionally and deliberately impeded, resisted, or obstructed a law enforcement officer from conducting a legal arrest
  • That the defendant was aware that the person they were resisting or obstructing was a law enforcement officer
  • That the law enforcement officer was engaged in the performance of their legal duties and acting lawfully

In the state of New York, law enforcement officers typically include police and peace officers. Security guards are considered private citizens and the laws on resisting arrest, therefore, do not apply to them.

Possible defenses to charges of resisting arrest are the following:

  • Self-defense – Police officers are allowed to use force as necessary to accomplish an arrest. However, if an arresting officer acts violently, the person being arrested may protect themselves in self-defense, especially if their health is being threatened. As an act of self-defense, the person resisting arrest must have done so after the arresting officer initiated the aggression.
  • Unlawful arrest – A person may be found not guilty of resisting arrest if the arrest was done unlawfully, meaning, without a warrant or probable cause. It is not advisable, however, to argue the legality of an arrest as it is happening especially if the officer is acting in their capacity lawfully. It would be better to determine the legality of arrest when you have legal counsel and help on your side.

These are just some defenses that may be useful to get charges of resisting arrest dismissed and should not be assumed as legal advice. It is crucial to note that each case is different and the circumstances of one case of resisting arrest may be significantly different from another.

Getting the help of an experienced New York City resisting arrest attorney

If you have been charged with an act of resisting arrest in New York City, Manhattan, or any of the surrounding boroughs, it is important to seek the help of a skilled criminal defense attorney. An attorney may be able to help you understand your rights under the law. Every defendant has rights that need to be protected. 

At Lebedin Kofman LLP, we provide qualified legal counsel and aggressive representation to our clients. Our experienced New York City resisting arrest attorneys may be able to build a comprehensive legal strategy based on the specifics of your case. A conviction on charges of resisting arrest may have long-standing implications and consequences. Don’t leave your legal defense up to chance. Call us today at (646) 663-4430 to schedule a complimentary consultation with one of our New York City criminal defense attorneys.



source https://www.lebedinkofman.com/how-to-get-a-resisting-arrest-charge-dropped-in-new-york/

Tuesday, 8 November 2022

What Is Forcible Touching in New York?

According to a study by RAINN.org, 29% of all sexual assault cases in 2013 happened while the victim was in traveling or in public transit. Sexual assault is a very serious crime and officials have enacted legal solutions to prevent sexual assault in public transport. In 2015, New York legislators amended the law on forcible touching (Section 130.52) to criminalize forcible touching on public transportation specifically. 

The amendment is aimed to be a deterrent to people who would like to take advantage of the crowded spaces in public transportation like the subway, buses, etc. to commit inappropriate sexual acts. However, while the amendment can be reassuring for commuters, being wrongfully accused of sexual assault can have lasting implications on someone’s life. Call for a free consultation with an experienced Manhattan forcible touching attorney today. 

Lebedin Kofman Forcible Touching Charges Case Results

PEOPLE V. C:

Our Client was charged with Forcible touching and sex abuse in the third degree in Manhattan criminal court in New York County. These allegations stemmed from alleged observations by MTA officers while our client was riding the subway. Lebedin Kofman defended this case in criminal court and Russ Kofman took the case to trial securing a NOT GUILTY verdict and full dismissal of all charges for our client. Lebedin Kofman later sued the NYPD for false arrest and secured a settlement for our client compensating him for this false arrest and attorney fees. 

The criminal complaint read as follows: 

Detective of the Transit Division District 2, states as follows:

The defendant is charged as follows:

1 PL 130.52(1)

2 PL 130.52(2)

Forcible Touching (defendant # 1: 1 count) Forcible touching

(defendant #1: l count)

3 PL 130.55

Sexual Abuse in the Third Degree (defendant #1: 1 count)

The New York Penal Code Section 130.52 defines Forcible Touching as an act that involves intentionally, and without legitimate purpose, touching the sexual or intimate parts of another person with the intent of degrading or abusing the person, or for sexual gratification. 

Forcible touching includes squeezing, grabbing, or pinching. As well as touching or causing someone to touch one’s sexual and intimate parts, regardless of whether either party is clothed or not. 

If you are facing forcible touching charges, seeking the help of a  skilled New York City sex crimes attorney is important. A criminal attorney can help you understand your rights, protect your freedom, and build a strong legal defense strategy against your charges.

“Intentionally, and without legitimate purpose”

The state of New York estimates that over 4.3 million people ride the subway every day. During busy hours, it is understandable that the platforms and the subway cars can get very stifling. In a crowd, it can be hard to maneuver, and people might inevitably be squeezed into one another. In this situation, it is one’s civic responsibility to report any wrongdoing should a person take advantage of the crowded situation. 

However, allegations of forcible touching can have serious consequences for the accused. Aside from the humiliation, it is difficult to gauge how a crowd can act against a person in their midst accused of doing something unsavory. This is why the law specifically codes the phrase “intentionally, and without legitimate purpose”. It is important to be able to distinguish between innocent contact caused due to being confined in a tight space over malicious behavior aimed at sexual gratification.

As such, in cases of forcible touching, the following elements must be proven to have happened:

  • The date and time when the alleged instance of forcible touching occurred
  • That the defendant did the act intentionally, and without legitimate purpose other than to degrade or abuse the alleged victim or for the defendant’s sexual gratification
  • That the touching occurred without the consent of the alleged victim

It is also important to establish whether the following factors exist during the contact:

  • Consent – As defined by New York law
  • Intent – Establishing that the act was accidental and unintentional is crucial in building a defense against forcible touching

Other defenses against forcible touching are also possible depending on the circumstances of your case such as mistaken identity or the statute of limitations. Getting the help of an experienced forcible touching attorney is crucial to understanding your options under the law.

Penalties

Forcible touching is a serious offense, however, it is not a felony like other sex crimes. It is considered a Class A misdemeanor and as such, punishable with a prison sentence of up to one year. A defendant may also be required to do community service, and serve up to three years of probation or a combination of a prison sentence and probation. 

A first-offense conviction of forcible touching does not require being registered on the Sex Offender registry. However, Sex Offender registration may be mandatory if:

  • The victim is under the age of 18; or 
  • If the defendant has committed forcible touching in the past and was not convicted; or
  • If the defendant has been convicted of a similar crime in a different jurisdiction

Under the Sex Offender Registration Act, a person convicted of a crime that mandates registration would require the defendant to reveal the following information, among others:

  • Place of residence, 
  • Current and prior convictions that require their registration, 
  • Vehicle registration, 
  • Recent photographs 

In addition, those registered as Sex Offenders would need to constantly update this information on the state’s database. If a registered offender wants to relocate, they would also need to inform the state of their new address within 10 days of moving. Failure to comply with the requirements will result in being charged with a felony.

Consult An Experienced New York City Forcible Touching Attorney Today

A conviction for forcible touching can have long-lasting effects on your life. It is important to retain the services of a skilled Manhattan forcible touching attorney that can defend your rights and represent you aggressively.

At Lebedin Kofman LLP, we provide quality legal counsel and representation and put a premium on helping our clients understand their rights and options. Contact us today at 646-663-4430 to schedule a complimentary consultation with one of our New York City forcible touching and criminal defense attorneys.



source https://www.lebedinkofman.com/what-is-forcible-touching-in-new-york/

Friday, 22 July 2022

Common Mistakes Made after a DWI Arrest

First, it is important to understand the breakdown of what happens when you got pulled over and arrested for a DWI. People who have just been arrested really want to know how to evaluate their case and understand how bad it actually is. They want to know what the prosecutor is thinking and whether they can somehow get some leniency.

You Can Get Pulled Over for Simple Traffic Violations

The main question people should ask is, firstly, why was I stopped in the first place? The most common reason people get pulled over is actually because of tinted windows, obstruction of view, or a broken taillight.

In the state of New York, you can also get pulled over if you have something hanging from your rearview mirror. This happens all the time.

You Might Get Pulled Over for Driving Improperly & at Certain Times of the Night

Police officers are usually just looking for criminality; although, if they see a reason to pull you over on a Saturday or a Friday night where they suspect there are a lot of people on the road drinking and driving, then they can use any excuse to pull you over.

If you thought you were pulled over improperly, then the next step is for you to look for cameras where you were pulled over. You should take pictures of whatever road signs you saw or that you think you did not violate which the police claimed you had.

An Accident, Whether or Not You Were Intoxicated, Would Always Complicate Your Case

If there was an accident, it matters how severe the accident was. An accident would be an aggravating factor that could complicate your DWI because the prosecutor will look at that when evaluating what potential plea to offer and how to proceed with the case.

Never Make Admissions to the Police That You Had Been Drinking Alcohol

Another mistake people make is the statements they tend to give police officers. Ninety nine percent of the time when someone is pulled over by a police officer, one of the first things law enforcement will ask for after the license and registration is how many drinks you had. For some reason, most people instinctively say they had one or two beers.

People are generally of the mentality that they do not want to lie to an officer, but then they also want to downplay the criminality. Admitting to having consumed any kind of alcohol is the worst thing anyone can do because they will complicate their case.

There has even been a case where the court of appeals found that 13 hours was enough time to charge someone with a DWI. This means that even if the person had a drink 13 hours ago, it could give reasonable suspicion for the police officer to have someone step out of the vehicle and give them a breathalyzer test.

If you are ever pulled over, the only thing you should ever say to the police officer is that you do not drink. If the police officer asked how many drinks you had, you should never admit to drinking because that would substantially hurt your case.

Dealing with the Portable Breath Test

The next issue is whether or not you had to take the portable breath test or the Alco-Sensor after you stepped out of the car. This is a little gadget that you would have to blow into at the side of the road when you were pulled over. The portable breath test is not a reliable test and can never be admitted into evidence if the case were to go to trial.

The machine is called an Alco-Sensor, and it will tell the officer whether or not there was the presence of alcohol on your breath. The officer would have to wait 20 minutes before administering this test to make sure you had not consumed any food or put anything in your mouth that would cause a false positive or a false negative.

Dealing with Field Sobriety Tests & the IDTU Video at the Station

The next issue is whether you had performed field sobriety tests when you were pulled over and how you did on those tests. The officer makes an IDTU video when they take you to the precinct, and how you looked on the video would be very important in regards to how your DWI case is evaluated and how it proceeds.

They will take into consideration whether you were falling down drunk or whether you looked good, whether you were you walking and turning properly, whether you were standing on one foot okay, and if you could touch the tip of your nose with your fingers. Generally, they are looking to see if you were coherent.

Your performance on the field sobriety tests is, of course, very important, but the crown of it would be how you did on the Breathalyzer given at the precinct on video. New York City uses the Intoxilyzer 5000EN, so they would see how you did on the test, what your reading was, how many times you had to take it, and whether it was an accurate machine.

Refusing the Breath Test or Field Sobriety Tests

If you refuse to take a breath test at the station, the officer will look to see if you also refused the portable breath test at the side of the road or whether you gave the portable breath test reading and then decided to refuse the Breathalyzer when you got to the precinct.

If you decide to refuse, then it is best to refuse everything. Sometimes, people who have very high portable breath test readings then decide to refuse the breath test at the precinct, and that actually ends up prejudicing their refusal case.

In the case where you did refuse, you would actually need to have a separate civil proceeding at the DMV within 12 days of your arrest. The DMV would have to prove certain elements in order to give you a one-year license revocation, and in case you had refused, the statements you made would also affect your case.

Being a Repeat Offender Would Enhance Penalties

Your case will be affected if you were a repeat offender, meaning whether this was your first arrest or this was something you had done two or more times before. A lot of our practice involves dealing with people who have had two or sometimes even four and five DWIs. The highest number of DWIs we have seen was by a client who had 7 DWIs over a period of 35 years.

People with a Commercial Driver’s License Have to Face Very Strict Penalties

The last aspects to consider would be whether you had a commercial driver’s license and whether you were somebody who used their commercial driver’s license and needed to drive for work. Commercial drivers are often hurt the most because their license would usually be suspended as soon as they are arrested, leaving them unable to work.

Any plea that a commercial driver takes, such as a VTL plea or even a downgraded plea of driving while ability impaired, would result in an 18-month license revocation of their CDL. They would need a DWI attorney in New York who could flag that and then try to work something out with the prosecutor so that this would not happen.

To learn more about our New York DWI lawyers and how we can help you, contact us today at (646) 663-4430 and schedule a free consultation.



source https://www.lebedinkofman.com/mistakes-after-a-dwi-arrest/

Thursday, 21 July 2022

How Do You File a Claim for False Arrest and Excessive Force in New York City?

To speak with an experienced civil rights lawyer regarding your false arrest or excessive force case, call Lebedin Kofman today.

Lebedin Kofman Case Results

NEW YORK CITY SETTLES FALSE ARREST AND EXCESSIVE FORCE CLAIM AGAINST MAN ARRESTED AT BLACK LIVES MATTER PROTEST FOR $185,000

Our client, a photographer attended a BLM protest in Manhattan to take pictures of the event. As soon as the police came, they became extremely aggressive with the crowd and moved toward them. Our client was tackled by multiple police officers just for standing and taking pictures. One of the police officers took our client’s head and smashed it into the pavement causing him to lose consciousness. When he regained consciousness he was laying in a police van and was handcuffed. He was arrested and taken to the precinct with a simple bandage on his bloody head with many others from the protest instead of being taken to the hospital. After he was released from the precinct he rushed to the hospital and was diagnosed with a concussion as well as a torn labrum in his shoulder from the tackle. He attended physical therapy to treat the labrum and was forced to take a number of medications to treat the reoccurring migraines he has from the head injury. He was also diagnosed as having Post Traumatic Stress Disorder, PTSD due to the incident and goes to therapy to address it. The New York District Attorney dismissed the criminal charges against him without him ever appearing in court.

We immediately filed a claim against New York City for false arrest and excessive force. The City agreed to a pre-litigation settlement conference to discuss a resolution to this matter almost immediately. The City agreed to settle the matter for $185,000 before a lawsuit was even filed to compensate our client for the few hours that he was arrested and for the serious injuries caused due to excessive force by the police officers.

What Does False Arrest Mean?

Only the following situations may lead to a police officer arresting a suspect:

  • If they are issued an arrest warrant
  • If they have probable cause to arrest the person

The New York City Police Department website defines probable cause as “sufficient reason” based on known facts that a criminal act has occurred or that certain properties are connected to a crime. In the United States Constitution’s fourth amendment, the concept of probable cause was established. Your constitutional rights are violated if you are arrested without probable cause.

False arrest refers to arresting or imprisoning someone without a warrant. This is an extremely distressing experience. False arrest victims experience mental anguish and emotional distress. They also suffer from loss of reputation, lost job, post-traumatic stress disorder, psychological disorders, as well as negative effects on their family relationships. The community is also affected by police brutality, which creates fear and distrust in the police.

What Does It Mean To Use Excessive Force?

Excessive force is when police use more force to arrest or question an individual. These are some examples:

  • Kicking, hitting or beating
  • Chokeholds
  • Use of pepper spray, guns, or tasers in an unwarranted manner is not permitted
  • Refusal to seek medical attention
  • Searches that are unreasonable
  • Without cause, detention

As necessary, police officers can use controlled force to protect the public or personal safety and detain suspects who are violent. Non-combative people should not be subject to force.



source https://www.lebedinkofman.com/how-do-you-file-a-claim-for-false-arrest-and-excessive-force-in-new-york-city/

Monday, 11 July 2022

Is a DWI a Felony in New York?

The state of New York takes drunk driving offenses very seriously. But DWI charges and penalties vary depending on many different variables. If you have been charged with drunk driving in New York, it is important to get the assistance of a DWI lawyer in New York to answer any questions and defend you against serious charges.

In New York, drunk driving charges will range from a misdemeanor to a felony depending on the amount of alcohol consumed, whether it is a first offense and other factors. While a first drunk driving charge is usually considered a misdemeanor, this can quickly escalate into felony charges upon second and third convictions.

What are the Penalties for a DWI in New York?

In New York, there are several categories of drunk driving charges. 

A DWAI, or driving while alcohol-impaired charge, is driving while impaired by alcohol, but your BAC is under the limit of .08 percent. It becomes a DWI/DUI when the BAC is over the .08 percent limit. First-time DWAI convictions can be punished by

  • Fines of $300 to $500
  • Jail time of up to 15 days
  • A 90-day suspension of your license

A second and third DWAI will see increased fines, jail time, and driver’s license suspension time, but these charges remain misdemeanors.

A DWI conviction is where charges can go from a misdemeanor to a felony. A first DWI conviction with a greater than .08 percent up to a .18 percent BAC will be regarded as a misdemeanor with penalties of

  • Fines of between $500 and $1,000
  • Up to a year in jail
  • A minimum of one year driver’s license suspension

A second DWI conviction within ten years of the first will be considered a class E felony, subject to

  • Fines of between $1,000 and $5,000
  • Up to four years in jail or 30 days of community service
  • A minimum of one year driver’s license revocation
  • Installation of an ignition interlock device

If a third DWI is committed within five years, it will be considered a class D felony with the possibility of the following

  • Fines of between $2,000 to $10,000
  • Up to seven years in jail or 60 days of community service
  • A minimum of one year driver’s license revocation with a possibility of permanent revocation
  • Installation of an ignition interlock device

Aggravated DWI in New York

If you are caught driving with a BAC of .18 or higher in New York, you can be charged with an aggravated DWI. While this has many of the same penalties as a DWI, the main difference is the duration you will lose your driver’s license.

A first-time aggravated DWI in New York is still a misdemeanor, but your license can be revoked for a minimum of one year. Second and third offenses will be considered felonies and your license can be revoked for a minimum of 18 months. A third offense committed within ten years of the others will put you at risk for losing your license permanently. 

Getting the Legal Assistance of an Experienced New York DWI Attorney

No matter what degree of alcohol-related offense you are convicted of, it is still considered a criminal conviction. It will show up on your record, with anyone doing a background check on you able to see it. Having a criminal conviction on your record can have a serious negative impact on your life.

If you have been charged with a DWI in New York, you may have some defense strategies available to you. Call the experienced New York DWI attorneys at Lebedin Kofman at (646) 663-4430 or contact us online to schedule a consultation to discuss your legal options.  



source https://www.lebedinkofman.com/is-a-dwi-a-felony-in-new-york/

Tuesday, 5 July 2022

I GOT UPSET AND CALLED THE COPS ON MY SIGNIFICANT OTHER, CAN I DROP THE CHARGES OR WILL THEY GET ARRESTED FOR DOMESTIC VIOLENCE?

As criminal defense attorneys in NYC, we hear this question from people we speak to almost daily. It is very common that couples or family members are drinking or getting on each other’s nerves and one of them or a neighbor decides to call the police. Often, people explain that they did not want the police to make an arrest, but instead wanted the police to either escort the other person out of the house to cool off, or to scare them so that they would calm down or stop drinking or using drugs. But, instead, the police chose to make an arrest or take a report and now there is a warrant out for their significant other/ family member. The next question is “can I drop it?” The short answer is it depends on what you have already said to the police at the point you change your mind/ what you have already signed. Before you make any decisions, it is important to speak with an experienced domestic violence lawyer.  

When the police are called to a domestic disturbance, the general policy is that they have to arrest whoever they deem to be the initial aggressor. Years ago, the police would get called to houses for domestic violence complaints and oftentimes, by the time they came, people would calm down and say they don’t want anyone arrested. The police would leave and then people would start arguing and drinking again and people got killed or seriously hurt in several instances. They then would sue the City for the police not doing their jobs and that is how some of these policies developed. The NYPD has certain policies in place to make sure that certain domestic disputes are prosecuted and orders of protection are put in place to separate people to keep them from hurting each other and then suing the City. 

So, when you call the cops because your girlfriend is drunk and smacks you and will not calm down, they come to the scene, separate both parties and ask them what happened. They will then ask you to sign what is called a DIR or Domestic Incident Report made up of several yellow and pink pieces of paper. They may ask you to write out what happened on one of those pages and then write it out in their own words and then ask you to sign it. Be careful and mindful of the fact that what you are signing is being signed under penalty of perjury. Read it over before signing it. 

Often, people will either tell me that they didn’t read what the office wrote and it was wrong or that they told the officer that they didn’t want their girlfriend/ boyfriend, etc arrested, but the officer told them that if they wrote out what happened and signed it, then they would let them go. WRONG. If you do not want anyone arrested, you should not write out or sign a DIR because if you do, and the allegations make out a crime, then there will be an arrest made. 

So, can you stop an arrest from happening after calling the police for a domestic violence allegation? 

It largely depends on the allegations and when you are trying to stop the arrest. If you called 911 and said something along the lines of please send the police my husband is out of control and nothing specific about what happened and then the police come and you do not cooperate with the investigation or tell them to leave, then it is likely yes, no arrest will be made. 

If you call the police and say, my husband, named John, smacked me around and I’m bleeding from the lip and missing a tooth, please send the police, then the police will likely make an arrest even if you do not want to cooperate because they may have enough probable cause from the 911 call and possibly seeing you injured or other witness statements. 

When the police arrive on the scene, you must understand that the more you cooperate with the investigation, the more likely an arrest is going to be made. The police are not there to sort out domestic disputes or calm people down, if the things you explain happened to make out a crime, they are making an arrest or issuing an icard to arrest the person upon police contact. For example, if you say “John smacked me in the face and threatened me with a knife, and my 5-year-old was in the room at the time, but John is a good guy, he was just drunk and he pays all the bills, etc…I just wanted you guys to come to scare him or sober him up,” John is either getting arrested on the scene or they are issuing an icard for his arrest upon contact with the police. 

In that scenario, John would likely be charged with misdemeanor domestic violence charges of Assault in the third degree, Menacing in the second degree, endangering the welfare of a child, as well as others and full orders of protection would be ordered by the Court on behalf of the wife and the child in the room.

ACS would likely be called by the cops and ACS may file a neglect petition against John causing him to also have to appear in Family Court for subjecting the child to witnessing domestic violence.

If John had left the scene and you signed the DIR, then changed your mind before he was arrested, you would not be able to stop the arrest from taking place. It is important to remember that it is not you v. him, it is the People of the State of New York that prosecutes defendants, and the decisions regarding charges are made by the prosecutors that work in the country of the occurrence.



source https://www.lebedinkofman.com/i-got-upset-and-called-the-cops-on-my-significant-other,-can-i-drop-the-charges-or-will-they-get-arrested-for-domestic-violence/

Thursday, 30 June 2022

How Refusing the DUI Test Affects Your License

Refusals are a whole subsection of DWI law on their own. Someone who refuses the breath or blood test will need to have a DMV hearing within 12 days of their refusal and arraignment, and the clerk of the court will inform you about the notice for a refusal hearing at the arraignment.

It Is Possible to Get Your License Back at the Arraignment

Your license will be suspended at the arraignment, but you may be able to get it back when you go to this hearing if the police officer does not show up. You are then free to drive, and you will have your full driving privileges back until the second hearing.

The police officer will usually not show up at the first hearing, which is why you should definitely attend and be represented by an attorney so that you can get your full driving privileges back.

You Might Need to Join Certain Programs to Get Your License Back

The other issue will be the court. You will get a one-year license revocation and have to pay to get your license back if you lose at the hearing or if you default and do not attend. After that license revocation, if you plead guilty to a driving while ability impaired or driving while intoxicated charge, you will get the DDP, “Drinking Driver Program,” under the terms of your plea.

You will be able to have a conditional driver’s license even if you lose this hearing or default on the hearing and your license is revoked. However, you will not be able to have a conditional driver’s license if you do not take DDP.

These hearings are very important and are basically for the purpose of establishing that four elements have been met, namely that there was reasonable cause to pull you over, that there was probable cause to believe you were under the influence of alcohol, that the officer properly read you the refusal warnings which they would generally read off a card, and that you unequivocally denied taking this test.

Our DUI / DWI lawyers in New York have handled thousands of these hearings, and we have won a lot of them.

Lebedin Kofman LLP has been able to win these kinds of cases from every possible angle because we look through all the paperwork and the videos so we can attack a case from every angle. We try attacking the police officer’s reason for the stop, whether or not it was something we thought we could win.

We recently won a case involving this same issue. Our client was a limo driver who was parked on a Monday at five o’clock in his work vehicle. He was parked standing in front of a fire hydrant and the police officer’s reason for pulling him over was that he was illegally parked in front of a hydrant so the officer wrote him a ticket.

We actually found out that in the state of New York, it is not illegal to stand at a fire hydrant during hours of the day, meaning while it was daylight. We attacked the officer’s reasoning on that front and we were able to win the hearing by showing there was no probable cause for the officer to approach the vehicle and pull the person over.

The next issue is whether or not the officer had probable cause to believe the person was intoxicated. We generally want to attack the first two elements with the most aggression. The second important element is to look through all of the paperwork and see if it matches up with what is shown on the video.

The things that officers fill out on the paperwork are often just perfunctory — bloodshot or watery eyes, flushed face, messed up clothes, and the strong smell of alcohol — but then the video will show them filling out the paperwork, and the scenario would be completely different.

This is a very important nuance to remember and confront the police officer about if they do show up at the hearing so we could make arguments on that issue. Often, the police officer on the stand at the hearing may say the person had alcohol on their breath, or they may say that the person made an admission to drinking.

It is as though you are halfway there if you did not make an admission to drinking. This is very important throughout the DWI case, and we are sometimes able to win based on this issue.

There is then the issue of whether or not the officer had accurately and correctly read the refusal warnings and whether or not the person had unequivocally refused, which is why the report of refusal is generally the most important part of the hearing.

Police officers usually do not come to the first appearance, and they often do not make it to the second appearance either. If the police officer does not make it to the second appearance for the hearing, then the only evidence that would get put into the record against you is this report of refusal. This is why that is the single most important document.

The case could be put aside if we look through it and find that the police officer had made errors in the way they had filled out this paperwork. This actually happens a lot more often than people think, and it would just be a matter of noticing it, making the arguments, and then jumping on top of it. We are sometimes able to win the hearing just based on that.

We were recently at a refusal hearing where the officer did not show up to the second hearing as well, and the ALJ, or the “Administrative Law Judge,” was about to rule against our client. However, we then got the documents and noticed the way the police officer had filled it out.

The officer had never actually put the word, “no” in the section where it asked whether the defendant had unequivocally said he would not take the test. We were able to win the hearing because of arguments we made based on just that because that was the only thing on the record.

Things like this happen all the time, and it can be very detailed when it comes to these refusal hearings. That is why you should fight tooth and nail if your license was revoked because a revoked license would generally have a very large impact on you. You also have to pay a lot of money to get your license back, your insurance will go up, and you will feel the impact of that for a long time.

Call our DUI attorneys in New York today at (646) 663-4430 to learn more about how we can help you. Contact us now to schedule your free consultation.



source https://www.lebedinkofman.com/can-refusing-dui-test-affect-your-license/

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