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DWI Witness Deposition Needed?

Rochester, NY |

A person I know called police and said I may or may not be drinking. They later called them back and said I was home fine there was no need for them to go to my house. I however was not home yet, 5 minutes away. The police went to my house anyways, I pulled in and received a DWI. The Police took a written deposition from the caller however the caller never signed it. Will the fact that they cannot use this deposition in court impact my impending case at all

Attorney Answers 4

Posted

It really should not impact the case. The police responded to a call, 911 or otherwise. Their direct observations are what will matter, along w/any tests performed on the road or at the stationhouse.

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.

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Michael J Palumbo

Michael J Palumbo

Posted

Unless they had independent probable cause to stop the vehicle the sole right they had to make the stop was the report from the civilian. I think that witness is critical to the case.

Posted

Simply receiving the first phone call gave the police a legally justified reason to go to your house. Once they were at your house, and saw that you had arrived, they had reason to investigate further, because of the conflicting phone calls they had received. I'm assuming that the further investigation revealed that you were allegedly DWI. So the fact that the prosecution MIGHT not be able to use the deposition in court could possibly impact the strength of the prosecution's case, if you decided to take this matter to trial. However, if the police officer's investigation once you arrived at your house, i.e. field sobriety tests you performed, what you blew in the preliminary breath test at your house, what you blew in the formal breathylizer at the police station, how much you told the officer you had been drinking, etc., provided the officer with significant evidence to charge you with DWI, then THAT significant evidence, and the sufficiency with which it was gathered will be the major factors in your case. The prosecution's ability to use the deposition might or might not just be icing on the cake. You should speak with an attorney in your area who is knowledgeable about such matters, because, no doubt you are facing at least one DWI misdemeanor, which is a serious charge, as traffic charges go. Good luck to you!

Matthew J. Werblin, Esq.
Attorney at Law
81 Molly Court
Niskayuna, NY 12309-2227
(518) 369-7580
mattw@nycap.rr.com

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Michael J Palumbo

Michael J Palumbo

Posted

Unless they had independent probable cause to stop the vehicle the sole right they had to make the stop was the report from the civilian. I think that witness is critical to the case.

Posted

Probably not. But if NY follows the Aguilar-Spinelli rule, the cops have to corroborate the informant's tip prior to contacting you or the contact and subsequent detention is unlawful. Usually, corroboration entails seeing you drive erratically. In your case, it would be observing indications that you were intoxicated as you exited your vehicle. The Aguilar-Spinelli rule has been overruled in several states, however, so you should ask your attorney whether it applies in your case based on your state constitution.

This answer is my personal opinion, offered for informational purposes only. It is not a legal opinion, nor is it legal advice, nor does it create an attorney-client relationship with anyone reading it.

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7 comments

Asker

Posted

This is interesting as NYS still has this law. The informant said they thought i may be drinking but had no clue. The cop was parked on the side of the street and pulled into my driveway behind me. No erratic driving was seen. Only thing that can be said is I seemed to be intoxicated as I exited vehicle (not the case) if this is not on police report I may have a case?

Michael J Palumbo

Michael J Palumbo

Posted

Unless they had independent probable cause to stop the vehicle the sole right they had to make the stop was the report from the civilian. I think that witness is critical to the case.

Asker

Posted

They were parked on the side of the road. I pulled up behind him passed along side him then into my driveway where he followed. I assume he could have put that I stumbeled out of car which would negate this entire explanation

Asker

Posted

To be clear I was never stopped/pulled over. I pulled into driveway and exited my vehicle. He then started asking me questions.

Michael J Palumbo

Michael J Palumbo

Posted

They have an exceedingly weak case whichever way you look at it. Michael J. Palumbo Web Site: http://www.AttackThatTicket.com Follow us on Facebook: http://www.facebook.com/pages/Attack-That-Ticket/111312942224527 1-877-99-NO-TIX (1-877-996-6849)

Asker

Posted

I was told as well as the informant, that I gave myself up by pulling in and getting out of the car

Michael J Palumbo

Michael J Palumbo

Posted

You were told wrong - do not listen to non-attorneys. Unless they observed a vehicle and traffic law violation independent of the claim from a 3rd party that you were intoxicated they had NO PROBABLE CAUSE to question you. Consequently, that witness MUST complete a supporting deposition and MUST testify at trial.

Posted

The police would not need the deposition to prove your guilt. If they were waiting for you at your home and saw you pull in, then they have evidence of your "operation" of a motor vehicle. The officers can also testify as to their opinion of your level of intoxication based on their observations (red watery eyes, slurred speech, alcohol on breath, unsteady on feet, etc.) as well as offer any scientific evidence of your blood alcohol content.

The caller simply gives the police probable cause to investigate you for DWI regardless of the deposition.

Richard Southard
212-385-8600
I am a former Deputy Bureau Chief with the Kings County DA’s Office and adjunct professor at John Jay College of Criminal Justice, with over 15 years experience specializing in criminal law cases. I offer free in-person, phone and video consultations.

All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com

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Michael J Palumbo

Michael J Palumbo

Posted

Unless they had independent probable cause to stop the vehicle the sole right they had to make the stop was the report from the civilian. I think that witness is critical to the case.

Richard C. Southard

Richard C. Southard

Posted

It's not even clear a car stop took place. In fact it sounds like just the opposite - they were waiting for him to come home, pull in and get out of the vehicle.

Michael J Palumbo

Michael J Palumbo

Posted

I think we are in agreement what I am expressing is that unless they observed an independent traffic violation they are dead in the water without the independent witnesses supporting deposition pre-trial and testimony at trial. If, however, they observed a traffic violation than the reason they were there on the street to observe the vehicle is irrelevant they can stop based on their own observations and any evidence of intoxication subsequently gleaned would be fair game and admissible.

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