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I was arrested in april for a dwai for meds that Im legally prescribed. Its a felony charge. The blood has not come back yet.

New Hyde Park, NY |

I had a witness in the car that signed an affidavit of what happened that night. They never mentioned him in the police report an indicated that I was alone. I was also denied the right to an attorney when I had repeatedly requested one. I was told I had no right to an attorney. It has been 150 days an the blood test still hasnt come back yet. How long til a motion can be made to dimiss the charges. I have medical documentation a notarized affidavit from my dr. stating my medical conditions the medication that I take an that it would not impair my ability to drive as long as Im taking it as prescribed. An the medication was taken over 8 hours before I was pulled over. I dont want a felony on my record obviously.

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Attorney answers 6

Posted

You had no right to an attorney when? During the blood test? Or when they tried to question you after you were in custody?

This is AVVO, a place for users to obtain general legal information to general legal questions. I am glad to help you in any way I can, within those limits. I wish to make clear I am only communicating with you for the sole purpose of exchanging such general information, and nothing more. It is not legal advice, which I can not provide because among other reasons I know few of the necessary details of your situation. I do not purport to represent you in any way, shape or form. Of course, if you would like to seek out my services, and if you are a NY resident, I will probably not put up very much resistance but representation would still necessitate a signed retainer agreement between yourself and I. Thank you.

Asker

Posted

They told me I had no right to an attorney and no right to a phone call either. Before the blood test was taken when I was taken to the hospital I repeatedly asked to speak to an attorney and they repeatedly told me no.

Posted

The fact that the medication is prescribed is probably why you weren't charged with possession of a controlled substance. Just because you have a prescription, however, doesn't mean that you can drive while your ability is impaired. If your particular drug doesn't impair you (and you have a doctor to back that up) that will help you at trial as it is a question of fact to be determined. Keep in mind that something must have caused the officer to pull you over in the first place. Regardless, now that your facing these charges you should have an attorney to represent you. S/he can best advise and guide you. If you were charged with a felony the people have to be ready for trial within six months.

Benjamin J Lieberman

Benjamin J Lieberman

Posted

BTW in NY the right to attorney doesn't attach, for the most part, until charges are formally brought against you and you are brought to court. Basically no right to an attorney just because they wish to draw blood or take some other lawful test.

Asker

Posted

I have several medical conditions for the last several years that I am being treated for by a few different doctors. One of them is a spinal injury for which I need surgery for. The medication I had with me was my ulcer medication and my anxiety medication. I did not have any pain medication on me at all. They never returned my medication to me. An this is the 2nd time in a year that this has happened to me. I was pulled over because the cop said that I did not signal when I left a parking lot. According to my attorney I was told that he had to have scanned my plate as there was another car that sped past me doing almost 80. An yet the cop chose to pull me over. I absolutly have a dr that wwill back me up. I have a notarized affidavit from my dr stating my medical condition an the medication that I am prescribed an it clearly states that as long as I am taking it as prescribed it would not impair my ability whatsoever. He also states that due to my spinal injury an my back and leg problems that there is no way that I could pass a field sobriety test. I also had a forensic evaluation done a few days after the arrest by a NY state certified OASIS person whose report came back extremely favorable and stating that it is his belief that I am a victim of a bad circumstance and that I do not have a substance abuse problem and that all my drug tests came back completely negative. He wrote a completely glowing and impressive report about me. AN you are incorrect about the attorney part ~ I quote from NYS law 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/her 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. I have done my research. Also I had a witness in the car with me which they failed to include on the police report and after I was arrested they told him to leave the scene and did not take any information from him or even check to see whether he was even intoxicated. Why would they indicate on the police report that I was alone when clearly that was not the case? The witness that was in the car with me gave me a written and notarized affidavit statement stating exactly what happened from the time we got into the car til the time I was taken into custody. They also went into my car and took my pocketbook out of my car and searched my property before I was given a field test or anything. This was done when I was just having a conversation with them. They also said that my movements were very fast and that I was speaking very quickly and kept asking me if I was smoking pot. There were also 8 cop cars that came to the scene and not one female officer was present either.

Lawrence A. Newman

Lawrence A. Newman

Posted

That's why it's called a "qualified" right It is not absolute, it permits some attempts to contact your attorney, not an unlimited amount of time or calls or that you have to speak with a lawyer before your test

Asker

Posted

you said it permits some attempts. They didnt let me make any attempts at all. They took my cell phone and would not allow me to contact an attorney when I asked to do so. That was the point I was trying to make. An it was not properly stored either. It followed me around the hospital for almost 2 hours in a box before I was finally brought back to the precinct.

Benjamin J Lieberman

Benjamin J Lieberman

Posted

Whether or not you were permitted to contact an attorney won't make or break the case.

Asker

Posted

The Point that I am trying to make is that my civil rights were violated several times... I asked for an attorney many many times and was told I have no right to an attorney. Which is not true. Everyone has the right to speak to an attorney and to make a phone call. AN my property was searched when I was just being questioned before any tests were even administered an before I was even arrested. They told the witness that was in the car to leave after I was taken into custody an indicated that I was alone in the car in the police report and almost everything in the police report itself was not even close to being accurate or true. When I was at the hospital and my father showed up the cop stated to him that the only reason I was pulled over was for failing to signal when I left the parking lot. In the report it says all these other things that never even happened. Even at the precinct the cop was telling me look its not like you were speeding or driving recklessly so theres nothing to worry about. There should be video and audio from that night right? An Being that I have a notarized statement affidavit from the person that was in the car with me if he moves out of the state will that present a problem down the road? An what about the fact that I have all of this medical documentation stating my medical conditions as well.

Posted

Hire a lawyer!

Joseph A. Lo Piccolo, Esq.
Immediate Past President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)
Jlopiccolo@hbclaw.net

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.

Asker

Posted

I already have an attorney. If you read some of my comments you would have seen that. I was just trying to find out some additional info.

Posted

You should hire an Attorney as soon as possible.

If you have any further questions or would like to speak to me about your case, you can reach me at LanceMeyer@LMeyerLawFirm.com or (516)-488-2255. Legal disclaimer: This is not legal advice and is not intended to create an attorney-client relationship. The post is only an opinion. You should speak to an attorney for further information. I try and answer questions in terms that the readers will understand. The poster is licensed only in NY, CT & NJ. If this post is useful to you, please remember to upvote it.

Posted

While I agree with the previous answers given, I suggest that a Motion to Dismiss can be made after six months because that is the CPL 30.30 time period for the People to be ready for trial and if they're not ready within that period of time, then the case is subject to being dismissed.

If a blood test doesn't come back within six months, then that means the People could not be ready to go to trial and that means the Motion should be granted by the Court.

You may call our office at 516-248-6600 or send an email to us at Ted@Thelawteam.com. This answer does not form an attorney/client relationship with anyone and any answers do not constitute direct legal advice and should not be followed unless and until you have spoken with an attorney of your choice.

Asker

Posted

Well it has been 152 days already and the blood test still is not back yet. My next court date isnt until the end of november. An I was told by my attny that the DA's office said that if the blood comes back with any trace of my medication at all between now and my next court date I will automatically be indicted for a felony charge, which makes no sense to me. I would have had to not have taken any of my medication for at least 3 days in order for nothing to come up at all or be in my system. I take my medication as prescribed and even though I took it over 12 hours before I was even pulled over why should I automatically be indicted if any trace comes back at all? Shouldnt it go by the levels of what was in my system? Especially considering that the forensic evaluation I had done just a couple days later came back with such an incredibly favorable outcome for me and all the tests came back negative?

Lawrence A. Newman

Lawrence A. Newman

Posted

There is "no" level for any other drug except alcohol. All they require is the presence of one of the listed drugs and proof of impaired driving. Every drug/medication affects people differently every day/every time dependent upon numerous factors.

Posted

I agree with my colleagues. Unfortunately NHTSA has been targeting prescription drugs. You can be convicted with prescription drugs, but there is probably a different standard. It isn't as easy to do as with alcohol or illegal drugs.

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