Frequently Asked Questions

I was pulled over and accused of driving while under the influence of alcohol (DWI, DUI) – should I refuse the breathalyzer?

The most important thing an individual who is stopped and accused of driving while under the influence should know is their rights and the potential consequences of both refusing to submit to the test and actually submitting to the test. Like a statement, if an individual submits to a breath test, the results of the breath test can be used against that individual if they are subsequently charged and prosecuted for an alcohol or drug related offense.

Reciprocally, the refusal to take a breath test may result in the immediate suspension of the individual's license pursuant to the Vehicle and Traffic Law and would render the individual ineligible for a hardship license.

Furthermore, the refusal to take a test may create a rebuttable presumption at trial that the individual refused to take the breath test because they were intoxicated.

While there is no clear cut answer to the question, if an individual is informed as to the consequences of both refusing and not refusing to take a breath test, they will better understand what the best decision is for them.

I was arrested after someone close to me made a complaint against me. However now the person who made the complaint does not want to go forward. Will I be immediately released?

The short answer to this question is no. Once a complaint is made against an individual, the case is in the discretion of the police department and then ultimately the District Attorney's Office. Thus, even though an individual decides they no longer wish to "press charges", the individual may still be prosecuted at the discretion of the District Attorney's Office.

I was arrested recently and the judge issued an order of protection against me in favor of another individual. That individual keeps calling me and/or keeps texting me, emailing me, and contacting me on Facebook. We've made up and they no longer want the order of protection. Can I stay in contact with them?

No. It is important for you to keep in mind that an Order of Protection in New York State issued by a Judge can be valid for the time period stated within the order. Further, the order is for you to not contact and to stay away from the person, not the other way around. Under the law, that person theoretically is legally entitled to contact you. If however, you respond in any way, electronically, verbally or personally, you are subject to a new charge of Criminal Contempt which can be charged as both a misdemeanor and a felony. Said contempt charge is independent of the original charges and can be prosecuted even if the original charges are dismissed. Therefore it is irrelevant if the person who has the order of protection against you consents to contact with you. You must not respond in anyway and immediately contact your attorney so your attorney can contact the district attorney as well as the presiding Judge and the Court.

Someone I know was arrested. How long will it be before they see the judge?

In the City of New York, which includes the 5 boroughs, practically and generally speaking, one should reasonably expect the process to take 24 hours at a minimum. This time frame varies from case to case and a lot of times is dependent on how many other new arrests are "in the system", but as a general rule, 24 hours is a good, rough estimate of how long it should take from the time of the arrest until the accusatory instrument is drafted and the defendant will be scheduled to be arraigned before the Judge.

I was arrested but the police never read my my Miranda warnings. I know my rights. Will my case be dismissed because of this failure to tell me that I had the right to remain silent and that I had a right to an attorney?

It is important that every individual knows their rights. One of the primary functions of an attorney is to protect those rights. As is often dramatized on television, in the monumental case of Miranda v. Arizona it was mandated that the police notify an individual in custody and prior to being interrogated regarding their right to remain silent and their right to an attorney, amongst other rights. It is not required under the law that these warnings are administered simply upon the police questioning someone or simply upon their arrest as is widely believed. However, just because the police never read an individual their Miranda warnings does not mean that the matter is likely to be dismissed. While this is a complicated, in depth question which requires an in depth answer, a quick answer is that Miranda warnings only are relevant to statements made by an individual that the government wishes to use against said individual in their prosecution. While each scenario is truly fact specific, any particular case should be discussed with a competent attorney.

 

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The Guaranty Building  120 South Olive Ave., Suite 705  West Palm Beach, FL 33401
tel (561) 318-0531