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Fiandach & Fiandach (Rochester NY)

585.244.8910

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DWI and the Hearing Impaired

February 13, 2008

We sincerely hope that what follows will invoke a vastly needed dialogue. Since the enactment of former Highway Law ' 290(3) in 1910, there has been little progress made in attempting to deal with the unique situation presented by those motorists who are hearing impaired. When viewed in the context of alcohol related operating offenses, the hearing impaired are truly unique. They are fully capable of operating a motor vehicle. Further, no modification of the mechanisms are required for operation. When alcohol influenced operating offenses are considered, however, the differences are profound. When stopped for even a simple traffic infraction, an individual who is profoundly hearing impaired, will quickly learn that despite equal standing on virtually every front, it is the system which is profoundly impaired. While we are only now beginning to undertake what we hope will be a continuing study of this problem, we have identified several key areas in which little or no work has been performed; the stop, initial observation, the arrest, field sobriety testing, chemical testing and processing.

We commence with the stop of a motor vehicle. While it may be fairly said that the stop of a motor vehicle is unsettling for the majority of our citizens, for the hearing impaired, it can be a terrifying event. Often times, particularly if the basis of the stop is one or two trips over the fog line, the motorist will have little upon which to ascertain the basis for the stop. When the stop is of one with normal auditory skills, this lack of knowledge will seldom be a cause for concern. Most law enforcement officers have been trained to immediately inquire of the motorist, Do you know why I stopped you? While the basic purpose of this inquiry is to spark an admission as to the potential violation, it serves the additional purpose of clearing the air, if you will. Even if the motorist emphatically disagrees with the officer's observations, he or she will at least be commencing with knowledge of what is taking place and why.


With an individual who is profoundly hearing impaired, this is simply not the case. While the officer and the motorist are both thrust onto unfamiliar terrain, it is the officer who is in control. For the hearing impaired motorist, a stop under the circumstances described above can approach shear terror. The motorist is stopped for an unknown reason and the police officer has no means through which to communicate the relatively simple basis for the stop. Well-meaning officers will often times try to remove the motorist to the police vehicle where the two may sit side by side and communicate by means of writing. Good intentions aside, this can lead to a nightmarish experience when the hearing impaired individual is forcefully removed from his or her vehicle for his or her own good, with no knowledge of why the stop has occurred. If you think that this is not a problem, put yourself in the seat of the motorist. She is stopped for an unknown reason. On a dark road in the middle of the night she is persuaded to leave the sanctity of her vehicle for that of an unknown male who, coincidentally, is carrying a weapon. Moreover, the terror is compounded in those situations where the hearing impaired motorist has no experience with law enforcement personnel.


Initial observations present a difficult and, quite frankly, flagrantly discriminatory situation. Most who have profound hearing impairment cannot speak. Further, and despite the common misconception, lip reading is a fine yet imperfect art which requires a general familiarity among the individuals or the subject matter of the conversation. The officer has therefore been stripped of two of his or her most potent tools, manner of speech and the ability to reason. So-called divided attention tasks such as requiring simple information while the motorist retrieves his or her license is lost. Likewise lost is the ability to communicate a reasonable basis for what may have appeared to be an aberrant event in the operation of the motor vehicle. While the hearing impaired motorist is seated in his or her motor vehicle, there is no means through which the officer can attempt to discern what the motorist had to drink or where, nor is there any means through which simple mental skills such as reciting the alphabet can be carried out. While Horizontal Gaze Nystagmus appears to be facially sound, upon reflection it is not. The description of the motorist's obligations for accurate administration of this test preclude its administration under these circumstances.

Nor does the picture improve with the administration of so-called field sobriety testing. Again, these tests contain an integral mental component. The approved instructions have been designed to be moderately difficult to retain. Given the situation described above, there is no common ground upon which these tests can be administered. A test such as the finger to nose examination or the nine step walk and turn is a test of the individual's ability to comprehend just as much as it is a test of balance and neurological impairment. Additionally, due to the many and varied means through which hearing loss can ensue, even under the best of conditions there is no showing that poor performance spells intoxication. It is well-known that individuals who suffer from hearing impairment may also possess malformed inner ear structures. Thus, an individual who is hearing impaired may not be able to carry out balance oriented tests to the expected level of acuity.


Chemical testing likewise presents its own set of issues, particularly in the area of refusals. For a motorist's refusal to submit to a chemical test to form the basis of a refusal revocation, it is necessary that the motorist be informed in clear and unequivocal language that his or her license or privilege to operate a motor vehicle will be revoked if he or she refuses to submit to a chemical test. While it would seem that use of a printed Commissioner's Warning would alleviate much of the confusion which would otherwise arise, this may not always be the case. Further, the qualified right to counsel created by People v. Gursey, (1968) 22 NY2d 224, 292 NYS2d 416, mandates that a protocol be established to determine the precise means through telephonic communication with counsel will be afforded. While some of the larger police facilities are equipped with devices to facilitate communication by the hearing impaired, some are still not. Further, as we understand this equipment, it is necessary that the receiver be similarly equipped. This, as we know for most attorneys, is simply not the case.

While ignorance and lack of meaningful leadership in this area has permitted the arrest and processing of these individuals to continue virtually without change for eighty years, Federal Legislation appears to have the means through which to mandate the necessary reform, if the defense bar is willing to speak out on their behalf. The Americans With Disabilities Act, (42 U.S.C.A. ' 12132 [West 1995]) (hereinafter Athe ADA) was enacted to remove many of the bars that individuals such as the hearing impaired have been forced to face on a daily basis. In short, the Act prohibits a public entity from discriminating against any qualified individual with a disability because of that disability. An individual with profound hearing impairment is, under the terms of the Act, a qualified individual. According to the implementing regulations, the ADA requires the following:

(a) A public entity shall take appropriate steps to ensure that communications with * * * members of the public with disabilities are as effective as communications with others.

 

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

 

(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

28 C.F.R. ' 35.160 (1997).

 


Several key features stand out. First, a public entity is required to take those steps which are necessary to ensure that communications with * * * members of the public with disabilities are as effective as communications with others. The swath that is cut by this regulation is broad indeed. It means that, at the scene of a stop for instance, that the detaining officer is required to communicate in a manner which affords the same means of effectiveness as would be encountered by those with normal auditory skills. Note that the regulation does not say the same means, this would be ludicrous, but as effective. At the scene of an arrest, this could be afforded by the simple use of flip or flash cards which contain most of the commonly encountered basis for an arrest. Common responses could be contained in a set given to the motorist by the officer.

While at first glance such would seem effective for the administration of field sobriety tests, in all likelihood they would not. The nuances of two-way communication cannot be overlooked. It is at this point when sign interpreters should be made available.

Such is more than common sense, it is the law. When making the determination as to what type of assistance will be made available, the regulations under the Act place primary consideration upon the individual with the impairment. Pertinent in this issue, 28 C.F.R. Pt. 35.160, app. A, at 463 (1993) provides:

The public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice. This expressed choice shall be given primary consideration by the public entity. . . . The public entity shall honor the choice unless it can demonstrate that another effective means of communication exists * * *.

 


If doubt exists as to the importance of this requirement, the Act's definition of auxiliary aids and services expressly includes qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments. (See, 42 U.S.C. ' 12102 [emphasis supplied herein]).

In our experience in dealing with arrests of this type, we frequently find a trail of sparse handwritten communication between the defendant and the arresting officer. While the intent of what the officer was attempting to accomplish is clear, a review of such communications will quickly disclose that it was a woefully ineffective means of communication. Certainly these writings do not constitute real-time translation and certainly do not, in the words of the regulation, make aurally delivered materials available to individuals with hearing impairments.

The lamentable fact is that this is a problem which actually affords its own quick fix. While we believe that sign interpreters should be available at any government facility during business hours, given the nature of their business, it is inexcusable not to have such individuals available around the clock for law enforcement.

While we certainly hope that these preliminary suggestions will be considered in the appropriate circles, experience dictates that in all likelihood they will not. This raises the question as to what remedy, if any, the defense may have. While the concept of suppression may ultimately bear fruit, our attention has turned to CPL ' 170.30, the ubiquitous motion to dismiss. Of particular importance, this section provides:

' 170.30 Motion to dismiss information, simplified information, prosecutor's information or misdemeanor complaint

 

1. After arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that:

 

* * *

 


(f) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged;

 

 

In our opinion, the failure to comply with the Americans With Disabilities Act constitutes a legal impediment to conviction of the defendant for the offense charged. It is a proposition beyond reproach that effective communication at the scene of a DWI arrest is of imperative and dispositive importance. Further, the ability to understand directions is crucial in determining whether an individual possesses the mental and physical abilities to operate a motor vehicle as a reasonable and prudent driver (see, People v Cruz (1979) 48 NY2d 419, 423 NYS2d 625, 399 NE2d 513, app dismd 446 US 901, 64 L Ed 2d 254, 100 S Ct 1825). Given the fact that the determinations required to be made at the scene of a DWI arrest are a matter of nuance in which slight discrepancies in the manner in which a field sobriety test or other instruction are carried out spell the difference between passing and failing, the failure of the arresting troopers to immediately supply the defendant with a sign language interpreter raises the bar of the field sobriety testing in an impermissible manner so the motorist is unlawfully penalized for his or her disability.

Supreme Court Redefines Scope of Automobile Searches


A prosecution for Driving While Intoxicated almost always involves two elements, the operation of a motor vehicle and a search. A search? That's right, a search. All too often, courts lose sight of the fact that a sample of the motorist's breath, consensual or otherwise, is a search. This brings us to the topic of today's lead note. Since our daily staple is the search incident to the stop of a motor vehicle, we would be sorely remiss if we did not include the recent decision of the United States Supreme Court in Knowles v. Iowa, (No. 97-7597) CUSC, CLEd2dC, CSCtC, 1998 WL 840933 (Dec. 8, 1998). Although Knowles dealt principally with the seizure of drugs and drug paraphernalia (not always an uncommon occurrence), it also has much to say about two topics that we have reviewed of late: Pennsylvania v. Mimms, 434 US 106, 110, 98 SCt 330, 54 LEd2d 331 (1977) (per curiam), and peripherally the administration of a Preliminary Breath Test (PBT).

In Knowles, a motorist was stopped in Newton, Iowa, after having been clocked driving 43 miles per hour in a 25 miles per hour zone. The police officer proceeded to issue the motorist a traffic citation. Like New York law (see, Criminal Procedure Law ' 150.20[1]), Iowa Law permits the traffic officer to issue an appearance ticket in lieu of an arrest. Following issuance of the appearance ticket, the officer conducted a full search of the car. Under the driver's seat of the vehicle he found a bag of marijuana and a pipe for smoking marijuana. Knowles was then arrested and charged with violation of state laws dealing with controlled substances.

Before trial, Knowles moved to suppress the evidence obtained as a result of the search. He argued that the search could not be sustained under the search incident to arrest exception recognized in United States v. Robinson, 414 US 218, 94 SCt 467, 38 LEd2d 427 (1973), because he had not been placed under arrest. In Robinson, the Court, per Justice Rehnquist, held that where an officer had probable cause to arrest the defendant for operating a motor vehicle after revocation of his operator's permit and effected a full-custody arrest, that the search of the defendant's person without a search warrant and recovery from his person of a crumpled cigarette package containing heroin capsules was permissible. Upon the hearing held on the motion to suppress, the police officer conceded that he had neither Knowles' consent nor probable cause to conduct the search but maintained that he relied on Iowa Law dealing with such searches.


The trial court denied the motion to suppress and found Knowles guilty. The Supreme Court of Iowa, sitting en banc, affirmed by a divided vote. (569 N.W.2d 601 [Iowa 1997]). The majority upheld the constitutionality of the search under a bright-line search incident to citation exception to the Fourth Amendment's warrant requirement, reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest.

Reversing, the United States Supreme Court observed that Robinson, supra, delineated two historical rationales for the search incident to arrest exception to the warrant requirement. The first identified basis was the need to disarm a suspect in order to take him or her into custody. The second identified ground was the need to preserve evidence for later use at trial. Of great interest is that when Justice Rhenquist, writing for the full Court, turned to the facts of Knowles, he found that neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case. Before continuing, however, let's review where we've been.


In 5 NYDWI Bulletin 19, we opined that Pennsylvania v. Mimms, (1977) 434 US 106, 54 L Ed 2d 331, 98 S Ct 330, on remand 477 Pa 553, 385 A2d 334, does not support the proposition that an otherwise lawful stop of a motor vehicle will permit the motorist to be removed from his or her vehicle in each and every instance. Our feeling at that time was that to command a motorist from the vehicle either requires some indicia that the motorist presents a risk to the safety of the officer or a showing that removing the operator from the vehicle is a procedure which is routinely executed by the officer on each and every stop. By and large, this conclusion was drawn from a discussion of the facts in Mimms, as well as language contained in New York v. Class, 475 US 106, 106 SCt 960, 89 LEd2d 81, which was described by the Court as an opportunity to clarif[y] the scope of [the] holding in Mimms. Of note in Class was the reference to something more than objectively justifiable suspicion is necessary to justify the intrusion if the balance is to tip in favor of the legality of the governmental intrusion (475 US 106, 117, 106 SCt 960, 967‑475). Our opinion that a mere traffic arrest, without more, will not justify an arrest was further strengthened by Michigan v. Long, 463 US 1032, 103 SCt 3469. In Long, the Court emphasized the textual differences between a Mimms/Terry (Terry v. Ohio, (1968) 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868, 44 Ohio Ops 2d 383) protective search and those searches which are actually carried out for the acquisition and preservation of evidence:

A Terry search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime.... The sole justification of the search ... is the protection of police officers and others nearby .... 392 US, at 29, 88 SCt, at 1884. What we borrow now from Chimel v California, 395 US 752, 89 SCt 2034, 23 LEd2d 685 (1969) and Belton is merely the recognition that part of the reason to allow area searches incident to an arrest is that the arrestee, who may not himself be armed, may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity. This recognition applies as well in the Terry context. However, because the interest in collecting and preserving evidence is not present in the Terry context, we require that officers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry.

463 US 1032, 1050, 103 SCt 3469, 3481, n. 14.

 

Returning to Knowles, it seems that conclusions we drew in our last foray into this topic were correct. Knowles clearly stands for the proposition that a traffic stop, by itself, will not justify a full blown search of the motorist or his/her vehicle. For nearly a generation officer safety was the rubric under which courts routinely approved the extraction and search of a motorist following the stop for a routine traffic violation. Such notwithstanding, Justice Rhenquist, in language which seems surprisingly strong given the author, in several deft key strokes sent this widely held belief to a watery grave:


We have recognized that the first rationaleCofficer safetyCis A both legitimate and weighty, A Maryland v. Wilson, 519 U.S. 408, 412, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) ). The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest. In Robinson, we stated that a custodial arrest involves danger to an officer because of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station. 414 U.S., at 234-235, 94 S.Ct. 467. We recognized that [t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest. Id., at 234, n. 5, 94 S.Ct. 467. A routine traffic stop, on the other hand, is a relatively brief encounter and is more analogous to a so- called Terry stop . . . than to a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). See also Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (Where there is no formal arrest ... a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence).

 

The foregoing should not be taken as abolishing the protective search at the scene of a traffic stop, for clearly this is not the case. Carefully delimiting the scope of the activities that will be justified the Court observed:

[W]hile the concern for officer safety in this context may justify the minimal additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field- type search.

 

A careful reading of Knowles says precisely what we said in 5 NYDWI Bulletin 19, that while such a search is entirely permissible, an additional something, or what the court referred to in New York v. Class, as objectively justifiable suspicion is mandated. The real lesson of Knowles is that it left little wiggle room when considering what is required:

For example, they may order out of a vehicle both the driver, Mimms, supra, at 111, 98 S.Ct. 330, and any passengers, Wilson, supra, at 414, 117 S.Ct. 882; perform a patdown of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); conduct a Terry patdown of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

 


In terms of alcohol related operating offenses, it seems that we now have certain bright line rules. Officers may not, without reasonable suspicion, order the occupants of a vehicle from that vehicle and conduct a search of that person without reasonable suspicion that the motorist is armed and dangerous. Note what we just said here, armed and dangerous. With all due respect to those who view it otherwise, a motorist suspected of being intoxicated is not armed and dangerous. If you are so inclined to disagree, consider the following. A motorist is stopped for speeding on 87 North. The officer observes nothing out of the ordinary about her appearance. He nevertheless asks her to step from the vehicle and conducts a Terry type search. Clearly under Knowles, the foregoing is impermissible. Why? Because the officer lacked reasonable suspicion that [she] may be armed and dangerous.

Now let's alter the preceding scenario somewhat. The officer stops the motorist for speeding and smells alcohol emanating from the interior of the vehicle. Unsure of whether the source of the alcohol is the driver or the passenger, he asks her to alight from the vehicle for the administration of field sobriety tests including an AlcoSensorJ test to determine whether she has been drinking. Permissible? In our opinion, it is not. There was simply an insufficient basis upon which a court reviewing the matter could find the necessary reasonable suspicion to warrant the search. The counterpoint to the foregoing is that Knowles spoke to a search for weapons. The argument, as we see it, is that the mandated reasonable suspicion runs to whether the individual under detention possesses the means to form a threat to the health and safety of the officer not for the administration of field sobriety tests. The problem with this argument is that the threat posed by a gun toting motorist is extreme. If reasonable suspicion is required for a simple pat down, it would be absurd to suggest that detention of the motorist for a battery of tests taking ten minutes or longer could be done upon anything less.


Temperature Deviation Found Sufficient to Bar Suspension Pending Prosecution

In 5 NY DWI 25 we looked at the effect of temperature upon the admissibility of a breath test. Principally, we pointed out that if the simulator is not functioning at the correct 34 degrees centigrade, an adjustment can and should be made to determine whether the test adequately complies with 10 NYCRR ' 59.5. This regulation requires that:

(d) The result of an analysis of a suitable reference standard with an alcoholic content greater than 0.08 percent must agree with the reference standard value within the limits of plus or minus 0.01 percent weight per volume, or such limits as set by the commissioner. This analysis shall immediately precede or follow the analysis of the breath of the subject and shall be recorded.

(10 NYCRR ' 59.5(d) [emphasis supplied herein]).

 

In People v. Carter, the simulator temperature was reported to be 34.3 degrees centigrade. The value of the simulator test was reported to be a .09 BAC. Accordingly, and as shown in 5 NYDWI Bulletin 25, the true value of the simulator was below the administratively required 10% of the stated value. At arraignment, counsel objected to imposition of Vehicle and Traffic Law ' 1193(2)(e)(7) suspension pending prosecution upon the grounds that the test documents prima facie destroyed the mandated statutory basis for suspension. The Fairport Village Court thereafter reserved the issue upon the overnight submission of written argument. Following review and consideration of counsel's argument, the Court agreed and refused to suspend pending prosecution.

Since this is the first New York decision of which we are aware to discuss the effects of temperature upon the simulator and 10 NYCRR ' 59.5(d), it is reprinted in full herein.



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