Attorney Greenberg Wins Dwi Hearing Without Saying One Word

Evidence Of Refusal Of Breath Test Suppressed: Attorney Greenberg Wins Hearing Without Saying One Word
A good lawyer knows the law and how to cross-examine a witness. A great lawyer knows when to say nothing and rest on the weakness of the evidence presented by the District Attorney. That is exactly what happened when Attorney Todd Greenberg did not cross-examine an Arresting Officer in a Drunk Driving case during Pre-Trial Hearings. The Defendant was charged with Driving While Intoxicated as a Misdemeanor. The Defendant refused to take to Breath Test which would measure his blood/alcohol content and the District Attorney wanted to use the fact of that Refusal as evidence at the trial. A Pre-Trial Hearing was granted and the Police Officer testified that he actually observed the Defendant in a black Toyota make a u-turn from where he was parked thereby causing an accident. The Police Officer then testified that the Defendant’s eyes were blood-shot and watery, that the Defendant had alcohol on his breathe and that the Defendant “refused the blood alcohol test”. Most significantly, at no time was testimony presented to the Court of what the Defendant actually stated in response to the Police Officer’s request to take the test. At that point, the record consisted solely of the Police Officer’s conclusion that the Defendant refused to take the test without any facts whatsoever as to what the Defendant did or said for the Court to draw that conclusion. Instead of cross-examining the Police Officer which would give the Police Officer the opportunity to be more specific, Attorney Greenberg asked for a recess, spoke to his client, and advised the client that there should be no further questions of this Police Officer. In a Memorandum of Law that was prepared after the Hearing, Attorney Greenberg pointed out to the Court that the Hearing record was devoid of any testimony whatsoever as to how, or even if, the Defendant refused to take the test. The Police Officer’s testimony failed to establish the manner or words with which the Defendant allegedly refused to take the chemical test.

In its Decision and Order, the Honorable Robert M. Raciti, Judge of the Criminal Court, Queens County, noted that “There was no cross-examination” and then found that “…there was no evidence in the record concerning how the Defendant is alleged to have manifested his refusal…”. The Court stated that “The People’s witnesses must testify as to facts rather than conclusions, in order for the People to meet their burden.” After the suppression of this important evidence on June 17, 2009, the Defendant was allowed to plead guilty to Driving While Impaired, a non-criminal offense. Extensive knowledge of the law by the Attorney’s at Addabbo & Greenberg allowed their client to avoid a criminal conviction for Driving While Intoxicated.

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