Five DWI Cases Thrown Out After Judges Rule NYPD Set Up Illegal Checkpoints
QUEENS — A Queens judge tossed out a driving while intoxicated arrest after ruling that NYPD officers created an illegal checkpoint in order to force the driver to stop — the fifth such case to be overturned since 2012, DNAinfo New York has learned.
Queens Criminal Court Judge David M. Hawkins ruled last week to dismiss charges against a defendant caught in a 2011 drunken driving sting by NYPD Highway Patrol officers on the grounds that the officers set up an unconstitutional checkpoint on a small service road that connects the Long Island Expressway to the Grand Central Parkway in Flushing.
Drunken-driving checkpoints — in which officers close off a roadway to inspect occupants to see if they've been drinking — are closely monitored in order to protect drivers from any breach to their Fourth Amendment rights, which protect against unreasonable search and seizure, defense lawyers say.
But the NYPD officers insisted to Hawkins, and in four similar cases, that while drivers have to slow down on the road and in some instances come to a full stop, they did not create checkpoints.
The officers instead referred to the procedure as "step out" surveillance, in which officers stand on the side of the service road and wait for cars to drive past, according to court testimony.
NYPD Highway Patrol Unit 3 officers Keith Penney, Nicholas Konkowski and John Loukopoulos told judges under oath that they shined flashlights into cars and looked for "vehicle and traffic law violations," including broken tail lights and items hanging from a rearview mirror, according to court documents.
In the latest case to be tossed, the officers defended their arrest of a drunken driver about 11:45 p.m. Aug. 8, 2011, saying they pulled the man over after spotting objects hanging from the rearview mirror of his 1997 Mercury. The driver's name is being withheld by DNAinfo because the charges were dropped.
When the defendant couldn't produce a driver's license and officers said his breath smelled of alcohol, they asked him to take a Breathalyzer, according to court documents. The driver refused and was brought to the 112th Precinct, where he told officers he had consumed a Heineken and a shot, according to documents.
Judge Hawkins disagreed with the officers' description of the tactic, saying they had set up an illegal checkpoint — rendering the charges invalid.
Queens Criminal Court Judge Mary O'Donohue tossed out a similar DWI arrest in February 2013, saying the 2011 stop constituted an illegal checkpoint and the evidence was not valid, court documents show.
Queens Criminal Court Judge Stephanie Zaro ruled similarly in July 2012, when she tossed out another DWI arrest the same Highway Patrol officers made in October 2011.
And Queens Criminal Court Judge Michael Yavinsky did the same on June 14, 2012, when he found the NYPD Highway Patrol officers acted inappropriately when they arrested a driver on the same service road in May 2011.
An email to the NYPD was not immediately returned. The Queens District Attorney's office declined to comment.
Nicholas Frayn, a lawyer with The Legal Aid Society in Queens, which has pursued all five of the cases that were overturned, said his defense team has dealt with an estimated 150 NYPD arrests at that service road since 2009.
Frayn said he saw the pattern after he and a colleague discovered they both had clients who were picked up in the same way for DWI, at the same location.
"A lot of these cases had the same predicate — a violation of having an object hanging from your rearview mirror," Frayn said. "We realized something's up. Clients were telling us the same thing, that they were stopped for a checkpoint."
Frayn said police officers are obligated to clearly mark checkpoints — markings his clients said were not present during their arrests.
"It was a method of policing that had all of the problems that the conditions placed upon operating checkpoints are supposed to overcome," Frayn said. "It was unlimited officer discretion."
Making matters worse, Frayn said, was that Highway Patrol Officer Konkowski was reprimanded by the NYPD's Internal Affairs Bureau for letting an alleged drunk driver he caught in a "step out inspection" in Queens go free because the driver was a police officer, according to IAB documents shared with DNAinfo.
The reprimand, dated July 11, 2013, said Konkowski saw the officer driving erratically but "failed to conduct an investigation" to see if the driver was under the influence of alcohol or drugs during a stop on Jan. 2, 2013.
That police officer behind the wheel later struck a car and left the scene of the accident before his car stalled a few blocks away, according to the investigation.
The officer was later arrested and charged with DWI.