Wednesday, April 29, 2009

The Geeks Shall Inherit the Earth

I am a Geek and proud of it. I love Yoda, Star Trek, Star Wars, non-fiction books (ie. philosophy, psychology, sociology, relationships, etc.), studying ancient cultures, watching documentaries about bridges, canals, buildings, cities, ... well you get the picture. I know absolutely nothing about players or teams. I have no interest in watching any sporting events, like Monday Night Football.

What I am is a Geek who is obsessed with learning and understanding everything about the things that interest and fascinate me. My parents watched in amazement as I took apart radios and my toy cars. I wanted to know how things worked. When I was a teen I fell in love with magic and photography. I spent hours upon hours practicing magic, reading magic books, attending magic conventions, and performing magic shows. By the age of fourteen I invented a trick, and had it published by one of the largest magic dealers in the world, Tannens of NYC. I had a darkroom in my basement and would takes hundreds of pictures of everything large and small. I would spend days developing, enlarging, and creating photographs of icicles in trees. My older sisters said I was too intense. They thought my obsessive behavior was a bad thing.

I was not popular or cool. I was a short, curly haired, little guy, with braces who loved to read. A recipe for getting beaten up, especially in Brooklyn. Well that little boy grew into a highly educated man. But I am still am obsessed man, with a love for the law. I awake each day with an inspiration to improve my practice in the area of DWI criminal defense. I want to know all the details of the inner workings of the breath machine. I want to pour over every word and every box in each piece of paper seeking creative defenses. That burning desire to know about how things work has been focused, directed, and transformed. Life mastery and practice mastery are at the forefront of my mind. People do not really change who they are inside. Now, I am merely a DWI Geek.

Tuesday, April 28, 2009

Preparation Meets Opportunity

"You don't run twenty-six miles at five minutes a mile on good looks and a secret recipe."

-Frank Shorter

My wife has run four marathons. I have watched her train, and prepare for all of them. Months of running hundreds of miles to be fit and ready for one event. Her success at running came with a price. I am certain some mornings she did not bound out of bed at 3:00am or 4:00am full of enthusiasm to do the days mileage. In fact, she had plenty of struggles and questions. Such as why am I doing this? and why am I doing this again? I can remember one race in particular. It was the Long Island Marathon and the temperature was well over 90 degrees. The kids and I stood in the shade and watched as seasoned runners were dropping out. Firemen were dousing the runners with water. Yet my wife because she is a finisher, in spite of tremendous pain, and with tears in her eyes completed that race. She has grown as a person from each of these trials. Trials of her person, her resilence, and of her determination. I am proud of the person she is, not because of the successes she has achieved, but because of the obstacles she has surmounted to accomplish them.

"I will prepare and some day my chance will come." Abraham Lincoln

"Spectacular achievement is always preceded by spectacular preparation." Robert H. Schuller

They say "luck favors those who are prepared." I do not know how many times people have called me lucky. For one reason or another almost as if blindness and ignorance were some communicable disease process, friends and colleagues have used that term. Everything of value in life took hard work. My marriage, my close friendships, my children, my professional education, and my practice successes all came as a result of choosing to invest my time, my energy, and my money. I took out many tens of thousands in student loans (a virtual loan alphabet), and of course, practice loans. They say being broke is the worst thing. I disagree, being deep in debt (as I say below zero) is far worse. But it is a motivator. That said...

I believe that you make your own luck. No one has to tell the doctor, lawyer, CPA, or any other professional man or woman what it takes to earn a license. Yes I say earn a license because as you and I know they do not hand them out. But I also believe (yeah I have alot of strong convictions) that what you do with that license (merely a permission btw) is up to the individual. For some people learning ends at graduation. I naively thought after getting my first professional license (as a Chiropractic Physician), I was done, no more tests, no more studying, no more working hard to be graded, and scored. I was wrong. The real school is on the battleground of day to day practice. How good you become at what you do is always up to to you!

I am a great believer in luck, and I find the harder I work, the more I have of it.

-Thomas Jefferson

When I returned to law school at 33 years old to begin yet another education I used all I had learned from before. Success leaves clues. I prepared, studied, and passed three bar exams the exact same way. Failing was never an option for me.

Yes the world is a changing place, and many challenges lie ahead for all of us, but there will always be those that remain at the top of their fields. You can be the best in your area by studying, and investing in yourself. If you wanted to be the best plumber, there are plumbing books, seminars, and training programs. If you want to be the at the top of any field, resources are in abundance if you will only seek them out.

I am a firm believer in lifetime learning. My most valuable resource is my library. My collection of DWI defense and trial law books is extensive and growing. If you want to know someone real well, look at two things: 1. the books they read, and 2. the people they hang out with. I am a member of the NCDD (National College of DUI Defense). This summer I'm excited to be attending the NCDD Seminar at Harvard Law School.

The National College for DUI Defense, Inc. (NCDD) is a professional, non-profit corporation dedicated to the improvement of the criminal defense bar, and to the dissemination of information to the public about DUI Defense Law as a specialty area of law practice.

What you surround yourself with, what you invest in, and what you immerse your brain into, says alot about you as a person. Those that wile away the hours doing nothing productive may find that all that inactivity has an expensive price.

I could not prepare a case for trial without hours of reading, researching, and preparing. I prepared over 50 pages of cross examination for my last trial. I could never expect to remember all those questions. (btw We won!)

Success at anything of importance takes that diligence and focus. In every field, from criminal defense law to building a house. Winning, and being "lucky" at anything worthwhile begins with a goal, a strategy, and a well written, and detailed plan of action. Your follow through after that ensures your chances for a successful outcome.

Monday, April 27, 2009

New York DWI Defense and Google Fights

I love the internet. My kids are constantly pushing the online envelope. Between my son posting Utube videos, or my daughter proving me wrong with Wikipedia, we are a family flowing with, and creating media. Recently my other son (yah I got four kids) started an argument with my wife over who was more popular Kelly Clarkson or Carrie Underwood. It led to my son telling my wife to have a "Google Fight" ... I said, "what?"... so he showed us (how clever of Google)that he was right about Kelly. Anyway, it is an incredible tool, and I believe being able to access and share information instantly is changing the world we live in.

My son "proving" us wrong with the Google Fight brings to mind levels of legal proof. We do not have the ease or luxury of determining guilt or innocence via the internet (thank God!!).

People love to talk about guilt and innocence. Who is guilty and who is not guilty? But what are they really discussing? Are they discussing legal guilt or factual guilt? I work in the world of legal guilt. Whether someone did the crime is a big unknown for all of us? I was not there, we do not have a time machine, and honestly it does not matter to the legal system. In the legal world we deal in levels of legal proof. That is what the Government (the prosecutors) need to provide, to prove their case. Yeah, they have "the Burden of Proof."

There are different levels assigned to different situations, and types/areas of law. Under the Fourth Amendment (in our Bill of Rights) of the Constitution, we are to be Free from Unreasonable Searches and Seizures.

So the First level of proof is did the police have a "Reasonable Suspicion" to make a STOP.
That is enough evidence to stop a car. A moving violation or a non moving equipment violation will generally qualify here. BTW A stop is a seizure of your person. Reasonable suspicion comes from the case of Ohio v. Terry. A short rendition of the facts: A Police Sgt. of 25 years experience, who patrols the same neighborhood for years, notices people who in his opinion do not belong there (they happen to be African Americans in a white area but they could have been Asian Americans in a Mexican area). He sees them going up and down the block of a group of stores. He notices them stopping, and looking into the front of one particular store.

In the Supreme Court's opinion this was enough PROOF to stop these people, investigate (ask questions), and frisk them for weapons.

Second level of Proof is called "Probable Cause." It is enough evidence to make an arrest. This is enough evidence to strip search your wife or girlfriend (just so it hits close to home). It means the Police believe a crime is either happening or about to happen. Also referred to as Reasonable Cause, would it be reasonable to believe based upon the facts presented that a crime was happening. In the DWI context this is your odor of alcohol, bad driving pattern, failure at Field Sobriety Exercises, open bottle in the car, etc.

Third level of Proof is called "Preponderance of the Evidence." This is a civil standard (not a criminal standard) and is used to give money from one person or company to someone else. It is a little bit more than 50%. The scales are just tipping abit to one side. This is how O.J. Simpson can lose at the Civil Trial level but win (be found Not Guilty Legally) at the Criminal Trial level.

Fourth level of Proof is called "Substantial Evidence." This is reserved for license issues which are called Administrative Hearings. Professional licenses (which are considered legally as property) would fall into this category. So an instance of Professional Misconduct against a professional license of a CPA, Nurse, Podiatrist, etc. would be assessed using this standard. Some states use a little higher standard called, "Clear and Convincing Evidence."

Fifth level of Proof is "Clear and Convincing Evidence." This is enough evidence to commit someone to a mental institution or take away their child (declare them an unfit parent). Giving any of these levels a specific number is almost impossible, but we know that it is more than 50% certainty but something less than 100% certainty. Also, proof of evidence something more than a Preponderance Standard but less than BRD (Beyond a Reasonable Doubt).

Sixth level of Proof is called "Proof Beyond a Reasonable Doubt." It is truly the foundation of our country's rich history, and liberation. It is the highest standard of proof. It is the level of proof required to declare someone is guilty of a crime. They are now and forever a criminal. New York State does not have an expungement statute so the black mark stays on their permanent record forever. It is a higher level than Clear and Convincing Evidence but less than 100% certainty. Where that might fall is up to a Jury or in the case of a Bench Trial (a non-jury Trial) a Judge.

So there you have it, no Google Fight is going to resolve legal guilt or legal innocence. At least not yet anyway. So we are still left to doing things the old fashioned way with Judges and Juries, and criminal defense lawyers protecting the accused in Court of Laws.

Sunday, April 26, 2009

Ducks, Probation, and New York DWI

As I sit here alone with my coffee on a lovely Sunday morning I await the Ninth Annual Cascadilla Duck Race. Every year this marks for me and my family the true beginning of Summer in Ithaca. If you have never been to the event it is both fun, and funny. It is held in Fall Creek (where I live and work) and what I feel is one of the most beautiful parts of Ithaca. The day's events (Quacktivities) include a 5k race, food, games for kids, and the "piece de la resistance" ... a race where thousands (3,600 actually) of little cute bright yellow rubber ducks go down over the Cascadilla Falls and bob down the creek. Everyone races after the ducks (participants buy ducks to benefit the 4-H)and owners of the winning ducks (they all have numbers) win fabulous prizes. First prize is a "nest egg" of $500.00.

When I am not watching ducks I am pondering over New York DWI law, studying the DataMaster Breath test machine manual, or preparing defenses. So often people think the worst part of a DWI conviction is a potential jail sentence, which by the way is unlikely with most first time DWIs barring serious injuries or other offsetting circumstances.

I feel that a term of probation would for many people create a very difficult situation. For those adults that value freedom over their own lives and behaviors, having a probation officer supervise and dictate terms and conditions of your lifestyle would not be pleasant or welcome.

Probation usually entails:

Reporting to a probation officer (frequency is dependent upon complaince with conditions)
NO alcohol consumption, NO alcohol in your home, you can not patronize clubs, bars, or taverns that serve alcohol, NO drugs, you must obtain permission to leave the state, you must submit to regular drug screen and/or tests, supervision of mental and drug and/or alcohol counseling and treatment, and you must obtain permission from Probation to get back your full driving privileges (driver's license).

A usual Probation term that the prosecution asks for on a first time DWI is for a 3 year period.
Having a supervisor (probation officer) over see your life is onerous. I had one client that had to submit to a liver function blood test because the Probation department thought he was drinking on the weekends and coming up clean on their tests on Mondays. I thought this was unfair considering that many other factors could cause his liver enzymes to come up high not just the consumption of alcohol. But that is Probation, you lose alot of your rights. I had another client that wanted to leave Tompkins County for a better job opportunity in NJ. Probation would not give him permission to go because they "suspected" drug use.

I am in the protection business, kinda like the mafia, but in a good and legal way. I do not like probation for those who do not need it. I have had the government and their lawyers (the prosecutors) want a sentence to include probation on some of my college educated (professionals, masters degrees, and Phds), clean cut, and hard working clients who merely had a blip on the radar with their DWI arrests. This I feel is an unnecessary and harsh punishment. There are some repeat DWI offenders that have benefited from a term of probation (versus going to jail), and in those situations probation is not a bad option.

Anyway, off to the ducks and the day.

Thursday, April 23, 2009

Going to Canada and New York DWI-DWAI

I love to visit Toronto, especially in the summer months. To us Upstate New Yorkers, Canada is our closest foreign neighbor, and the exchange rates of late have been incredible. I recently went on a Niagara Falls/Toronto weekend with my wife. The package with a jacuzzi suite (with the biggest bed we have ever seen) overlooking the falls, dinner, 2 drinks each night, and breakfast was less than a weekend at the Super 8 in my little Ithaca. Go figure. Which brings me to our special relationship with Ontario and Quebec.

New York State has a very tight agreement with Canada legally. We have an open exchange of information on DMV points (Canada tickets and points count on your NYS driving record and vice versa) which seems weird because NYS DMV does not count points from moving violations in other states. In addition, if you get a DWI or DWAI conviction in the states Canada will not allow you to enter without special permission. In fact, any misdemeanor (or anything considered a crime in Canada) will bar entry. You have options, but neither is particularly exciting, and most definitely onerous.

So you have TWO OPTIONS after a New York DWI or DWAI conviction:

OPTION ONE: Apply for an Approval of Rehabilitation at the Canadian Consulate or Embassy

You must show you are living a clean and stable life but unfortunately you can only apply after 5 years have passed since the date sentence was imposed and/or your period of probation has ended.

OPTION TWO: Obtain a Temporary Resident Permit, Go to:

You will need: 2 passport photos, a criminal clearance certificate, 3 letters of reference

NOTE: You will need to obtain a criminal clearance certificate from ALL police authorities from ALL countries you have lived since age 18.

To obtain a criminal clearance certificate in the United States:

1. You will need a set of fingerprints (go to a local police department or a regional DMV office)
2. A letter of request for a criminal background check with a check (go to FBI website for latest rates)
3. Send to:

FBI/Criminal Justice Information Services Division
Attn: Records Request
1000 Custer Hollow Road
Clarksburg, WV 26306

Canada does not automatically grant Temporary Resident Permits to anyone with a DWI or DWAI conviction. They (Canada) will weigh 4 main factors:

1. If the applicant has a reason to visit Canada beyond pleasure pursuits. ie. Relatives who reside in Canada that may be ill.
2. If the applicant has property interests in Canada or a business relationship in Canada
3. The nature of the applicant's criminal offense in the States and it's severity.
4. The time that has passed since the offense was committed.

So I caution all my clients (in advance) to be aware and mindful of the consequences of New York State DWI and DWAI convictions in regards to visiting beautiful Canada.

Tuesday, April 21, 2009

The Value of Being a Learner vs. Learned

I have been immersing myself in Success philosophy since 1986. I have a deep and unabiding conviction that what we talk about, study about, think about, learn about, write about, read about, and act on we will eventually bring about. Thats alot of "abouts" but the point is a focus and an inspiration will attract dramatic results and manifestation. I love the law. I find it challenging, stimulating, exciting, and inspiring. I meet tons of lawyers (as well as other people) that hate what they do, they hate practice. Sometime long ago they traded inspiration for desperation. How sad to wake up each day and dislike your life and your life's service.

I can remember when I had my first "happy tear" about the law ... it was in Evidence class and the professor was inspired that day. He explained how the law that had evolved and was developed through the centuries was so organized. He went on to remark about it's structure, it's perfect balance, the symmetry of ideas, and that it (democracy) must have come through these leaders of Athens and then the United States from a higher source. To me, man-made (or woman-made) democratic law was a precious gift from God.

He went on to explain how we as a society could not live (or function) without rules of conduct, rules for business, and rules for relationships. Justice and fairness can be difficult at times but we are far beyond eye for an eye and a tooth for a tooth code. Which finally brings me to today's blog idea, the 1970s were considered a time of drastic change. Well can you imagine comparing the 70s to today. I believe that people can not stand still in times of change. If you are not striving uphill (growing) you are rolling down it (dying).

"One thing is clear: We don't have the option of turning away from the future.

No one gets to vote on whether technology is going to change our lives"

Bill Gates "In the Road Ahead"

"In times of change the learners will inherit the earth,
while the learned find themselves
beautifully equipped
to deal with a world
that no longer exists"

Eric Hoffer "True Believer"

I believe it is more important to be a learner. To be constantly reading, studying, perfecting, and growing as a person and practitioner. I meet many learned people. They have been doing their job for 20, 30, or 40 years but they are learned but not learners. There is a distinct difference. They have not embraced technology. They are still using the yellow pages. I don't buy a book, see a movie, or make a purchase without reading reviews and investigating. In my house, we have 6 computers (Macs and PCs). My wife and I are a comedy show at times with dueling PCs on the couch while watching TV.

I can't trust those professionals without a computer on their desk. I can't relate to those who don't text or email. 2009 is all about connection. It is the age of information and sharing. I give my clients all my information. I continually communicate with DWI defense lawyers throughout the country. We compare notes, ideas, strategies, and cases. I tell my DWI clients if you can't find me, I must be dead. I just took a vacation in South America this past month, and even in some less developed countries my iphone (btw I love my iphone) was still keeping me up to date and connected. I invest in myself through books and seminars. I invest my time in reading, learning, and then sharing. I believe that every student must also be a teacher and every teacher must be a student.

How well must you know a subject to be able to teach it? That is true mastery of the material. To anyone who values learning mastery is priceless. So my advice to those learning...

"if you are green you are growing, if you are ripe you rot."

Sunday, April 19, 2009

Ithaca Lawyer Larry Newman: Why I Choose to Practice DWI Defense?

Often I am asked why I do DWI Defense or the more common question, "how do you defend "those" people." As if "those" people were some pariah to society.

Well to begin, my great grandfather brought my grandmother here from Russia in 1906 to escape the religious persecution and the pograms of destruction. He had hopes of a better life for his family (seven children), and the opportunities that democracy and freedom would afford them. I am the first generation or first wave, along with my sisters of college educated Newmans. I was raised to believe in this country, the American dream, and the rights provided to us through the bill of rights. My father brought me to Washington DC at a young age and often would tell me to appreciate what we have in a government that even with all it's problems (at that time Watergate) was still the best the world had to offer. He would remark no one was risking life and limb to get into any other country but ours.

"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it." -- Thomas Paine: The American Crisis, No. 4, 1777.

So to the original questions... I practice defense law because I believe the government and the government's lawyers (prosecutors) need to be, must be challenged. That the Bill of Rights is not some ancient document but a living, breathing, and dynamic protection for all of us. That not one innocent person should ever go to jail or be convicted of a crime that they have not committed. That the blessings of a Free nation must be safeguarded at all times.

"Eternal vigilance is the price of liberty." -- Wendell Phillips, (1811-1884), abolitionist, orator and columnist for The Liberator, in a speech before the Massachusetts Antislavery Society in 1852, according to The Dictionary of Quotations edited by Bergen Evans.

I specifically love to practice DWI Defense because it is the only crime of it's type where a person can be convicted without damages to property or people but merely the POTENTIAL for damage. It is the only crime of it's type where the complete truth is the best defense. I believe that the rights we are afforded under the Constitution are not for some special people but for all people.

Dr. Lawrence Newman
Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850


Saturday, April 18, 2009

College Applications, DWAI Violations, and DWI Misdemeanors

Sometimes people who blog tell me they don't know what to write. If you have any interests, passions, and inspirations I find it hard to believe you would have nothing to express and share. Suffice it to say my greatest strength and my greatest weakness are the same. I love to speak and write. Thank God I'm a criminal defense lawyer. My wife tells me I need to work on the listening part sometimes. On other occasions I am accused of listening but not hearing what she is saying. Yeah I can't play the defense lawyer card at home. She warned me years ago you may win the fight or argument but don't expect me to be there for you later. She is a nice balancer and one of my goals in life is to keep her temporarily happy. I am a realist but I know given her continual demands of my time and attention to her and our four children I could never keep her happy all the time. In fact, pissing her off is something which comes naturally for me. Anyway the golden rule (there are other laws besides man or woman-made ones) of "Happy Wife Happy Life" is as true today as it was when I learned it over twenty years ago from a close friend. Which leads me to helping my daughter and thus keeping my wife happy...

My daughter is planning on changing colleges and once again going through the application process. She naturally comes to me for guidance in answering questions, especially ones that might reflect upon her admission to college. In one of her applications an interesting question came up.

Have you ever had a violation of law where the fine was over $200.00?

I have never seen an employment or college application ask about violations. For obvious reasons who wants to hear of speeding tickets or other moving violations. So this was a first for 2009. Usually they ask about crimes. A crime being something punishable by a jail sentence.

Misdemeanor - A specific type of offense for which a person may be sentenced to more than 15 days but not more than one year in jail.

Criminal convictions for misdemeanors are something people look to avoid for exactly this reason. Now it seems that Colleges are giving more scrutiny to their applicants.

In New York a DWAI (1192 (1)) Driving While Ability Impaired is classified as a traffic
infraction but in an unusual case it is punishable not only by a fine, but by imprisonment in a penitentiary or county jail for a term of not more than 15 days. If a motorist has a second DWAI within 5 years the fine goes up as well but it is still a traffic infraction. For a third DWAI it becomes a Crime.

Traffic infraction - A violation of the New York State Vehicle and Traffic Law that has not been classified a misdemeanor or felony. It is considered a petty offense.

So in the normal course of events it would not come up or be revealed or have necessity to be exposed on an application for employment or School. Now it seems the rules of the game are shifting. FYI the fines for a DWAI are in the $300-$500 range so it would require an affirmative response to the question previously posted.

Ithaca Lawyer Professional Licenses and New York DWI

Yesterday I did a talk/powerpoint for a group of surgical nurses on Professional Discipline. New York like many states these days has an extensive list of behaviors both on and off the job that are considered professional misconduct. Any instances of this misconduct trigger an investigation and potential hearing concerning your licensure as a professional within the state. The list of licenses includes: Pharmacists, Nurses, Massage Therapists, and many others. NYS Board of Regents monitors these professions. See list here:

Under NYS Education Law 6509 (5) (a) (1), any violation of law is professional misconduct. Any DWI or other misdemeanor would be considered a violation and therefore an instance of professional misconduct. For further reading under New York State Education
§ 6530 there are 48 Definitions of Professional Misconduct.

I discussed with the nurses a few main points:

1. The State's burden of proof to suspend, revoke, or censure a professional license is far less than the criminal standard of "Beyond a Reasonable Doubt." It is in fact less than the "Clear and Convincing" standard required to take someone's kids or declare someone mentally incompetent. It is called, "substantial evidence" which is something a little higher than the civil standard for money damges, "Preponderance of the Evidence" or the little more than 50%. An excellent and interesting New York case highlighting the burden administratively is Shuman v. New York State Racing and Wagering Board:

2. They should never talk to an investigator, the police, or the prosecutor concerning any allegations of misconduct without an attorney present. Anything they say will be used against them. Even if they are innocent they stand nothing to gain by talking, and everything to lose. You know the line in the Miranda warnings that says, "Can be used against you" well guess what under the Federal Rules of Evidence it can not be used "for you" so why talk.

3. Someone with a Professional license can be facing three different legal problems and three different standards of proof with an instance of misconduct. A nurse allegedly (I love that word)causes an accident that involves damage to people and property. She has alcohol on her breath and is charged with a Common Law NYS Section 1192 (3) DWI even though she refuses the Breath Test. Now she has criminal charges with the prosecutor facing jail and fines, a potential civil lawsuit where she is facing a verdict for people and property damages, and a potential nurse licensure suspension for the DWI. Now remember, all three have different burdens of proof, and all three will require legal counsel and advisement. NOTE: Common Law NY Driving While Intoxicated 1192 (3) is proof of intoxication based upon the police officer's observations, road side testing (Field Sobriety Tests), and notes.

Those with professional licensure should be mindful of the minefield that awaits them if they accused of a crime or an act of misconduct. My million dollar advice is never say anything to anyone without first counseling with a lawyer.

Friday, April 17, 2009

How to Deal with The Grief of a DWI

I have counseled and represented clients as an attorney for eleven years, and prior to that practiced as a Chiropractic Physician for another ten years. Over all this time I have noticed a parallel pattern between the stages of grief with those patients with physical illness, and those people who have been charged with the crime of DWI.

In college, I took a course called, "Death and Dying," it highlighted the work of Elizabeth Kubler-Ross. In Ross' book by the same name she outlined five distinct stages of grief:

The five stages of grief Kubler-Ross identified are as follows:

1. Denial (this isn't happening to me!)
2. Anger (why is this happening to me?)
3. Bargaining (I promise I'll be a better person if...)
4. Depression (I don't care anymore)
5. Acceptance (I'm ready for whatever comes)

Clients and patients rarely go through these five stages once but multiple times over the course of their treatment or representation. Sometimes I have seen clients cycle through all five stages in one day. I believe that part of my job as their lawyer is to help my DWI clients come to Acceptance of their situation, and be ready for whatever comes.

As they say "it is what it is." We must deal with the cards we are dealt. We can not undo the past or feel guilt over it. The emotions of anger, denial, and depression will lock you in self destruct mode. Beating yourself up will never allow you to move forward, and you most definitely want to move forward with your life. I have witnessed way too many people carry the heavy baggage of guilt around with them over something that occurred years in the past. Wallowing in self pity can never help you, and only leads to fearful thoughts of a dark future.

Acceptance brings power because it means you understand your options. Choices and options mean power and direction. It means we have analyzed and discussed the strengths and weaknesses of your criminal case, and your unique situation. Knowing what is potentially coming or possible ie. consequences, collateral issues, penalties, DMV issues, restrictions, and conditions allows you to prepare yourself mentally.

The best defense can only come to those who are "ready" for whatever comes. What are your best options? Your choices will be highly dependent upon where you are, and where you are going. Not everyone wants to go to trial, not everyone has the same risk tolerance, and not everyone has the same goals. Becoming proactive, and taking action is always the best course.

Perceptions of your situation will change over time, recognize this. Put everything in context. Nothing is in a vacuum. Every case and situation is relative to another. I have been privileged over a twenty three year period to see the entire spectrum of human problems, and the eventual healing that comes over the course of time and with action. Acceptance was always the healthiest, saniest, and most helpful frame of mind. Acceptance brings empowerment because you can see the bigger picture. It means your head is not clouded by anger, depression, or guilt. With acceptance your mind is now clear enough to make the best decisions. Fear of the unknown is cast out by the light of acceptance and that always comes with a sense of knowing.

Wednesday, April 15, 2009

Ithaca Cortland DWI Lawyer Explains The Anatomy of H.O.P.E.

Don't Lose HOPE with your DWI Case

The leaving of the long and bitter Ithaca winter, and of the seeming unending dismality (my word) of the season finally is bringing forth flowers, farmer's markets, and brighter days to the Southern Tier. Doctors, Clergy, and lawyers (you can start the jokes anytime now) all offer HOPE.

For as much as the Laws change, the times change, and people change, some things never change.

"I truly believe that Every single DWI case contains H.O.P.E." 

Hope is in discovering the truth, and all the weaknesses in the prosecution's case.

This brings HOPE to every single DWI case.

Hopelessness is a feeling that nothing will get better in the future. It is a sign of utter futility and giving up. To me it is the saddest, and most despondent of emotions. The truth of H.O.P.E is:

H: The Human Body (your body and it's physiology) is one of a kind, variable, and special. It is never average or normal or the same as everyone else's. How you performed on any machine or any test is based on this dynamic unique body. How your eyes, feet, balance, and coordination function are as different as your fingerprints.

O: Ommissions are as important as commissions. What was left out of the Police report? Fill in the details of everything you did right that night. Did you understand the police officer's Instructions? Could you follow them? Did you follow them? Did you act, and behave appropriately based on those directions? The truth is you did alot right. How much or how little of what you did right was recorded is another story. Proof of intoxication requires proving mental and physical incapacity. Where were you capable? Could you walk unassisted? Could you talk, and be understood? Were your verbal repsonses appropriate for the questions asked?

P: Patterns of Driving are another crucial component of HOPE. What were you stopped for? Was it a failure to use a turn signal? Was it an expired inspection? Was it speeding? In and of themselves, none of these DRIVING PATTERNS indicate an intoxicated driver. Did you pull over safely, responsibly, and correctly when the emergency lights flashed? All good driving patterns before the stop demonstrate "mental and physical capacity to drive as a reasonably prudent driver." People v. Cruz (48 NY2d 419, 423 NYS2d 625).

E: Evidence comes from two main sources in any DWI case, the Breath Machine (the Breathalyzer) and the Police Officer. That is it. The breath machine does not measure alcohol. It measures methyl groups, and adds them all together. There are hundreds of compounds, slovents, paints, and substances that contain the methyl group. The Methyl group also has a varying half life. You might have used paint or paint thinner last week or last month, and still have remnants in your system. Machines have flaws. Machines have limitations. This machine has a Range of Error of 40%. Think about that. Finding people guilty of a crime just based upon a Machine is a dangerous and false use of science.

So in the Anatomy of H.O.P.E. recognize "the truth will never change" and my job is seeking the truth in the evidence being defended.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.


Monday, April 13, 2009

Ithaca DWI Lawyer Questions Police Assumptions and YOUR BAC Number

Police and the Government Love to Just Assume

I get DWI phone calls all the time asking me about the breathalyzer, and what "the number" really means. The BAC (Blood Alcohol Concentration) number that gets spit out of "the machine" is merely a number in space until we have context. Context refers to the circumstances regarding the individual tested. Are we are exactly the same?

Are YOU an Average Person?

The "average" person in the world is a 28 year old, right handed, Chinese man.

There are a lot of assumptions that need to be made to say that the BAC number is an accurate measurement of the person's level of intoxication at the time of vehicle operation. Let us begin...

1. Assuming that the accused did not burp, belch, or regurgitate any stomach contents?
2. Assuming that the accused was "observed" for 20 minutes prior to testing to ensure this?
3. Assuming that the accused BAC was falling, so a lower rating at the station than when driving?
4. Assuming that the accused is "normal"... 98.6, BP of 120/80, no infirmities, diseases, meds?
5. Assuming a "normal" metabolism for an average individual because the machine is set at a ratio (via software) of 2100 ml of breath to 1 ml of blood alcohol?
6. Assuming an accurate breath sample from the deep lung tissues, no hyper ventilation or hypoventilation?
7. Assuming an accurate and reliable machine that has been checked every six months?
8. Assuming an accurate machine temperature?
9. Assuming no RFI (Radio Frequency Interference) , ie. police walkie talkies in the room?
10. Assuming a currently licensed BTO (Breath Test Operator)?
11. Assuming that the number is consistent with what the accused ate that day and drank?
12. Assuming that the number is consistent with the drinking pattern, quantity and quality of alcohol, and times consumed?

So what can a "good" lawyer do? A good lawyer can ask questions. A prepared lawyer can discover, uncover, and investigate the facts, and then dissect them. Does everything jive?
Does the story seem plausible? What needs to be challenged? There are many stages, and parts to a DWI case, and you never know when you begin to dig what can be found.

Our job as defense attorneys is to challenge the government's case, to put it to the test. Into the crucible of fire, to remove any impurities, and to allow stand only that which is irrefutable.

Too often we ASSUME too much, and as I learned as a boy growing up in the 1970s "IF" we ASSUME, we make an ASS of U and ME.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.