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

Lucky Ithaca Lawyer Preparation Meets Opportunity

Seneca Said Luck equals Preparation meeting opportunity
I'm currently reading a book about how to make luck. It's called How Luck Happens by Janice Murphy. Interestingly many of the ideas that Janice proclaims about making luck I've used in my legal practice and life. You see I really think I'm lucky (one of Janice's ideas) so I have been lucky. But the truth goes much deeper than that.

I think about how I can make my case outcomes better.

What Can I do daily, weekly, and monthly to improve our legal practice?
Can those we defend benefit from my luck?

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

New York DWI: The Value of Being a Learner Lawyer

New York DWI Defense Works Best with Focus

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 a lot 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.

How can you stay excited about what you do everyday even New York DWI defense?

Sunday, April 19, 2009

Ithaca DWI Lawyer Larry Newman: Why Do I Represent Those People?

People Need Help with their DWI Charges

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

Saturday, April 18, 2009

New York DWI and DWAI: College Applications

Filling out an application can be harder than it looks
us and college applications

Filling out any College Applications? Have any prior New York criminal or non-climinal charges?  You need to answer carefully. Especially if you have had "any" prior contact with the law.

Filling out applications can be like navigating a minefield...

Nurses Have Professional Licenses: New York DWI

Yesterday I did a talk/powerpoint for a group of surgical nurses on Professional Discipline at Cayuga Surgical in Ithaca, NY. My wife is a nurse and New York like many states these days has an extensive list of behaviors both on and off the job that are considered professional misconduct. What would trigger a problem? What should a New York nurse or other professional do if they are facing charges?

Friday, April 17, 2009

New York DWI Charge: Dealing with Grief

I have counseled and represented clients as an attorney for twenty 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.

Do the people charged with DWI and other crime cycle through these stages to final acceptance?

Do some people get hung up on one or more stages in the process?

How can you better deal with a New York DWI or other criminal charge mentally?

Wednesday, April 15, 2009

New York DWI: You Gotta Keep Hope

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. But what is hope? Is it a duty or luxury? Can you still have hope after a DWI or other criminal charge?

Monday, April 13, 2009

DWI Lawyer Asks Questions: Are you Average? Police Assume You Are

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 ALL exactly the same? Are you average? Was your breath temperature average?

Sunday, April 12, 2009

DWI Defense: What do CSI, Easter, and Passover Have to do with it?

A Lawyer's Job is to Bring LIGHT into the Cases He Defends

Today is Easter Sunday, and after taking my dog for that long walk up to Collegetown gazing down Lake Cayuga I came back home with an interesting thought. Long thoughts on cold days sometimes bring forth creativity.

What do Easter, Passover, and CSI have in common? 
And what does any of this have to do with New York DWI defense?

Friday, April 10, 2009

New York DWI Charges: Can Bring Your Private Life Public

A great song with an even greater message
from motivational

People often ask me, "so what kind of law do you practice?"... my response is generally...well, I love cars and drugs, so anything that involves them, especially together are my favorite practice area. People usually take a step back but our practice is DWI and DWAI drugs in the Finger Lakes. If they press me further I explain . . .

Thursday, April 9, 2009

Ithaca Traffic Defense: Sometimes It's Not What You Know But Who You Know in an Ithaca DWI

Not "Just" But it Can Help Greatly 

One of the wonderful things about working in a college community like  Ithaca, NY is the diversity of people I have the opportunity to interact with and help. In any one week I have clients from China, Russia, Nigeria, India, and Nebraska. Sometimes it can prove challenging to explain the laws, and more importantly their application here in Upstate Central New York.

Many people are under the mistaken impression that knowing the New York laws is most important thing. But is it?

Wednesday, April 8, 2009

New York DWI: Always Go to the Arrest Scene

WHY You Should Go to the DWI scene?

Uneven Surfaces abound in this area
Can You See the Imaginary Line?
Cayuga Heights, New York DWI Reduced to a DWAI

Some Police Officers Like to Argue it's a "Pretend" Line. 

Is there Really a difference between a "pretend" and an"imaginary" Line?

A Gravel Surface, Imagine Walking this Barefoot?
That's what the police had my client do

DWI Case by The Boatyard Grill, Ithaca, NY

In my practice of New York DWI defense law no two cases are exactly the same. Any lawyer who says well it's just a "garden variety" DWI is sadly mistaken. A successful DWI defense, or any defense for that matter is a question of looking through, or at the details of the day, the driving, the stop, the arrest, and the post arrest police documentation.

Events NEVER take place in a vacuum. Some lawyers read the police report in five minutes, and then are done with their case analysis.

There is ALWAYS a DWI Story

There is always a chronology, and there are "stories." One version of the story will be through the eyes, ears, and nose (the senses) of the arresting officer, another version of the events will be through the eyes of the accused. Something in between those two versions may reside the truth.

Law enforcement often tells a biased and prejudiced DWI story. One that makes the person being arrested look, smell, and act badly. Opinions are always SUBJECTIVE not OBJECTIVE. I like to say somewhere between your client's version of the events and the police officer's version of the events lies the TRUTH of what really took place.

My teacher, Robert Deniro

My Best Criminal Defense Lessons Come from the Movies  

I am a big movie fan. I love Robert DeNiro. When great actors like Deniro are coupled with amazing dialogue movie magic happens.

In the film Ronin, DeNiro is going over the details of a bank heist, all the guys are gathered round, and as he is going over the map he STATES loudly and slowly,

  "The map is not the territory" 

DeNiro wants his men to canvas the scene, he wants them to walk, drive, and feel the target location. Looking at a map (2 dimensions) will never replace the 3 D of going and being there.

KEY Takeaway: On DWI Cases I Defend I Visit the Street/Road/Place of the DWI Arrest

In order to completely defend the charges of a DWI (or any crime) an attorney MUST visit the scene. This is the place of the FSTs (Field Sobriety Tests), and the arrest area. I cannot emphasize this enough. I cannot and will not begin to cross examine a police officer on a location I have not first visited. It is a big error that many attorneys often commit. Not going to the location and doing the walk through and drive through limits you on many levels.

How was the road? How was the sidewalk? What were the lighting conditions? How many street lights were overhead? Was there any trees, bushes, and foliage blocking anything? What was the weather like? I want to know the type of clothing worn. I want to know the type of shoes worn.

The REAL Question

Under what conditions and location did the accused have to perform these tests? 

If I go too late in the season things can change, like the trees and the views.

My mind races as I ponder questions I want to ask the cop for this is the beginning of the raising of reasonable doubts. These things are what I consider the potential and the possible, the many common sense reasons besides intoxication for BAD performance which in the Police Officer's estimation led to an arrest for DWI.

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

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Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers