Thursday, June 4, 2009

What is the Reality Behind a Successful DWI Defense?

They say that Ithaca, NY is “ten square miles surrounded by reality,” and I would imagine life would be easier if we could only all agree on what reality is.

It is often a challenging task for lawyers to clearly communicate with their clients the full understanding of the reality of the pending criminal charges. Explaining a legal situation by placing it in context, and in terms they can understand can be difficult. In the practice of DWI defense a discussion of the differences between reality, fantasy, and actuality are an integral and necessary part of the case evaluation process.

Reality is always a perception.

It comes from a specific, personal, and unique vantage point. This viewpoint is likely grounded in a person’s set of mental filters and life experiences. Jurors from various backgrounds who sit on the same case, side by side in the same box, will likely focus on different facts. All that they choose to hear and see are then interpreted through their own belief systems. The unanimous conclusion they form over a person's legal guilt or legal innocence hinges on their agreement as a cohesive group over what the facts mean to them.

It is often the case that agreement between the jurors over “whether a person was driving while intoxicated (DWI) or driving while their ability was impaired (DWAI)” may have less to do with the truth of the evidence presented and have more to do with how they see and interpret the world.

The prosecutor and the defense attorney will both present the same set of facts but from different points of view, and with different conclusions. Which story (focus), and which conclusion regarding the DWI charge the jurors believe will partially rest on their upbringing and unique set of life influencers. That is why the jury selection or de-selection process called “Voir Dire” (literally to speak truth) is crucial to discovering possible juror prejudice or bias. Voir dire is when both Judge and attorneys can ask the jurors questions to bring out issues of partiality or unfairness amongst the jury pool prior to them being picked to sit for a trial.

In a DWI trial, we certainly want jurors who can be fair and impartial. If they or a family member was hurt by a drunk driver they will likely bring a highly charged prejudice into the Courtroom. If they or a family member works or worked in law enforcement this will likely color their opinion in favor of the police officer and breath test operator’s degree of credibility and subsequent testimony.

Case Evaluation Question One: VIEWPOINT

The "Reality" Question: Can the jurors put themselves in your shoes?

If you are under the age of 21, and were out on a night of illegal drinking (you must be 21 to legally drink in New York State) then a jury of people from the ages of 40 to 70 may not be in your favor. In contrast, if you were out celebrating your birthday with family and friends, and you were over 21 at the time, the scales will probably tip in your favor. This is because many people will likely relate to your legal and normal, social celebration of that special occasion with alcohol.

Jury empathy is powerful. Your unique set of facts on the night of your stop and subsequent arrest speak volumes to people who can see themselves, and their own behavior in your situation.

Case Evaluation Question Number Two: REASONABLENESS

The "Fantasy" Question: Are my expectations concerning my case reasonable and fact based?

The main purpose of an attorney review and evaluation of your criminal case is to clearly, completely, and objectively dissect the evidence against you. Only after an attorney has complete discovery (police reports, accident reports, investigative notes, and records) and your version of the event, can he or she give you a fair and balanced legal opinion. The law is based in degrees of culpability (fault), and likelihoods (probabilities). Is it likely based upon all the facts, the charges, and the totality of the situation that the government can prove all the criminal charges beyond a reasonable doubt? You can not sweep bad evidence under a rug.

Fantasy is not grounded in reality.

Fantasies focus on false facts and/or negation of true facts. In the world of fantasy, facts that have no weight or bearing or relevance upon a legal situation are talked about, repeated, and emphasized by a client. A hallmark of the fantasy is having unreasonable expectations based upon the totality of the situation. The following are a few examples of fantasy based thought patterns:

Being a good student, from a respected family, with excellent character references may have bearing upon a Court’s sentencing and punishment but will have little bearing upon the prosecutor’s decision to pursue or downgrade the criminal charges, ie. offer a plea.

A Police officer who observed and reports in detail a driving pattern over the course of several miles with long periods of erratic and dangerous maneuvers can not be overlooked, it can not be negated, and it must be addressed at trial.

Doing 94 MPH in a 55MPH zone while having a bottle of Bourbon, and a pipe containing marijuana on your front seat will generally have an negative impact upon a jury, and a bearing upon your case.

Incriminating statements made after receiving your Miranda (right to remain silent, etc.)warnings, such as: “I should not have been driving tonight” or "Yeah, I had more beer than I can remember" or “I am 100% guilty” or “I made a stupid decision” must to be considered by your attorney for a fair case evaluation. Admissions of guilt after being warned of your right to remain silent are powerful prosecution evidence. DWI cases always have strong or weak defenses based upon and within the facts. Admissions of guilt whether verbal or written are likely damaging to your legal innocence.

The Actual is a balanced, stable, and non polarized understanding. 

It is an awareness that two sides always exist. I am a fan of Ralph Waldo Emerson. In 1841, he wrote an essay on the Law of Compensation. The piece is a brilliant and thoughtful look at the two sides of every event and thing. I believe that most DWI cases have an actuality base of both good and bad facts. Attorneys usually have to seek out (discover) the good facts that can help our cases. The good facts may be that the field sobriety tests were administered unfairly. Maybe your failure of certain tests was based on the walking of an invisible line, doing the tests in high heel shoes, or the subjective grading scale that was used. Should missing only two letters of the alphabet count as a failure of the test? The bad facts are easy to find because they are commonly written about within the police report and investigation notes.

The evaluation of the strengths and weaknesses of any DWI case hinges upon the specific patterns of facts and their potential interpretation by a Jury.

Case Evaluation Question Number Three: COMPLETENESS

The Actuality Question: What were your behavior pattern and driving pattern on the night of the arrest?

The old saying, “if it looks like a duck, walks like a duck, and sounds like a duck it most probably is a duck” holds true in most jurors minds. Overall, how did you move, talk, and act?

Alcohol is known to affect mental function before physical function. On the night of your arrest how was your mental behavior pattern? Were you able to: understand directions, follow instructions appropriately and in a timely manner, formulate intelligent responses to questions, and recall information that was requested? For example, there are five parts to the Miranda warning. Were you able to communicate your understanding of all five parts? Were you able to produce the correct documents in the order requested they were requested?

How was your physical behavior pattern? On a scale of 1-10, how was your performance on the field side tests? These balance and coordination exercises have many parts. Did you fall down? Were you able to walk normally? Were you able to stop and start when directed? All of your physical movements (demonstrating function) during the entire police "encounter" should be examined and evaluated.

If you were merely pulled over (stopped) for an equipment violation or a dated inspection sticker, then it is likely that your driving pattern was normal. If you were stopped for speeding, it could be argued that it generally takes more coordination, concentration, and focused attention to keep a car in line with the roadways and traffic at higher speeds.
There are 24 commonly observed driving patterns that signal nighttime impaired motorists. These come from the National Highway Traffic Safety Administration booklet- “The Visual Detection of DWI Motorists” (DOT HS 808 677).

These are a few of the bad patterns of driving behavior: weaving, straddling lanes, swerving, turning wide radius, drifting, almost hitting cars or railings, stopping abruptly, accelerating rapidly, decelerating rapidly, very slow speed, slow response to traffic signals and/or the police officer’s signals.

Now keep in mind, you can be a bad driver, a tired driver, or a distracted driver and display any of these erratic patterns without any alcohol in your system. Was there another non alcohol related reason for your poor driving behavior? Your lack of sleep, being overly worked, having a cold or an allergy can all contribute to bad driving behavior. Raising evidence of other non alcohol related reasons for behavior that could be due to alcohol is called evidence of reasonable doubt.

Case Evaluation Question Number Four: CONSISTENCY

Are my behavior pattern and my driving pattern on the night of my arrest consistent with my reported BAC (Blood Alcohol Concentration)?

This is the juncture where true case evaluation comes together. We must put everything (all the facts) into the context of juror perspective. Taking all the mental function facts, physical function facts, and driving pattern facts together are they a consistent and believable match to your Breath Test machine result? DWI defense lawyers like to call this the "disconnect theory." This is because if the BAC does not match up with all the other evidence, it stands alone, and it is disconnected as a piece of evidence. It can be viewed by the jury as invalid and inaccurate.

The jurors have an important trial decision to make. In these types of cases the jury must decide whether to hold you guilty by the breath machine’s number alone (that is the DWI 1192 (2), “per se” >.08 BAC charge), or to value their own better judgment and common sense by looking at all the facts of your case.

I would like to believe that in these situations people are not swayed by false science. I would hope that they trust themselves enough to follow the Judge’s instructions on the criminal legal standard of beyond a reasonable doubt with all proof (evidence) brought before them.

So there you have it,

1. if the jurors can empathize with you,
2. if you have a safe and proper (non erratic) driving pattern or a non alcohol related reason for an erratic pattern,
3. if facts can show that you possessed normal mental function on the night of your arrest that marks the beginnings of a great DWI defense in spite of your BAC number of .08.
4. If you can add to that defense pretty good physical performance/function in terms of your walking and moving about (even with failed field sobriety tests) you will start to tip the scale in favor of your innocence of the charge of driving while intoxicated.

The 9 Most FAQ About NY DWI, here:

The New York Up State DWI Survival Guide, here:

Winning The NYS DWI Refusal Case, here:

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 550 blog posts, dozens of articles, and over 520 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.


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