Thursday, September 17, 2009

Begin with The End in Mind

I have learned a great deal from many older mentors over the course of the years. My father died the day after my 17th birthday so naturally I have had many other father figures since that time. One of my closest and dearest friends, an excellent trial attorney in Pennsylvania, named E.J. Carreiro taught me to always begin with the end in mind. As a lawyer that means begin your case by looking at what needs to be proven. For a negligence case that means: duty, breach of duty, proximate cause (relationship between duty and the breach), and damages.  

For New York DWI cases the government has the burden of going forward, the government has to prove their case beyond a reasonable doubt, and the government has to overcome the presumption of innocence.

Looking at the New York DWI Jury Instructions (the Judge instructs the jury with specific directions) for the per se charge (.08BAC or higher) VTL 1192 (2) states: 

Under our law, evidence that the defendant operated a motor vehicle, and that thereafter the defendant had .08 of one per centum or more by weight of alcohol in his or her blood permits, but does not require, the inference that, at the time of operation of the motor vehicle, the defendant had .08 of one per centum or more by weight of alcohol in his or her blood.

In deciding whether to draw that inference (a likely conclusion drawn from the facts) you may consider the results of any test given to determine the alcohol content of the defendant's blood.

In this case, the device (it is a machine) used to measure blood alcohol content was a Datamaster DMT (usually). That device is generally accepted instrument (machine) for determining blood alcohol content. Thus, the People are not required to offer expert scientific testimony to establish the validity of the principles upon which the device (machine) is based.


In considering the results of any test given to determine the alcohol content of defendant's blood you MUST consider:

1. the qualifications and reliability of the person who gave the test;
2. the lapse of time between the operation of the motor vehicle and the giving of the test;
3. Whether the device (machine) was in good working order at the time the test was administered;
4. Whether the test was properly given.

Note: We can argue all the problems inherent with breath testing (an indirect measurement of blood alcohol), and all the problems with the machine. 

Nevertheless, in evaluating the evidence offered to prove that the defendant did operate a motor vehicle while having a blood alcohol content of .08 or higher, you MAY consider, in addition to evidence of the results of the chemical test and the circumstances under it was administered, ANY evidence that, at times relevant to this charge, the defendant exhibited, or did not exhibit, signs of alcohol consumption.

Thus you MAY consider evidence of:

1. the defendant's physical condition and appearance,
2. balance and coordination,
3. manner of speech,
4. the presence or absence of an odor of alcohol,
5. the manner in which the defendant operated the motor vehicle (driving),
6. opinion testimony regarding defendant's sobriety,
7. the circumstances surrounding any accident.

The key of course with attacking the per se 1192 charge is going after the machine, it is not an instrument, not a device, it it "La Machina" and as such needs to be treated as such. It is not forensically reliable or accurate by any scientific standards or measure. Bringing this information (in simple terms) to the eyes and minds of the jury takes it off it's pedestal.

It is no more reliable than my vista software, my microwave, my vacuum cleaner, or my car on any given day. Accept those machines do not threaten me with jail, fines, probation, and alcohol treatment.

Wednesday, September 16, 2009

Time to Winterize!

For those of you new to Ithaca, NY and the Southern tier as it is affectionately is called... it gets downright cold rounds here... and the time to start prepping is not when the cold hits but way before. Yeah I know its only September but it is hitting the 40s now. 

I have almost all my cars ready with snow tires, winter wiper blades, and ice scrapers. My wife and I took out our winter boxes, stowed the summer shorts, and bade farewell to our short sleeve shirts.  It feels great to be well prepared. I have never failed a test I prepared for. 

That said, I live my life as I run my practice, lots of advance time to know my cases, to be set to file timely motions, and to size up situations way before game time. Yes, the game of DWI defense is played way before Court begins. Sports are much the same way. The teams that practice, visualize, set goals, run hard defenses, and learn new offenses in the off season come to their games at a different level.

It is truly what you do "out" of Court that determines how well you do when you are "in" Court. I overheard a fellow lawyer laughing at a long DWI questionnaire that I had a client fill out. He said, "all these questions are nonsense." Non-sense to those who do not understand their purpose. Nothing makes sense to those ignorant of the game. Is it nonsense to know if your client has arthritis, a torn meniscus, or is 50 pounds overweight? Is it nonsense to know if your client was wearing flip flops when taking the "tests"?

A part of my cross examination would sound something like this:

These are standardized tests, correct?
They have to be instructed in a specific manner, correct?
You have to follow the NHTSA guidelines? (National Highway Traffic Safety Administration)
This is so any officer in NYS follows the same guidelines and same protocol?
Now are these tests standardized for those wearing flip flops?
Now are these tests standardized for those people with arthritis?
Now are these tests standardized for people who are 50 pounds overweight?
Now you will agree with me when I say that doing these tests in flip flops is not an ideal test condition?
You will agree with me that doing this test on a gravel road either in her barefeet or with flip flops would not be an ideal test condition?
But that was the choice that you gave my client?
Either she was to do this test in barefoot or with flip flops?
Did you take that into consideration when grading this test?

Details matter, and details count if you know how to make them matter and how to make them count. Training in the art and science of cross is only a small part of what a DWI trial attorney must do. Imagine showing up to Court nice and comfortable because you are well prepared to fight your case, have winter tires on your car, and thermal undies. To me that is heavenly bliss. 

Friday, September 11, 2009

Ithaca Cortland Lawyer Discusses Teacher Certification After a New York State DWI

One of the many DWI questions I field is, "can I still be a "blank" after my DWI conviction?"

Well there is no simple answer to that question. Each and every profession/occupation/job has criteria and policy for hiring decisions/licensing decisions/certification decisions. While there are some general parameters, nothing is absolutely certain within this area. Generally these days in most states you will have an FBI background check with full prints before getting (or keeping) a teaching position.

see my blog posts here:  Why Get a DWAI Violation Letter of Explanation (legal opinion)?

How to get a job after a prior criminal or non-criminal drug charge here:

People overcome adversity every single day. Now that said, becoming a school bus driver after multiple DWIs is very unlikely. Just like being a children's daycare worker would not be in your future if you were a level three convicted sex offender.

So what criteria and factors would be considered for getting a teacher certification in New York State following a DWI conviction?

New York State Department of Education law sections 752 and 753 establish the policy and factors looked at for teacher certification.

Firstly, section 752 states that there shall be (must be) no unfair discrimination in receiving employment and/or a license merely based upon your past criminal convictions alone.

What type of convictions and offenses were there? How are they potentially related to the employment position and/or licensure that the applicant is seeking? How could they (these prior issues) potentially impact the health, safety, and/or welfare of the public and/or specific people if a license is granted (as in certification) or employment is permitted.

Secondly, section 753 provides:

"the public agency or private employer shall consider the following factors:
(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to the license or employment sought.
(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
(e) The age of the person at the time of occurrence of the criminal offense or offenses.
(f) The seriousness of the offense or offenses.
(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

And lastly, in making a determination pursuant to the section 752, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein."

If you are planning on looking for any employment after any New York State misdemeanor and/or felony conviction you would be advised to obtain a certificate of relief from disabilities or a certificate of good conduct from the Court that convicted you.

In addition, I think it is necessary and wise to bring to a potential employer and/or agency in which you seek licensure a current drug/alcohol evaluation by an OASAS certified evaluator. Just like you would want to know about the current state of a house before buying (an inspection report), or a dog before buying (a vet check up) or a car before buying (a Carfax), you would naturally want to be aware of any current problems with drugs and/or alcohol with someone before giving them a job or a license.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY  14850


The Reality of Fantasy Island

There used to be a TV show called "Fantasy Island." It starred Ricardo Montalban. People on the show would take a trip to a lush tropical island. The island was a magical place. Ricardo was in the fantasy fulfillment business. People looking for a one sided reality (a fantasy) soon discovered that there fantasies were not really all they were cracked up to be. The people visiting Fantasy Island discovered that the reason they were there was to get a life lesson.

I get many DWI phone calls, and some people want me to be Ricardo. I have been called Lorenzo but thats another story. What they seek is a fantasy. Make it all go away. Get rid of it. They ask, Can you get all the charges dropped? That is a possibility but in all probability, unlikely. They ask for their charge of an aggravated DWI (with a BAC of .18 or higher) to become a DWAI (less than .08 BAC), and a non-criminal offense. Anything is possible but if you expect this (these types of outcomes) without having a fight (a trial), and without incurring risk (jail) then you really do have a fantasy.

I deal in realities. I look at facts. Not Guilty does not mean innocent. Not Guilty means Not Proven. That is the legal reality. What are the proofs? What is the Evidence? Can we block (suppress) any Evidence, and thus weaken the Prosecution's case?

For example, where the Breathalyzer machine was re-calibrated (re-checked and balanced) beyond the six month time regulated time period the test results are probably unreliable and thus inaccurate.

If one case has an eight and half month re-calibration date prior to testing, and the other has a ten month re-calibration time period prior to testing will the judges in these Courts uphold my motion to suppress the results of these tests? I do not know. Do they have to? No. Can we appeal their decision? Yes. Do we want to? I do not know, that depends upon many factors.

When we get to trial this will also have an effect upon the case outcomes. Will a jury listening to this decide whether to give the breath test more or less weight? I hope that common sense will always prevail in these situations but you never know how some people (juries) think.

So you can see just because you find a major weakness in the prosecution's case doesn't necessarily mean that will "guarantee" anything.

Some people don't want to hear this reality. Giving cases enough time and effort ensures that better outcomes are more likely. In the long run that is the truth. The only truth of which I am aware is that Sustained effort (hard work) with a clear, focused goal utilizing all the resources (legal knowledge) and tools (trial skills) at your command will yield the best results.

Thursday, September 10, 2009

Do Not Pass Go, Do Not Collect $200!, Go Directly to Jail!

My family loves to play Monopoly. On those frigid Ithaca days we used it to teach our four kids about capitalism. We have many versions of the game (Simpsons,, etc.) including the latest with electronic credit cards, and a digital bank. In the game, you can make money, you can spend money, you can lose money, you can invest in properties and/or utilities, and you can wind up in jail. Monopoly sounds alot like real life.You can wind up in Monopoly jail a few different ways: a bad chance card, a bad community chest card, rolling doubles three times (Monopoly's version of speeding), or landing on the Go Directly To Jail space. Sometimes if the board has alot of development (houses and hotels) taking a jail break isn't so bad.

In real life, jail (the County), and prison (the state) is not fun or funny. It is not a space on a game board. Jail smells, I've been there (visiting of course), although on balance there are no wives or kids, and they do have tater tots. Unfortunately, you can't use a get out of Jail free card when you've had enough either.

DWI clients often ask me, "am I gonna go to jail for this?" ... my general answer is not usually on first time DWIs. My new answer is, "it depends"... it depends upon the Judge, it depends upon whether there was an accident, it depends upon your prior record, it depends on whether it's your first offense, it depends if you are under 21 years of age, it depends upon what county, or what city, or what village the arrest occurred in, it depends upon whether you taking a plea, or whether you are going to trial to contest the stop, the arrest, and the charges.

In some Courts first time offenders will almost never see jail, even if they contest the charges, and lose at trial. Other Courts are giving a weekend in jail for first time offenders under the age of 21 who plead guilty to the reduced offense of DWAI (the traffic violation). Some Courts if you lose at trial you may go to jail for up to a year.

Now mind you the Courts have to order a PSI (pre-sentence investigation) in two situations: One is if incarceration is a possibility, and another is if a term of probation supervision is a possibility. The PSI is where probation (usually the probation department in the county you reside) investigates your life, and makes a recommendation in your case. Judges do not have to follow the recommendation of probation. Judges do not have to follow the recommendation of the District Attorney either. Judges have their own viewpoints and beliefs about the purpose of jail. Some have the attitude of the old TV show Baretta, "don't do the crime if you can't do the time."

Many factors need to be considered in New York DWI cases. Nothing is ever cut and dried. Every case is unique, and the facts are never quite the same. Whether jail is a possibility or a probability needs discussion. There are no absolute guarantees in DWI cases, although many attorneys can predict likely outcomes.

Beyond jail attorneys need to consider that people might have different goals. Some clients, who may live hundreds of miles from the Courthouse may want the fastest and easiest closure to their case. Clients from other states and countries may not care about New York State license privileges. Clients who are retired may not care about having a criminal conviction while younger people may be willing to do anything (take greater risks) to avoid a criminal conviction. Some clients have drug and/or alcohol problems which need to be addressed and others do not. So cases needs to be weighed and evaluated based upon potential outcomes. Be wary of simple answers to complex issues.

Often the best counsel I can give is a detailed cases analysis, a laying out of options, after really hearing what my clients have to say. Often that means listening very carefully. My wife sometimes tells me (more like yells at me) .... "you're not hearing me"... "you may be listening but hearing and listening are two different things." They are very different things.

I understand that people come in different shapes, sizes, and mental frames of mind. There is not a one size fits all approach that works well for everyone. I encourage all people seeking DWI representation to contact multiple lawyers. Make sure you are comfortable with the person you hire to represent "your" interests.

Saturday, September 5, 2009

“Over the Limit, Under Arrest” Labor Day Weekend 2009

This is the last weekend of our Ithaca summer, and what a glorious upstate New York summer it has been. We have used our air conditioning only a handful of times. This marks the official ending of the season although I always gauge the transition to reality when my kids go back to school in Ithaca next week.

From someone who represents people charged with DWI a first hand warning to the those out there attending BBQs and assorted parties. There is nationwide DWI crackdown campaign going on these past few weeks called, "Over the limit, Under arrest." There are DWI Sobriety Checkpoints at many roads in Seneca County (especially route 96) where they are stopping cars randomly. They (the police) do not need probable cause for the stop (at these checkpoints) but they will need probable cause to proceed further with testing and subsequent arrests.

Even without Sobriety Checkpoints police in Tompkins, Yates, and Schuyler Counties will be stopping drivers for failure to use turn signals, driving with their brights, and other assorted moving violations too numerous to mention.

There are 7 major crackdowns periods which will target specific holiday/celebration times throughout the year: 

1.  January 26-February 2, for the Super Bowl; 
2.  March 9-17, for St. Patrick’s Day; 
3.  May 21-25, for Memorial Day weekend;
4.  June 21-July 5, for the Fourth of July holiday
5.  August 23- September 5, End of summer Labor day;
6.  October 25-31, for Halloween;
7.  November 20-January 2, 2009, for the Thanksgiving through New Year’s 

I would advise the following:

1. Have your driver's license, registration, and insurance information in an easily accessible place.
2. Make sure your car's inspection, registration, and equipment are up to date.
3. Do not transport or have out for open view any bongs, pipes, and/or grinders.
4. Have a "designated" driver who doesn't drink or partake in any drugs. Having a best driver under the circumstances is a bad idea.
5. If stopped, you do not have to take field sobriety tests.
6. If stopped, you do not have to take the field breath test (although there is a fine.)
7. You have a "choice" to take the breath test (the Chemical Test) back at the station. If you refuse, there is a one year revocation of your license and fines. Under "some" circumstances, it is better to refuse. Call me or another lawyer to discuss prior to testing. 
8. You do not have to answer questions, make admissions, and/or confessions. Anything you say can and will be used against you.
9. Be polite and respectful.
10. Sobering up is a matter of time. It takes the average person approximately one hour to "clear" one drink. One drink is equal to one 8oz. beer (normal strength) = one 4oz. glass of wine= one shot (80 proof). Coffee will not help you
11. The most common and deadly drugs if combined with alcohol are: depressants, like valium, xanax, and ambien and over the counter drugs which contain antihistamines. Be careful of cold and flu remedies (which also contain alcohol).
12. Note: that most drugs will affect the "clearance" of alcohol from the body. In other words the amount of time it takes for the alcohol to be absorbed, distributed, and eliminated. Common Birth Control Pills can slow down the absorption and elimination of alcohol from the body thus increasing the effects of even a few drinks.

Wednesday, September 2, 2009

Lawyers Should Never Assume Anything!

Handling DWI cases in Yates, Steuben, and Seneca Counties brings me to many small town Courts. The first thing I notice is little to no civilization, then no gas stations, then no cell service, then my car navigation just gives up. I sometimes imagine a cold and dark winter night when I am stuck in the middle of icy ditch, cast out in the middle of nowhere (is there a middle if you are nowhere?) and cursing my grand idea to live and to practice where there are more green pastures, cows, and trees than people.

A cautionary word to the wise don't ass-u-me anything (cause if you do you make an ass of u and me), 

1. Never assume that a Town Court is in that Town. 

I had a case in the Town of Jerusalem (no not the Town of Jesus birth) but a town in Yates County, NY. Jerusalem is in Branchport. My GPS had me going in round and round in circles.

The Town Court of Torrey is in Dresden, NY.

Barrington Town Court is in Penn Yan, NY.

I think you get my point! Check the town's true location on google. Get an real address. I'm going back to paper maps because sometimes the online directions take me through dirt (unpaved) roads in many of these areas. It's not much of a short cut if you have to wait for the sheep or cows to cross the road or have gravel pummeling your car paint.

2. Don't assume first come first served.

Small Town Courts have their own rhythm. The judges may or may not take the attorneys first. They may or may not have all the necessary paperwork. Have patience and courtesy in these places. The pace is definitely slower and more methodical. If you are in a rush you should have thought about that long before you passed through. I love practicing DWI defense in these small towns. It is challenging and rewarding.

Relish the views, the hometown hospitality, and the fresh air but never assume anything, especially around here.

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

Reviews of Larry Newman:

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