Friday, November 20, 2009

Lessening the Consequences of Your DWI: How to Deal with Your Loss of License

The first order of business after any DWI arrest is what's going to happen to your driver's license?

In New York State, we have a "suspension (of license privilege) pending prosecution" which will usually occur at arraignment (initial appearance). Fortunately, New York does have a hardship privilege, and also offers conditional licenses for specific purposes. How those privileges are obtained, how wide or narrow they are, and how they will fit your life's transportation needs is dependent upon many factors.

If someone hires a lawyer early (way before arraignment) then the total license issues (in state, out of state, conditional, hardship) can be evaluated and prepared for.

Are you a student? If you are a college student, what state is your license from? Are you doing late night or weekend research? If you have a job, what "type" of work do you do? Are you in transition between states, jobs, or homes? Are you divorced or separated? Do you need to pick up or transport minor children? Do you have child care responsibilities? Are you self -employed? Does your job require meeting with clients? Do you live in a rural location? Are you planning on moving to another state in the near future? Do you or a family member have medical needs? Your response to every one of these questions is important. What type of proof is the judge going to require to obtain a hardship privilege?

My first goal is to keep someone employed (able to get to and from work) and functional.
My second goal is to lessen license penalties (time of full suspension or revocation).
My third goal is to prepare for potential future issues (re-location, re-licensure).

There are ways to save time and money dependent upon your unique situation.

The first change every driver must make is going from a full privilege to drive to a conditional (restricted) privilege to drive. This may be for a period of weeks to months depending upon the facts of your case. If your case can be easily resolved (negotiated) then license issues can be further minimized.

Generally, the first 30 days (after initial appearance) will be the hardest because of two things:

1. the hardship privilege is the most restrictive type of conditional license (very narrow language of "to and from" work, "to and from" school, and "to and from" medical care)

2. SPECIFIC PROOF MUST be provided to the Court (the Judge will usually only allow what can be proven to where there is "no alternative reasonable means of transportation").

The next time period (after the first 30 days of arraignment) you can go to any NYS DMV office, and apply for the Conditional License. This requires NO PROOF. You fill out the application and your work privileges go from the "to and from" to "in the Course of employment," which is a much wider license.

Of course, the absolute best thing to do is to hire a knowledgeable DWI attorney early and to discuss all the specifics of your situation. This will give you the best chance to save time, money, and aggravation.

Thursday, November 19, 2009

New York Passes New Tougher DWI Laws

Yesterday I was first up in Ithaca City Court (first come first served), with four DWI cases in various stages of disposition. Judge Rossiter began the morning by announcing to a full Courtroom (240 cases on her docket) about the new New York DWI legislation that was a coming.

On November 18, 2009, Governor Paterson signed into law, Governor's Program Bill Number 204, The Child Passenger Protection Act, also known as Leandra's Law, it passed by the wide margin of 58-0.

New York State now joins 35 other states that make it a class E felony for first time DWI offenders driving with children as passengers. Class E Felonies carry State prison terms of 1 to 4 years, and 5 years of probation.

This new law also makes Ignition Interlock Devices Mandatory for first time DWI offenders. This is something the Court must impose for a period of at least 6 months. Illinois just put this into their law in 2009, and many other states are following suit.

Specifically under the new law:

1. First time DWI offenders (the per se violation of a BAC .08 or higher and/or common law DWI) or Impaired by drugs (DWAI drugs) driving with a child (15 years or under) may be charged with a Class E Felony. In the past, DWIs were only charged as Class E felonies after a second DWI was committed within a 10 year time period.

2. Mandatory Driver License Suspension (pending prosecution) for people so charged. This is no different than the law in it's current form.

3. Courts MUST order an ignition interlock device on all those convicted of DWI. There is a minimum 6 month time period for Installation and maintenance of the device on any vehicle owned and operated by those convicted of DWI.

4. The Probation Department within each respective county will monitor, issue regulations, and oversee these Ignition Interlock Devices, and their usage. Reading between the lines that means Probation Supervision is a likely possibility ( 3 years for a misdemeanor DWI, and 5 years for a felony DWI) for those convicted as well.

5. Drivers who cause serious physical injury (the threshold for serious injury is not very high) to children 16 or younger will be charged with a Class C Felony, punishable by up to 15 years in State Prison.

6. Drivers who cause the death of child may be charged with a Class B Felony, punishable by up to 25 years in State Prison.

7. Drivers (who are also parent, guardian, or legally responsible for a child) charged with any DWI or DWAI drugs while "that" child is a passenger will also be reported to the Statewide Central Register of Child Abuse and Maltreatment. Child endangerment charges are another likely scenario as well as being held as an unfit parent or legal guardian.

The good news, this year I have not had any DWI cases where my clients had children 16 years or younger as passengers in their cars. Although I did refer a DWI case with a NY driver traveling through another state who did have his children asleep in the back seat of his car. If that same case played out here, with this new legislation in place, it would be a potential nightmare on so many levels.

In that situation, the Office of Children and Family Services would be involved, and those parents would be facing criminal court and family court, and an open Pandora's box of problems. Charges of Child maltreatment, Child neglect, and Child abuse may add to all the other issues facing first time DWI offenders.

Lawrence Newman, D.C., Esq.

Tuesday, November 17, 2009

What does Your DWI Lawyer Believe?

I have just turned the magic age of 48. Getting a bit more grey, having a few more excuse me "sirs" thrown my way pauses me to think, to reflect, and to question.

I feel extremely fortunate for my time here, my practice, and my opportunities. I have had 23 years of practicing both as a Chiropractic Physician, and as an Attorney at Law. Along the way I have had the pleasure and pain of helping thousands of people get through some of the worst times in their lives. I am at heart a caretaker. I am good at helping people heal. Whether with a word or a touch, it is my gift and ability.

I love to learn. What I have returned to again and again is that a person's beliefs will truly control and direct their destiny. At it's core, belief systems can be a series of convictions. Things that people are convinced about. They will fight to maintain them, and to honor their truth.

How many things do we believe in that are "true"? Only later to discover are false. They are propaganda, they are the ideas of others that we have bought into.

I caution those that pick counselors, choose leaders, and hire advisors to first find out what those people BELIEVE.

What does your doctor believe? Does he believe in the miracle of life and love? Does he believe that everything he was taught was fatal, actually is? Does he believe that the mind can affect the body? Does he believe that natural cures and remedies could work? Does he believe that everyone fits in the same box and should receive the same medicine? Does he buy into the value of rest, fresh air, and exercise? My father's doctors all smoked, and were overweight. They cautioned me about doing too much exercise. My father died of a third heart attack at the young age of 51. All his "trusted" doctors, his health advisors died early just like he did.

Now think about this for a moment, this is your doctor, and he is going to advise you, he is going to recommend treatment, he may even render a surgical opinion, how important is his belief system to the ultimate outcome of your care? It is everything! How he feels about drugs, food, surgery, and all else will color his advice to you.

Now take that understanding and perspective to the attorney that is going to represent you.

What does your DWI Defense attorney believe? Does he believe that the breath test is a very accurate, reliable, scientific, and valid measure of blood alcohol concentration? Does he believe that field sobriety tests are fair? Does he believe that the police officer's opinion, and his report are the truth?

I have met many attorneys whose belief systems are defeatist. They are sunk before they even begin. Where can you possibly go if you BUY into the prosecutor's machine result? What can you possibly argue with any heart or passion if you believe that your client is guilty as charged?

The reason why the best (I use that term with caution) DWI defense attorneys go to seminars (on the breath machines and field sobriety tests) is not only to gather knowledge BUT more importantly to topple belief systems. To challenge the reliability, accuracy, and validity of "objective" evidence. To change their minds about possible versus probable. To discover and uncover the natural and persistent doubt that goes with a great defense of the government's proof.

In my opinion the best DWI defense lawyers are SKEPTICS. They want to be shown, they are doubters, they are devil's advocates, they are in a word "difficult" and hard to convince.

What your lawyer and your doctor believe is very important to you and your future.

This is what I believe:

1. Machines are not perfect. They make mistakes. Even when they work perfectly they are subject to error. Often the people that use them use them incorrectly. Breath testing is convenient and cheap, it is not scientific, accurate, or reliable in it's current form.

2. All DWI cases must be looked at in detail, and the evidence must be gathered so that the situation can be looked at in the TOTALITY. How I feel about a case or advise a client will turn upon a full, fair, and realistic evaluation of everything.

3. Opinions are just that. A viewpoint, and a perspective, that have a bias, and that are highly subjective.

4. Lawyers need to understand what is important to their clients. My job is to guide, advise, and represent "their" interests being mindful of "their" values.

5. What people want, and what they can have may be world's apart. While lawyers can predict outcomes, we certainly cannot guarantee them. Many things are outside of our control. Judges, juries, and facts beyond change (accidents, prior convictions, chronologies, etc.) can impact final outcomes. When it comes to legal matters, You may want the cheerfulness of an optimist and hate the opinion of the pessimist, but what you really want is the advice of a realist.

Always ask your doctors, and your lawyers what they "believe" before you hire them to help you.

Tuesday, November 10, 2009

Keeping a DWI Defense Perspective

Ah little Ithaca, NY with it's rural two lane roads. Some days I spend hours in my car. It allows me lots of time to think. Driving from a Court in Tompkins county to another Court in Seneca County, I got DWI cases on the brain.

My curse or blessing is that I am always thinking. My mind is processing and sometimes my hard drive is so engaged I lose track of place and/or time. One thing that time allows is the ability to see things anew. I remember my college days of first drafts, and long hours in a chair. But first drafts like first anythings are merely openings. True "ah hah" moments occur long after those initial efforts. Putting papers away, taking a break, catching a nap, or going for a drive create a gap between not only "the work" and "your life" but your perspective as well.

When I sit down with my clients and review their police reports they initially go through all the stages of loss (anger, denial, acceptance, bargaining). The truth is it is merely an opinion of an event. Once I explain what I am looking for, reading in between the lines, and seeking the complete picture they begin to lighten up. In fact, their posture often changes immediately from a slump to an upright position.

What was NOT written is as important if not more important as what WAS written. Nobody (police officer) is going to write a perfect report. Often there are flaws, inconsistencies, and errors. People love to use adjectives, but often adjectives are conclusions not observations.

For instance, the BIG THREE:

1. ODOR of alcohol
2. Slurring of speech
3. Bloodshot/watery eyes

1. The "strong" odor of alcohol means what? Does it mean you had alot to drink? Can anyone tell the amount of alcohol based upon an odor? That is like saying I can tell how clean you are (your level of hygiene) by the smell of your cologne, hair product, or perfume. The odor of alcohol coming from your breath means one thing, and one thing only, you consumed alcohol, period.
If you told the officer that you drank that evening what has it (odor) added to his investigation? Nothing. It does not indicate DWI. It indicates Consumption of an alcoholic beverage. Nada mas!

2. Has this officer ever heard you speak before? Does he know how you normally speak at 2:00AM? Does he know how you speak when you are tired or are suffering from sleep deprivation? Is there anything that you said to him that he did not understand? Did he ask you to repeat any words or responses? Were you able to provide him with intelligible and articulate responses to all his questions? So what is slurring? Is it the elongation of syllables? I am not a speech pathologist, and neither is this officer. We are all different. We all speak different, walk different, and talk different. Our muscles (both large and small) tense and lock up when under stress (a traffic stop/police encounter). It is common knowledge that people that are anxious and nervous do not speak as fluently. Public speaking is the number one fear. Situational stress and physiological adaption are real and NORMAL.

3. Everyone's eyes have a certain degree of moistness. Are your eyes red because of a cold, allergies, tiredness, exposure to the cold, wind, or do you suffer from "study syndrome"?
All kidding aside, I just made up the diagnosis of study syndrome, but sitting in a library or room writing papers for hours can make your eyes look pretty bad. Having a fight with your boyfriend, parents, or roomies can also make your eyes red and mad. So what does the observation of bloodshot/watery/red eyes tell us? Is everyone with watery eyes drunk? Are your eyes "very" watery? Compared to what? Compared to who? Dos it mean you are DWI? Of course not, it means you are NORMAL.

So there you have the BIG THREE, in any trial those are the first alleged observations that need to be cross examined thoroughly. If not dealt with, Jurors expect (and envision) someone from the show cops. You know those fall down, barely standing, drunk out of their mind, yelling lunatics. Those people are off the charts when it comes to BAC (blood alcohol concentrations).

Sometimes it is not as bad as you think it is or sounds!

Friday, November 6, 2009

The Sesame Street DWI Defense

Well it is the 40th Anniversary of Sesame Street. How do I know this? Google is a great teacher. My Google home page often displays something unique and different. Many days my curiosity leads me to click the current icon, and learn something new.

Sesame Street has been on TV since I can remember. It has helped to raise and educate millions of children. It has been said that Joe Camel is one of the most recognized symbols in America after Mickey Mouse. I would argue that Big Bird, Elmo, Ernie, and Cookie Monster are all close rivals.

I learned a Sesame Street DWI defense from a fellow DWI lawyer named Bruce Kapsack who practices in California. Bruce has a great book detailing many defenses he has used to win drunk driving cases. It is called, "Innovative DUI Trial Tools."

One of these defenses Bruce talks about in his book is called the "Disconnect Theory" or as Sesame Street sings, "One of these things is not like the other, one of these things just doesn't belong."

One of These Things (Is Not Like The Others)

Words and Music by Joe Raposo and Jon Stone

One of these things is not like the others,
One of these things just doesn't belong,
Can you tell which thing is not like the others
By the time I finish my song?

Did you guess which thing was not like the others?
Did you guess which thing just doesn't belong?
If you guessed this one is not like the others,
Then you're absolutely...right!

The defense is: If we have a breath test result (high BAC of say >.12) that doesn't match up with the client's behavior, driving, stop, mental function, walking, and talking then this BAC NUMBER is a mismatch (it doesn't belong). Coupled with the facts of the case, ie. the client never used the bathroom after the time of the arrest. How is that possible if he is alleged to have had so much to drink?

Here we have the making of reasonable doubt that the machine's BAC number is NOT accurate, reliable, and valid. All proof in the prosecution's theory must add up. If the totality of the situation just doesn't add up...

Inaccurate machine results lead to wrongful convictions!

Tuesday, November 3, 2009


I'm not from Ithaca, NY even though I love the area. I always say I am in Ithaca by Choice Not Chance. I am thankful daily for my educational opportunities both as a Chiropractor, and as a lawyer. When I hear students complain about the high costs of college I am quick to point out the higher costs of ignorance. But educations much like people come in different forms. I grew up with few privileges (my kids hate my Abe Lincoln speech) but growing up on the streets of Brooklyn I learned a great many things they don't talk about in the burbs.

Some of them related to a core-street philosophy.

Ideas like:

-Mind your own business (focus on your own stuff/your own issues/don't put your nose where it doesn't belong)

-Don't poop where you eat (don't cause problems where you live/Don't date locally)

-Poop or get off the pot (be decisive, Do not vacillate, indecision is a killer and the cousin of procrastination)
-KISS (Keep it Simple Stupid, complicated is not always better)

Well I just returned from a NHTSA (National Highway Traffic Safety) Certification on the Standardized Field Sobriety Tests in Chicago. The instructor, a former police officer, trainer, and Phd. (he did his dissertation on the HGN, Horizontal Gaze Nystagmus Test) Dr. Platt taught us that KISS for DWI Defense really means: Keep It Sobriety Specific.

In other words when we are looking at a traffic stop, first police contact, and an eventual DWI arrest we (as defense attorneys) should view all the evidence (all the facts) from or through the prism of SOBRIETY.

What and where is the sober behavior?
Driving Pattern

What and where is the normal behavior?
Walking Pattern

What and where is the appropriate behavior?
Talking Pattern

What and where is the expected behavior?
Mental function/Understanding/Coherency

Before we even get to looking at performance on the SFSTS (standardized field sobriety tests: HGN, Heel-Toe, One Leg Stand) we must look over the TOTALITY of the Police encounter with an investigator's demeanor and focus.

Our best defense to the charges of DWI lie within this KISS philosophy.