Thursday, September 23, 2010

Getting Off a New York DWI

Well this is my 100th blog posting since I began my DWI blogging. Because I have taken a long summer haitus from writing I am filled with inspiration and ideas. I get calls all the time, just last week I got one of those 3 AM calls, yes, nothing like a 3 O'clock on a Saturday morning to shock your system... hello.. my daughter...was arrested... this was not the "should I take the breath test?" calls, it was the post DWI arrest now what? phone calls from a concerned parent.

I do my best to launch into explanation mode (hard to do half asleep) and tell her to have her daughter call me in the morning (Sunday)... I go back to sleep... my wife is very understanding thank G-d... 10 minutes later...another call..."I have a few more questions..." Meanwhile none of this is within the context of the hour, in other words, people sometimes expect me to be waiting by the phone and always ready, when it is necessary I am but sometimes things can wait.

Which brings me to my main point today, what is GETTING OFF,

in common parlance (as in parlez vous = you speak) means...

Not having any charges, or having them dismissed by the District Attorney or Judge, or being found not guilty of everything...

First, how common is this? Not common, but it can happen. If there is no PC (Probable Cause) for a car stop then all the "fruits" of that stop ie. the breath test are "poisoned" Attorneys call this the "fruit of the poisonous tree." PC in New York is a legitimate reason for a stop, a factual traffic violation. We can also raise issues concerning PC to make an arrest but this is usually a small hurdle for the Police to surmount with the stop cop talking about odor of alcohol, slurring of speech, bloodshot eyes, etc. Remember that the DWI common law charge, VTL 1192 (3) is based on the OPINION! of a police officer.

Second, District Attorneys make offers but usually do not let people completely OFF of all charges. It is a ridiculous fantasy. It bothers me when people call me stating that a lawyer or law firm "promised" and/or "guaranteed" them a particular result. It is unethical and unprofessional to ensure a result. I make reasonable predictions and show usual options but to do more in the initial stages (without all the paperwork, police reports, breath test records, etc.) is practically impossible. My promise is to always do my best. I had one attorney locally promise to get a son's client OFF for $5,000 on a 0.19 Aggravated DWI. I told her without any discovery, without a suppression hearing, and without a trial this was highly unlikely. But people want so badly to believe in a FANTASY. Maybe it's human nature, but if it sounds too good to be true, it probably is BS.

Third, the REALITY in this particular situation is that a Judge cannot accept a plea to reduce a Aggravated DWI (DWI per se with a BAC (blood alcohol concentration) of 0.18 or more) to a DWAI (Driving While Ability Impaired), a traffic offense, without strong reasons. To further believe that a Judge or District Attorney would dismiss the charges outright would equate with winning the lottery or being struck by lighting.

Fourth, the big win in New York State is a reduction to a DWAI because of two reasons:

1. the proof required is "any extent of impairment," a small burden of proof compared to intoxication (DWI, which requires mental and physical incapacity (to a substantial extent) to operate an automobile as a reasonably prudent driver)

2. since DWAI is a traffic offense you get a bench (judge) trial, no jury, and many judges feel that this outcome is more than fair and just compared to the DWI charges.

So please exercise your RIGHT to not accept anything blindly, and to be skeptical of anyone offering fast, easy, and cheap solutions. A great analogy is that almost all of the contestants on the show "The Biggest Loser" including the "winners" put all their weight back in the months after the show was over. THE REALITY: Long term "healthy" weight loss requires a lifetime of work and lifestyle changes it is not going to be accomplished with a short term FANTASY program.

So many things to talk about for September, 2010:

1. We have a new ignition interlock law (effective August 15, 2010), and IIDs have many issues and the implementation of them (monitoring) has been a nightmare for many counties.

2. We have new forensic studies that make our "one" breath test state even more suspect and in the words of my kids "sketchy."

3. New York Law is being challenged. Specifically the admission of the breath test calibration and simulation solutions records into evidence at DWI trials absent their certifiers appearance at trial. These are sixth amendment confrontation clause issues that have been raised nationally by the Supreme Court, and are now being raised locally by attorneys like myself.

So we are back or off to a new start, as a new school/college term is underway, and we are all learning.