Tuesday, April 5, 2011

Ithaca Cortland DWI Lawyer Reasons DWAI is a Good Outcome in Refusal Case

The New York DWI Chemical Test Refusal Case is unique for a number of reasons:

1. The police and prosecution do not have a breath test (NO BAC) to prove their case of Intoxicated driving. Is it now a matter of degree? Impairment vs. Intoxication?

2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >. although with new case law (2012) they can try to charge using the roadside field breath test, Intoximeter. NOTE: But probably (highly unlikely) they can not lay proper foundation to admit the BAC result at a trial for "per se" (machine) DWI.

3. The prosecutor can only charge VTL 1192 (3), "Common Law" DWI.

4. The prosecutor usually only has one main witness, the arresting officer. i.e.. the STOP COP.

5. The prosecutor must prove that "you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver." Standard comes from the seminal case, People v. Cruz, NYS.

6. They must prove this legal burden of "intoxication" beyond a reasonable doubt based upon the police officer's observations, and field testing, if any.

7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.

8. The DWI defense lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor. An opportunity to view the case and maybe win some points.

9. This "cross examination" can cover the stop, the arrest, and the field testing. Most DMV judges will only allow this to a limited degree but still it is an opportunity.

Dr. Lawrence (Larry) Newman
Attorney at Law
Doctor of Chiropractic

504 North Aurora Street
Ithaca, NY 14850



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