Thursday, May 26, 2011

Are Campus University Police Real Police?

Ithaca Lawyer Appears in Ulysses/ Trumansburg Town Court

Ulysses/ Trumansburg Town Court

Just up the road North of Ithaca on Route 96 is Trumansburg, more affectionately known as "T-Burg." Grassroots Festival (be careful driving or walking because of DWI and drugs, etc.), and lots of other Finger Lake events bring people from far and wide to this sleepy little town. Ulysses and T-Burg share the same Courthouse, right on Elm. Street, next to the Post Office. Plenty of parking in lots adjacent to and across from Court, unlike so many of the Courts I visit.

When I first came up here from the City this was always confusing. Confusing, because many Courts are not located in their Towns. For instance, Yates County/ Jerusalem Court is located in Branchport, so if you go to the Town of Jerusalem you're lost! Many towns are just not big enough to have a Courthouse so they share or they are located a town over. City Courts are in their cities but Town and Village Courts may be located anywhere.

Ulysses Court is in a small room, sometimes it's standing room only, and Mondays here are the "busy" Court night. I often go from here all the way back down to Ithaca, and then up on Route 13 to Dryden, which also has their busy Court night on Mondays as well. In the winter, depending on the weather it is not a fun Monday night. Court starts around 6 or 630 here, Dryden runs from 5pm till ?  As I like to joke, 5 till done (much like the BBQs).

                                                        10 Elm Street, Trumansburg, NY
                                         One Parking lot to the East of the Courthouse, and another
                                         right across the street.

Both Judges move the Courts along briskly here, and I think the small room size actually helps to keep things focused. Another bonus here, walking distance to Gimme Coffee, Red Dragon Chinese Restaurant, and New York Pizza (which unfortunately is closed on Mondays, and doesn't serve Coke or Pepsi products). They sell some "foreign" soda which POs my wife.

Within driving distance is The Falls restaurant (kinda like a diner) which has excellent home cooked food. Rustic wood, Down to earth, and very good.

Phone: 607-387-5411
Fax: 607-387-5843


PTCs scheduled as per the Judge.

Justice Thomas Schlee holds Court Monday evenings at 6pm.

PTCs: Pretrial Conferences (where the Asst. District Attorney is present) are on the 1st Monday of each month at 6pm. These can also be status conferences to see if cases are moving towards a plea or a trial.
The ADA here is Dan Johnson.

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

Please avail yourself of my online materials which include over 500 blog posts, dozens of articles, and over 470 informative videos on my youtube channel.

Wednesday, May 25, 2011

Ithaca Lawyer: The Defense of New York "City" DWI vs. New York "State" D...

Ithaca Cortland DWI Lawyer Challenges the Dirty Breath Test

Ithaca Cortland DWI Lawyer Stomach Alcohol and Breath Test Accuracy

Ithaca Cortland DWI Lawyer The Effect of Stomach Alcohol on Breath Tests

Ithaca Horseheads Lawyer: Mouth Contamination and DWI Breath Tests

Sunday, May 22, 2011

Ithaca DWI Lawyer Examines The Breathalyzer/Datamaster/the Box/The Breath Test/ The Chemical Test

Quite often I am confronted with a dilemma in my DWI cases, the question of how do I properly explain the breath test to a jury. Afterall, many people believe that this machine is accurate, is reliable, is accepted, and is the determiner of guilt or innocence in a DWI case. I have spent countless hours studying, analyzing, and dissecting this police tool of expedient-fast-cheap analysis of a person's breath.

The box spits out a number, a result, a reading and nothing more. I believe juries must look at all the evidence before they just buy the reading as a Truthful, Accurate, and Reliable number.

                                         The Datamaster DMT (used by Upstate City, Town, and Village Police)

The issues:

1. This machine does not check blood. It measures breath alcohol. It is a better screener (qualifier) than assessor (quantifier). It indirectly takes a breath measurement, and then gives a blood alcohol number.

2. This machine operates at 34 celcius. People do not all possess a breath temperature of 93.2 F (34 celcius) because not everyone is 98.6 F (body temperature).

3. This machine only requires (by current state law and case law) yearly calibration.

4. The machine only takes ONE breath sample, ONE time. There is NO confirmation of testing. This is another expedient NYS standard. Scientific-forensic standards be damned. We would never accept (one test-one result) this from a blood test, an MRI, or an X-ray but in the world of NYS DWI ths is the standard.

5. This machine is allowed a 20% range of error by law. The simulator solution (standard of known alcohol measure) can be .01 BAC up or down (higher or lower).

6. Contamination is not only possible it is probable. The inside of the machine is never cleaned unless there is a break down. This machine has lenses, mirrors, and filters. Hundreds of people breath into this machine. How common is dust, dirt, mouth chew, smoke, and an assortment of other expectorated particles? How clean is your average police station? This is certainly not a lab environment with standards of hygiene. Forensically this is a nightmare. Consider that the machine works (operates) by passing light through a tube filled with breath. Whatever light is absorbed by alcohol in the breath determines the breath alcohol number. If other substances (crap in the tube) absorb the light you got a bigger BAC.

7. They "clean" the tube with an air blank before and/or after your test. Can you really clean a tube with an air blank?

8. The machine self checks. It basically checks itself. Can we really trust and place our faith in a computer that has no outside checks?

9. The machine allows errors, and still gives a reading. If insufficient sample comes up on the machine display the reading is still used. What insufficient sample really means is that the machine needs (requires) 1.1 liters of breath to give a read BUT will often read without that amount. Smaller sample means more concentrated alcohol. Think of it this way, two glasses of milk, one bigger, one smaller, same amount of chocolate, the one with less milk is darker chocolate milk, one with more milk is lighter chocolate milk.

Lower BAC with greater air volume, and higher BAC with lower air volume.

The problem with machine defense is this, global atacks on breath testing are not usually successful. Breath testing is here, it is accepted, and it is used nationally. In each and every DWI defense breath testing can be successfully contested (challenged) if that particular breath test, on that particular day, and with that particular individual has an issue (s). Breath testing may be cheap, inexpensive, and easy but it is my mind far from reliable in the majority of cases.

A Comparison: Practicing New York City DWI Defense to Upstate DWI Defense

I just returned from Brooklyn, NY. I went to the First Annual MAN vs. Machine Seminar (What you need to understand the science of breath testing and the weapons you need to defeat it.) put on by The Legal Aid Society of the City of New York, and Steven Epstein, Esq. Steven is one of my co-authors on the new 2011 Strategies for Defending DWI Cases in New York  published by West-Thomson books.

The conference was held at St. Francis College. I learned a great deal from some incredible defense attorneys, and an expert on breath testing. Peter Gerstenstang, who wrote the main NY DWI text (the NY bible of DWI defense) spoke on opening statements, and cross examination of the police. Peter practices all over the state but his main practice is based in Albany. He has trained the police in DWI investigation (he has played both sides).

Getting a flavor for the diversity of police procedures, investigation, and techniques around the state enhances a defense lawyer's creativity. I often run across State police (troopers), Sheriff's police (deputies), and town/village/city/univeristy police (cops) who have been trained in different locations. I think it is a great advantage to know about the different ways they investigate cases, and by getting into their law enforcement mindset it exposes weaknesses in their evidence.

So the following are the MAIN Differences between Brooklyn (Kings County), Queens (Queens County), da Bronx (Bronx County), Staten Island (Richmond County), and Manhattan (New York County) DWI Versus Upstate DWI (this includes ALL towns, cities, and villages, everything outside of these five boroughs, or what I like to refer to as the "civilized" world):

1. VIDEO: They use video in the five boroughs. There is a recording of the testing (all the testing, both breath and sobriety) back at the station. Although it is not usually back at a station but at the IDTU (Intoxicated Driver Testing Unit), and here you might have thought that you were innocent UNLESS proven guilty.

Do we (or they) assume everyone brought here is already intoxicated?
What about calling it the driver testing unit?

Anyway, any good City DWI defense lawyer is going to spend 4 hours or more watching (studying/analyzing/detailing) the video in any DWI arrest in the five boroughs, this is mandatory for the defense of the case. Video can override a jury mindset of guilt based strictly upon a machine reading and/or a police opinion. The defense must point out, in other words "highlight," everything that is or is not on that recording. As they say, "What you see is what you get."

2. JAIL: For one reason or another they like to keep people in jail for DWI in the city. I thought they would be overcrowded but as a matter of course, you may spend more time than you would care to in these jails. Upstate you are out in few hours, generally, unless you are a flight risk or caused major damage or are a hardened criminal.

3. SOBRIETY TESTING: The police in the city IMHO play fast and loose on testing. They don't follow the STANDARDIZED TESTS. They don't even bother with the HGN (Horizontal Gaze Nystagmus), which is standard both literally and figuratively outside of the city. A City DWI lawyer could hit this hard at a suppression hearing and trial. Why don't they follow the standardized protocols? They were "trained" in assessing people fairly, weren't they?

So those are the main differences, and defense wise Upstate I only get an occasional video on my cases. It is often only of the breath testing, and it does not even have audio.

Supreme Court of New York, located in Downtown Brooklyn. I love exploring and comparing Courthouses.

Check out Moses with the tablets at the main entrance. So biblical in a Ten commandments kinda way, who heard of separation of Church and State, lol. I love it!

Giving the law to the people. No DWI law at this point in time, no cars. BTW New York State enacted the first DWI law in 1910, and the first "implied consent" DWI law in 1953. You had to consent to a test (of blood, breath, or urine) if you drove in the state or else your license would be suspended for one year. NYS was also the first to lower the BAC from .15 in 1972. The BAC was set to .15 in 1938.

We are very progressive as a state in some areas, and not so much in others. 14 states (and counting) have medical marijuana, but NOT progressive, liberal NY?
I walked across the Brooklyn Bridge on this trip. I grew up in Brooklyn, and never "walked" the bridge until this past week. I had gone over by train, bus, and car... never by foot. A great experience.
                                    Manhattan Courthouse. I love the words above the columns:

"The True Adminstration of Justice is the Firmest Pillar of Good Government"
All I can say is Amen to that!

Ithaca Lawyer Practicing DWI Defense in Elmira City Court, Chemung County New York

Elmira City Court is an Amazing Historic Building

Chemung county sits just a little South of Ithaca, NY, and it's a straight shot down Route 13 over hill and dale, so to speak. The great thing about going to Elmira besides the mall, and the wide assortment of restaurants (Ithaca has NO Olive Garden, NO TGIF, NO Red Lobster, NO Sam's Club, NO Macy's, etc. etc. etc) is the ease of Elmira City Court. They have two main Court rooms, and the pace here is brisk.
One of the Judges ran through an arraignment (initial appearance) so fast here once my head was spinning in comparison to the slower town courts.

Just last week I was here for a DWI PTC (Pre-Trial Conference), interestingly they keep you locked out from the Courtroom (one at a time here) for security reasons and there was no A/C running so it was hot. Apparently the A/C is set on a main timer, and it was not time for it to run. The Judge, the prosecutor, and I were sweating while discussing the case, it was comical, talk about cruel and unusual punishment.

Anyway, the beautiful old City Courthouse sits two blocks down from a DD (Dunkin Donuts), and a nice gas station so basic needs are easily met. There is usually plenty of on the street inexpensive meter parking. Just across the street, and a few blocks down is the Chemung County Courthouse as well.

                                               Beautiful Elmira City Court, I love this old building.

317 E. Church Street 
Elmira, NY 14901
(Corner of Lake & Church Streets) 
Phone 607-873-9520
Fax 212-401-9240
Hours of Operation:
Monday through Friday 8:30 a.m. to 4:30 p.m.

Judges' Chambers

Honorable Steven W. Forrest 
Honorable Ottavio Campanella

Chief Clerks

Chief Clerk

Deputy Chief Clerk
Casey Johnson
Phone:     607-737-5681

Chemung County Court. Just across the street and two blocks down from Elmira City Court.
Felony cases are processed here. Has a grand old Courtroom upstairs.

Located at:

224 Lake St

Elmira, NY 14901

Chemung County Judge: The Honorable Richard Rich

County Court Judge & Surrogate, Chemung County
224 Lake Street, P.O. Box 588
Elmira, NY 14902

(607) 737-2940

Chemung County Judge: The Honorable James T. Hayden

Secretary:    Greta Malone
Law Clerk:  Louise Herzl-Betz

County Court Chambers

Justice Building
203-209 William St.
P. O. Box 588
Elmira, NY 14902-0588

Fax 607-737-2913

 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

Please avail yourself of my online materials which include over 500 blog posts, dozens of articles, and over 470 informative videos on my youtube channel.

Friday, May 13, 2011

Questions About DWI Blood Tests: Do you have to? How long does it take to get the results?

Blood Corpuscles
from wold

"Out Out Damn Spot!"

Some of the DWI and DWAI drug cases I handle don't involve the taking of a breath sample to check for alcohol (and/or drugs) but of blood. I guess the first question some people ask is "do I have to give my blood?"

In other words, "do I have to consent?" In an accident with injuries in New York State the Police can demand a blood sample but in many other situations it is your choice. Just like you can refuse a breath test, you can also refuse a blood test.

You have a legal right to say NO! Just like they can not invade your home, they (the government) can not invade your body without your permission. Now refusing has consequences, they will involve a civil fine, a hearing to revoke your license, and a longer period of time with NO license.

The worst part of any Refusal DWI case is the loss of complete license privileges. This may not be a big deal for city dwellers but for those that live and work in the country (around these parts it's all country) it is a real hardship. For those that need a license to drive "for" their jobs it can mean termination of employment.

Second Issue is that the Court can not suspend your license without a BAC result of .08 or more. In fact the police can not even charge you with the "Per Se" DWI (for blood or breath) without a test result. You will only be charged at the outset with Common Law DWI (VTL 1192 (3)).

Blood tests take time to process, sometimes 4 to 6 weeks. So your attorney should not allow them (the Court) to suspend your driving privileges prematurely. They need to have a certified test result to do that. Although the Judge could use a catch all suspension statute (if he thinks you are a danger to yourself or others). In all my years of practice I have only seen this happen once.

Blood testing is not perfect either. The taking of blood usually involves civilians (not the police), and they do not always follow proper protocols and procedures (which are numerous and specific). Sometimes a blood case is easier to defend than a breath case depending on the circumstances.

Well enough about blood for one blog.

When Do the Police want Your Blood instead of Your Breath?

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 450 blog posts, dozens of articles, and over 440 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.


Sunday, May 1, 2011

Ithaca Cortland New York Criminal Defense: It's Equity, Equity, Equity!

You know how they say in real estate, "location, location, location?" Well in my mind sometimes I like to think "Equity, Equity, Equity" when it comes to criminal defense practice. I have cases where it just makes sense to bring up an equity argument and/or create an equity package. "Package" can include drug/alcohol evals & issues, financial issues, job issues, family issues, licenses, etc. Having and/or creating a tailored equity package is often crucial to your success.

So let's begin by discussing what equity is and what equity isn't. Equity is not well, "it's just not fair." Generally speaking the government (the prosecutor), the alleged charges, and the Court does not have to be fair (based upon your definition).

Equity is when a criminal or even non-criminal charge (because of it's nature) can affect certain people very differently because they come from different backgrounds, have professional licenses, and/or positions of employment/jobs where "the sentence" and/or plea to "that charge" would affect them dramatically different. NOTE: Some prosecutors have remarked to me, "equity smequity everyone is special," while others will openly entertain an equity argument.

Prime examples:

Violation Level Offense:

In a marijuana violation: The affect of a plea of guilty to this (non-criminal) charge could be the inability for SOME PEOPLE to be eligible for federal student loans and financial aid. This would not affect those not in college, not planning on attending college, and/or not receiving any federal aid.

Case example: Kid found with 4 oz. of pot btw thats alot of pot). I argue to the judge, and the prosecutor, with appropriate motions, and other proof that he is attending college, and receiving federal aid. Judge allows ACD (adjournment in contemplation of dismissal) motion, charges to be dismissed as long as he completes a substance abuse program, and one year with no new arrests.

Misdemeanor Level Offense:

In a DWI case: Someone with a professional license with a DWI conviction would be now facing an administrative professional license hearing, and the consequences resulting from that hearing because ANY criminal conviction in New York State would be considered an instance of professional misconduct.

Case example: Nurse found DWI. Equity package presented to the prosecutor. Judge allowed plea to reduced charge of DWAI (a traffic violation), no resulting "professional" license ramifications.

Case example: Military Sgt. facing a DWI offered a DWAI in full satisfaction based upon circumstances of deployment, drug/alcohol counseling, and prior service record.

Felony Level Offense:

In a DWI felony case: Felony convictions can sometimes cause termination of job, and destroy all future hopes of employment.

Case example: High ranking College professor with DWI felony. Equity package presented with other job information history offered a DWI misdemeanor in full satisfaction. The prosecutor offers, and Judge allows case to stay at the misdemeanor (local village) level.

Of course, these examples should be balanced by the others where the prosecutors and/or judges did not offer and/or allow reduced pleas to reduced charges. Every criminal case, situation, person, and circumstance is different. No one can promise and guarantee any result or outcome. No attorney can promise or guarantee a result.

I only promise one thing, that I will do my best to help those I represent and nothing more.

A Lawyer's View: Types of DWI "Innocence"

This blog post was inspired from a magazine article I recently read in a Criminal Defense Lawyers piece on innocence. The author had stated that he believed there were six stages or types of innocence, ranging from absolutely didn't do it, to justified for doing it, to didn't do all of it, or some of it, or based upon the definition of "it" didn't do it. I in my DWI mindset believe that DWIs have three main types of innocence.

1. I drank alcohol/consumed drugs BUT I was neither impaired (affected to any extent) nor intoxicated (incapable of safe/normal/prudent driving);

2. I drank alcohol/consumed drugs BUT I was not intoxicated but merely impaired;

3. I drank alcohol/consumed drugs BUT the test results are not accurate/truthful based upon my known consumption and use.

THE REFUSAL CASE: In refusal cases, it is largely a matter of "degree" between the lines of impairment and intoxication, in other words to what degree do we have affects to a person, if any. Can these affects/behaviors be "solely" attributed to the use/abuse/consumption of drugs and/or alcohol?

THE "PER SE" CASE: Based upon a BAC (blood alcohol concentration) either direct from a blood sample or indirect from a breath sample is this number/result to be trusted/believed/relied upon? In the context of behavior/driving is it consistent?

So these are the things I think on when I question/challenge legal guilt or legal innocence.