Sunday, May 22, 2011

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!