Monday, October 24, 2011

DWI Refusal Cases Can be the Better Gamble

I just finished off three DWI refusal cases, as in got them reduced. Reductions BTW are a big deal, especially in criminal law. Many prosecutors do not like reducing charges from level to level. Getting a Felony reduced to a misdemeanor or a misdemeanor reduced to a violation is often the big win.

Now before you glorify me, G-d forbid, there are a great many cases that do not get reduced, there are many cases that I have lost. Nobody wins all their cases. Anyone who says they do is not telling you everything. I have had clients after trial who were found guilty as charged of two DWIs (the common law and the per se). It doesn't feel good, trust me.

But that said, I like the odds, the chances with the Refusal cases. Yeah, no breath, no blood, no measurement!! NO NUMBERS, NO BAC.

The unique opportunity with DWI refusal cases is the administrative refusal hearing. It allows for cross examination of the police officer concerning the legality of the stop and the arrest. It can be a great beginning to gathering the evidence (all the facts) necessary to defending the case against intoxicated driving.

The hearing is for four main areas legally:

DMV Refusal hearing:
VTL 1194 (2) (c) : the hearing is limited to the following issues:

1. did the police officer have reasonable grounds (PC) to believe that such person had been driving in violation of any subdivision of VTL 1192?
2. Did the police officer make a lawful arrest ?
3. was such person given sufficient warning, in clear and unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made.
4. did such person refuse to submit to such chemical test or any portion thereof?
Was the refusal persistent?

Imagine a DWI refusal case with a stop for an equipment violation, Now I'm getting really excited, Why you ask?  Now we have a DWI case with no number, no BAC, and with get this... NO DRUNK DRIVING!

Gotta love it, a Drunk case with no drunk driving and no forensic evidence to prove blood alcohol. There are other things to consider but all things being equal, I like the odds better with these cases.
video

DWIs in the News or "Hey My Name is In the Paper"

Practicing criminal law and especially DWI defense in Ithaca and the surrounding Finger Lakes has given me a wider perspective on humanity. It's interesting that wider land mass with less people can create a more narrowly focused community. It seems like in each little town and village everyone knows everyone and of course every one's business. As they say, "getting up in my biz."

Newspapers publish the names and addresses (sometimes even pictures) of those arrested of DWI. While someone from Brooklyn wouldn't care, those who live and work with their neighbors may suffer from the embarrassment and humiliation of being labeled a "bad" person. Sometimes clients ask me whether they should tell (anyone) their employer, their spouse, or their insurance company about their DWI.

This may come as a surprise to some but legally you are innocent UNLESS proven guilty but in the Court of public opinion you are guilty TILL proven innocent. Can you ever prove your innocence about anything? It is after all proving a negative, that you did not do something. Hard as it may be to accept, you can not "make" anyone like you or change their mind once they have formed an opinion.

It is sad to say that even if your charges are reduced or dismissed, or you are found not guilty people will talk. That's what happens in small towns. I say move on, let the past be buried. They say that Time heals all wounds and I believe that that is true.

You Have Rights? Just Not So Much if You Are a College Violator

I practice in an area of numerous Colleges, Universities, and Schools of higher learning. Beautiful and now cold Ithaca, New York. Go 50 miles in any direction and you will hit pay dirt (lots of little private colleges).

Why do they put all these great schools so far from civilization? Is it the cheap real estate? Just saying...

Anyway, the Isolation sometimes breeds boredom. This Boredom leads to mischief which potentially leads to trouble. Trouble can be in one of two forms (there is a 3rd but I don't do relationship or mental counseling) criminal charges and/or administrative ones. Some schools like TC3 (Tompkins Community College) will suspend you (for a term) for a DWI. Some school police (campus po po) will sometimes file an administrative complaint against you rather than a criminal one.

Is this better?Is this worse? Well it's both.

1. The level of proof to demonstrate your guilt is higher on a criminal charge: Beyond a Reasonable Doubt
2. The level of proof to demonstrate your guilt is lower on a campus violation: Preponderance of the evidence (a little bit more likely than not, or 51% to 49% that it is true)

Sometimes it is better to have just a criminal charge, as in possession of marijuana. Then you get Full rights, an attorney, Court, Judge, etc. I once went in to defend my 6th grader, she was accused on putting holes in a cork board (yeah I know a cork board). There I was in front of four teachers and the principal. She was guilty until proven innocent. What BS! It was like the Salem Witch Trials. Apparently she was placing her pencil into prior holes (it was a cork board). I left them a piece of my mind and a short rendition of the constitution. They were unwilling to even consider the possibility that the teacher was mistaken.

 Anyway, criminal charges (a violation) may be better than having to deal with an expensive and emotional draining suspension from school, IMO. Add it up: Dorm, Tuition, loss/waste of time and work. This is definitely not "Priceless."

Remember, Administrative Campus Violations have their own process:

First, an administrative judicial officer hearing. "One on One."
Second, if you would like an appeal to a full hearing, in front of a board. (multiple members)

You can present evidence (witnesses, letters, etc.) at these hearings. You can speak up for yourself, and your conduct.

BTW, at these hearings: NO Lawyers, NO lawyer letters, NO lawyer coaching (at least open and obvious) are allowed.

From the IC book (they are all very similar, I just happen to have their's handy)

 The presence of an attorney and/or written materials submitted by an attorney in representation of his/her student client is prohibited.

What to do? Generally, Do not give up. Defend yourself. Gather evidence. If not of your innocence (maybe you are guilty), then of your character, then of your past success (academically, personally, etc.), teachers/professors can witness to bolster you as an individual, they can also write letters on your behalf.
Take it upon yourself to "Read" your college's rule book on these hearings, fully understand their process/their procedures, and what they allow you.

BTW This is not to be construed as legal advice, every situation is different.

I believe you still have RIGHTS! Any time and any place in the USA. If you are accused of something.

I believe you must Confront your accusers. Confront the accusations. Bring everything into the clear light of day. There is too much to lose to just give up.