Thursday, December 1, 2011

Ithaca Cortland Lawyer "You have Rights, Privileges, Not so Much."

A NYS DWI arrest affects a number of things in your life. One of the things many of us take for granted is our ability to drive. People don't consider that driving is not a RIGHT but a PRIVILEGE.

DWI cases are where the world of criminal law (RIGHTS) often intersects and integrates with the civil world of PRIVILEGES. Privileges are things like licenses. A license in it's simplest terms is merely a permission. It is an allowance. You are allowed to do something. There are licenses to practice professions, and there are licenses to go on a person's land, and there are licenses to drive certain types of vehicles.

TAKEAWAY: The key thing to remember about all licenses is that they are more easily lost (ie. taken away) and suspended than a right.


LICENSES are held to an administrative standard or burden of proof. It is a little higher than the preponderance of evidence standard of "more likely than not." Some call it "substantial" evidence. This is NOT the criminal burden (standard) of PROOF beyond a reasonable doubt.


The three pivotal rights in DWI cases are set in the 4th, 5th, and 6th amendments (The Bill of RIGHTS).

- 4th: Right to be free from "unreasonable" search and seizure.
TAKEAWAY: In DWI cases, you need Probable Cause for a stop, PC for an arrest.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

- 5th: Right to remain silent. In DWI cases you can't be forced to testify.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

- 6th: Right to trial.

In DWI cases, you are to have a
A RIGHT TO a speedy, public trial, with an impartial jury,
A RIGHT TO confront witnesses (the police officers, troopers, deputies), and
A RIGHT TO present evidence (toxicologists, doctors, breath test experts, eye witnesses).

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

Understand the crucial differences between your rights and your privileges. Awareness of your protections and safeguards (under the Constitution), and what you may be "entitled" to with the DMV helps you to prepare.

Administrative license hearings may allow many of these things, like confrontation and presenting evidence, but IMO they are diluted and of course held to a different (lower) standard. Administrative (license) hearings allow Hearsay, allow the admission of reports (against you) without the ability to confront witnesses, and almost force you to testify to defend the case against you. You can not sit idle in these types of situations.

Larry Newman, Ithaca Lawyer, 607-229-5184