Round One: Trusting NYS Motorists vs. Leery New England Motorists
The New York DWI refusal (no breath or blood BAC test) case is unique. First off, NYS is not traditionally (historically) a refusal state. We have about a 7% refusal average as compared to New Hampshire (the Live Free or Die State) with about a 90% refusal rate. Why is this? The people of New England (Massachusetts as well) mistrust the breath test or any government (police) test for that matter. New Hampshire also has NO mandatory car insurance, NO mandatory motorcycle helmets, and NO jury trials for first time DWIs.
How does a NY lawyer know these things? Well hang out at enough national DWI/DUI seminars, breath test certifications, blood seminars, field sobriety programs, etc. and you meet people from all over the country. You compare notes, and exchange ideas.
Round Two: What I learned from the New Hampshire DWI defense lawyers (refusal)
Remember they try alot of DUI refusals...
If you have a good "D" in a refusal case you are half-way home. The "D" in DWI is the driving. In DWIs the police have to first stop a car for PC (probable cause), ie. a valid reason.
If the reason is an equipment violation (broken lights, muffler, registration) = NO Bad (drunk) driving
If the reason is speeding = Maybe fast driving (a violation) but NOT necessarily drunk driving
Then we have a drunk driving case with no drunk driving.
BTW Drunk driving is usually the swerving, failure to stay in lane, wide turns, narrow turns, all over the road type of driving people think of when they think of DWI/DUI
If this is a Refusal case with NO BAC (blood alcohol concentration) and then we have eliminated the "D"then what we have left is #3:
1. NO BAD DRIVING
2. NO PROOF OF BAC (NO Sample of blood or breath)
3. What is the Proof of Intoxication?
Now we have left the government (the DA) to prove their WHAT (the "I" of intoxication) with only the police officer's opinion.
This opinion based on highly subjective field testing (walk and turn, one leg stand, Eye test) and/or
opinions on what they smelled, heard, and saw.
What "drunk" behavior did they observe? What good behavior did they observe?
Was it all "intoxicated" behavior? Was it a DWI?
Or was it "impaired" behavior? Was it a DWAI (driving while your ability is impaired)?
Round Three: The Refusal DWI Success or Failure is Always a Matter of Degree
Now we are at the crux, the crossroads of the DWI refusal case, it is all a matter of DEGREE.
What is the real difference (s) between an impaired person and an intoxicated person?
Where does highly impaired then become intoxication?
Ultimately, Where is this DWI/DWAI threshold?
NYS says it is when the motorist is IN-capable of mental and physical operation of a car as a reasonably prudent (careful) person.
These NYS refusal DWI cases can be highly defensible. If they have the proper elements in place then success can be a matter of focus and attention to detail.
Dr. Lawrence A. (Larry) Newman
Doctor of Chiropractic
Attorney & Counselor at Law
504 North Aurora Street
Ithaca, NY 14850