Monday, January 2, 2012

What Does a Lawyer Mean When They Say They Are "Challenging" the Evidence?

I recently sent a client an email letting them know that I was challenging the evidence in their DWI case. I had filed motions challenging the stop, the arrest, the police testing, their obtaining of statements, etc. They quickly replied, "what did I mean I was "challenging" the evidence?"

Simply put, Challenge = Confrontation. Confronting the government and their employees (the police, the district attorney) is often a part of what lawyers do. Confrontation arrives in TWO Major forms:

FORM #1

Filing Motions stating that the police procedures or methods followed were UN-constitutional. In other words in violation of your rights. Your right to be FREE from unreasonable invasions of your privacy, FREE from unreasonable searches, FREE from unreasonable seizures, FREE from using statements against you without first giving you Miranda warnings. These rights are all within the federal constitution, and have been adapted (interpreted to varying degrees) by the states.

Filing Motions stating that the District Attorney is acting against the laws of the state of New York and the Constitution. Maybe they are not providing discovery (police reports, evidence against you, breath test documents), maybe they are taking too long in their prosecution, or maybe they are violating a specific rule of law.

FORM #2

Requesting hearings to confront witnesses and evidence in the case. Hearings to contest (confront) the officer, deputy, or trooper who STOPPED the car without cause or reason. Hearings to contest an unlawful arrest. One made without probable cause. Hearings to see if certain evidence will come in (be able to be used) in the case against you. If evidence is obtained in violation of your rights it may not be used. ie. a breath test done with expired chemicals is disallowed and invalid. Hearings in NYS may have names based upon prior cases, like a Dunaway Hearing, Wade Hearing, etc.

BUT BUT BUT without challenge, without a motion, without a hearing, without someone saying and stating HOLD ON A MINUTE THERE! It (evidence) will come in and will be used against YOU.

In New York State criminal cases all motions, including requests for hearings, etc. must be all filed together in one large OMNIBUS MOTION within 45 days of the initial appearance/arraignment. There are other motions (like motions in limine) that can be filed but this is the biggie.

KEY TAKE-AWAY:   Remember if You DO NOT exercise your rights (and fairly quickly) you will lose your rights.

Kinda like muscles, without use and daily exercise, they shrivel, shrink, get weak, and small. Your rights function much the same way.

Lawrence Newman, D.C., Esq.
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850
607-229-5184
newman.lawrence@gmail.com

IthacaDWI.com