Tuesday, June 26, 2012

The Picky Lawyer, the Lazy Eye, & The DWI Refusal Case

I guess my picky personality doesn't always benefit me in my personal life ie. marriage. Who wants anyone being right all the time. Yeah I won the fight but lost the war. My wife told me early in our marriage don't be an attorney with me, She is a wise woman.

Where being picky does serves me is in my role as a defense lawyer. Because I can be a consummate PITA (pain in the a---). I look for holes, gaps, problems, inconsistencies, and issues with what people may do or what they say.

The Refusal Case is Purely an Opinion Case

Police sometimes overreach in what they report. This is a grand understatement. In a DWI refusal case their OPINION evidence is what can convict my clients. The attack on their DWI investigation (their opinion) is on multiple levels.


The three main tests, the ONLY STANDARDIZED FIELD SOBRIETY tests are:

1. walk and turn
2. stand on one leg
3. HGN (horizontal gaze nystagmus)

What is Standardized?

Standardized means they must be given, instructed, demonstrated, and scored in a specific way to be valid, and accurate. Every officer, trooper, and deputy must follow protocols. They can't just make stuff up.

So anything I can do to pick apart their methods, their testing, and their investigation is open game. I am a stickler in keeping them honest.

The Lazy Eye

I recently had a lazy eye case DWI Case. My client informed the officer multiple times he had a lazy eye. Naturally this should have placed the officer on guard or at least influenced him to re-think giving the HGN test.

The Police Manual
Procedures & Protocols

The HGN relies upon a normal, healthy, and fully functioning pair of eyes. In fact the manual, the U.S. Department of Transportation Standardized Manual (DWI Detection and Standardized Field Sobriety Testing) states that before giving this test they should ask questions about eye disorders or problems.
People that have issues with their eye anatomy, eye physiology, or have an eye disease may not be the best candidate for this particular test.

They (the police) should check for equal tracking of the eyes. These are police NOT doctors, optometrists, or optholmologists.

What if 3 Becomes Only One or Two?

So the work up of this case included lots of cross examination in this area. Think about it, 3 main tests, what if I topple one of the three? Then I am left with 2, two that are dependent on muscle coordination and balance. How many of us have two left feet? How many of us can perform physically under pressure at the roadside? These are the main base of their opinion, their foundation for proving not just impairment BUT intoxication.

It's all a Matter of Degree

In NYS what is the difference between impairment and intoxication? 

Under NYS law in BAC terms, .08 is Intoxication and .06 to .07 is a presumption of impairment.
But if we have no BAC, then what? Purely OPINION! Purely words, the spoken word of the cops.


Intoxication is a Criminal misdemeanor   NYS DWI VTL 1192 (3)
Impairment is a traffic offense                  NYS DWAI VTL 1192 (1)

Bottom line = You are a criminal with a criminal conviction.

The How to "Nuts and Bolts" of Being Picky

Here is my work up of this lazy eye section (not all hashed out but enough to give you an idea of my thinking) of cross of the cop. I love when the police get into anatomy, science, and biology. My past experience and training as a Chiropractic Physician come into play with many DWI and personal injury cases. You want to diagnosis conditions get a degree, lots of training, pass some boards, and get a license otherwise go home.

MY Lazy Eye Cross Outline (a work in progress):

In your training/ certification

You asked him if he has any medical condition
Eye condition

HGN test

Did you follow all the pre-procedures bf the HGN
Chk for equal pupil size
Resting nystagmus
Equal tracking (following an object together)
Ths is the chk for medical impairment
Medical disorders
In your report 
You said he didn’t have a lazy eye (you can't always see a lazy eye)
(lazy eye is really a lazy brain- the eye and the brain are not working together properly)

After he stated it to you twice
You were trained in dx of lazy eye (of course not, he is a cop not a doctor)
Can you always see a lazy eye (he thought he could)
Isn’t it a visual disturbance problem
A lazy eye is a brain disorder
The eye can appear normal (he didn't know this or reflect this in his report) 
Are you aware of the types of lazy eye
In your training/certification

Lazy Eye and Strabismus are not the same condition.
a person who has a crossed or turned eye (strabismus) has a "lazy eye,"
but lazy eye (amblyopia) and strabismus are not the same condition.
Amblyopia does not equal a visual/apparent misalignment

strabismus can cause amblyopia.
Amblyopia can result from a constant unilateral strabismus (i.e., either the right or left eye turns all of the time).

While a large eye turn or deviation (strabismus) is easily spotted by the layman, amblyopia without strabismus or associated with a small deviation is usually not noticed by parents or pediatricians.

In manual/training

If the eyes do not track together   it may indicate an underlying medical disorder
This underlying disorder can cause the nystagmus that is present

If the eyes are unequal in size 

Where Do We Go From Here?

It (the cross outline) goes on past here but you get the idea. A specific focused attack upon their faulty investigation, and it's issues (weaknesses) can yield a weak intoxication opinion overall. If the driving is terrible I have more to overcome but with fairly good driving or NO bad driving well I am getting there.

The drop of water upon the great rock may mean nothing. But what if I keep dropping water over and over, it will eventually wear down the rock. Little by little things are won or things are lost. There are few home runs in criminal defense law and most especially DWI refusal cases. 

Cumulative Small Things Add UP +++ Big Time

IMHO  It is all base hits, it is the field game, the running game, a matter of yards or sometimes even feet to win at this game. 

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850


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