Tuesday, August 28, 2012

Ithaca Lawyer New York DWI, Military Service, and The Price of Tea in China

I just fielded a call from someone looking for an out from his DWI. Who isn't?
Sometimes there is a great legal defense, a weak legal defense, little to no defense, ideas and creativity can run the gamut, from the very bad to the very clever and good. Most of the bad ideas are pretty memorable.

In this case he now wanted to join the Army. He figured if he was going into the military, that they (the District Attorney and the Judge) would cut him a break. As in, drop the charges.

Representation of Service People: Army, Air Force, Marines, Navy

Now I have represented many people who were either in the armed services or just recently out. Sometimes the fact that they have served honorably, are currently enlisted, or about to be deployed can make a difference with DWI (criminal charges) pending. I learned a lot about the Army (and other branches) representing these men and women.

What I soon discovered was shocking. I learned the full consequences of a DWI to a Sgt. or other person of higher rank. They could be administratively discharged, lose privileges, reduction of rank, pay (grade) cuts, loss of benefits, loss of security privileges/clearance, and other mandated punishments (exclusive to the military) called NJP (Non-Judicial Punishment/ Article 15). BTW Article 15 punishment can come even before you are found guilty under civilian law.

Members of the Military Face "THREE" Areas of Punishment

1. DMV license issues (in NYS and maybe even out of state)
2. Criminal Charges in NYS State Court
3. Military Non-Judicial Punishment (beyond civilan punishments/fines/fees)  

This comes from the Uniform Code of Military Justice. 

Two key points for service people: 

1. You can be punished in both military and civilian Courts for the same charges.
This is not double jeopardy.

2. The military standard for intoxication DWI/DUI is way easier to prove than the civilian standard. Just like Canada, intoxication vs. impairment or levels of BACs are of little consequence. Impaired = intoxicated driving (operation) AND is ANY amount sufficient to affect the rational exercise of your mental and physical abilities. 

Just last year I had an enlisted officer that I was able to negotiate a equity deal for on a DWI charge. He was just about to be deployed. He also had an exemplary past record of impeccable service coupled with a forthcoming tour overseas. These things tipped the scales of justice to his benefit. Not every case or every prosecutor or every judge will even entertain that argument but some may.

But in the case above, my phone caller was looking to game the system, he was looking to now go to a recruitment office and try and sign up. This was Post- DWI arrest not Pre - DWI arrest.

The Price of Tea in China

I told him, "what does this have  to do with the price of tea in China?" This old saying basically implies that his desire to now escape to military service (or join the circus) has nothing to do with his pending DWI charges. If this was the case then lots of people may want to join, enlist, or just plain take jobs in other states and say, "hey I have a job in California." I had a girl once tell a judge that she recently signed a lease for an apartment in North Carolina. He said, "so what, you have criminal charges pending in NYS."

Maybe my caller saw an old war movie where they offered convicted criminals a chance to either go to jail or go fight in a war? Either way, this is not his situation or a very good defense for his DWI.

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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