Wednesday, February 27, 2013

Using a Driver's Mental State to Disprove a NYS DWI Refusal?

Gotta Love Joaquin, from

Recently Coke launched an advertising campaign built on the power of their brand's OPTIONS. You can have your cake AND eat it too so to speak. The commercials highlighted people asking for things by using the "AND" word as a question? Clever, and a reminder that laws are written and applied using the same principle.

In the world of NYS DWI defense the word "and" has equal power and significance. Under our case law (remember NYS is a common law state) the definition of intoxication is defined, interpreted, and applied as "physical and mental" incapacity to operate a car as a reasonably prudent driver. The power of "and" strikes again.

The two prominent cases (without BACs) on how to define "intoxication" in NYS DWI are People v. Cruz, 48 NY 2nd 419, and People v. Bradford, 408 NYS 2nd 1013. Both these cases shed some much needed light on how the Courts apply this legal standard "to and in" the real world of mental and physical human conduct (behavior).

Without a BAC (blood alcohol concentration) from blood or breath a NYS DWI will need to be proved by the driver's behavior.

Three elements have resulted in convictions for DWI Refusal Cases:

1. Both have reckless driving that either resulted in an accident or could have (substantial likelihood)
2. Both have inability to lack of physical coordination (inability to balance, inability to walk steadily)
3. Both have lack of a rational mental state (can't answer questions intelligibly)

My focus in many Court hearings is on showing that my client was able to walk, talk, answer questions, and follow directions normally.

Rational mental state is a critical factor in disproving intoxicated operation and opening the door for a plea to impaired driving (VTL 1192 (1) DWAI Driving While Ability Impaired).

To assess my DWI cases I follow the same line of thought and reasoning as if assessing a patient's mental status. My Chiropractor days forever emerge in my proving a client's rational mental state at the time of driving, and disproving a DWI.

The Mental Status Exam

 The MSE is a clinical assessment process. It is a structured way of observing and describing a patient's (driver's) current state of mind, under the following categories:

1. Appearance (person and clothing)

Physical aspects such as the appearance of a patient (the driver), including manner of dress and grooming, and odor. Are they disheveled? Unkempt? Have they been rolling on the sidewalk/grass?

2. Attitude

This refers to the patient's (driver's) approach to the interview process and the interaction with the examiner (the police officer). Were they cooperative vs. combative, belligerent, angry? Or were they polite, respectful, and cooperative?

3. Behavior

The patient's (driver's) eye contact and gait (ability to walk). Did they establish eye contact? Walk, talk, and respond normally?

4. Mood and Affect

Mood: neutral, euthymic, dysphoric, euphoric, angry, anxious or apathetic (responsive vs reactive)
Affect may be described as appropriate or inappropriate to the current situation
Was their mood and affect normal to the police investigation?

5. Speech

Was their speed understandable and normal? This is the production of speech not the content of their speech.
Police love to state in their reports (narratives) "slurred" speech BUT was their speech unintelligible? 

Break down their speech into the following categories:

·         Rate of speech: Rapid, slow, ordinary
·         Flow of speech: Hesitant, expansive, rambling, halting, stuttering, lilting, jerky,
long pauses, forgetful.
·         Intensity of volume: Loud, soft, ordinary, whispered, yelling, inaudible.
·         Clarity: Clear, slurred, mumbled, lisping, rambling, relevant, incoherent.
·         Liveliness: Lively, dull, monotonous, normal, intense, pressured, explosive.
·         Quantity: Responds only to questions; offers information; scant; mute; verbose, repetitive.

6. Thought Process/Pattern

Was their thinking in proper quantity, tempo (rate of flow) and form (or logical coherence) of thought, retarded or inhibited thinking?

Thought Patterns

·         Clarity:  Coherent, incoherent, cloudy, confused, vague
·         Relevance / logic:  Logical, illogical, relevant or irrelevant to topic being discussed.
·         Flow:  Excited, flight of ideas, tangentiality, poverty of thought, word salad, clang associations, slow, normal or rapid reactions to questions, doubting, indecision, loose association, blocking, perseveration, spontaneous, continuity of thought.

7. Thought content

Were their responses to questions, instructions, and directions appropriate?

8. Perception

There are three broad types of perceptual disturbances: hallucinations, pseudohallucinations and illusions.
Was there any distortion of the patient's (driver's) sense of time and place?

9. Cognition

What was the patient's (driver's) level of alertness, orientation, attention, memory, visuospatial functioning, language functions and executive functions

 Alertness is a global observation of level of consciousness i.e. awareness of, and responsiveness to the environment, and this might be described as alert, clouded, drowsy, or stuporose (in a stupor, daze).
Orientation is assessed by asking the patient where he or she is (for example what building, town and state) and what time it is (time, day, date).
Attention and concentration are assessed by the serial sevens test (or alternatively by spelling a five-letter word backwards), and by testing digit span.
Memory is assessed in terms of immediate registration (repeating a set of words), short-term memory (recalling the set of words after an interval, or recalling a short paragraph), and long-term memory (recollection of well known historical or geographical facts).
Visuospatial functioning can be assessed by the ability to copy a diagram, draw a clock face, or draw a map of the consulting room.
Language is assessed through the ability to name objects, repeat phrases, and by observing the individual's spontaneous speech and response to instructions

10. Insight

Ability to understand and follow thought patterns and now where things are going. Proper anticipation and participation. 

11. Judgment

The patient's (driver's) capacity to make sound, reasoned and responsible decisions.

We as DWI defense attorneys must overcome the hurdle of dis-proving Lack of rational mental state by exploring on cross examination of the police each of these areas.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY