Saturday, April 20, 2013

Why am I in Love with My New Faucet? The Cagney and the New York DWI Refusal Case

They say "Moen for life" but I've had three Moen faucets (kitchen plumbing fixtures), and nothing but issues. So I jumped ship to a brand called, Pfeister. The things that I seem to love most in life are both simple and elegant:

Dark chocolate
My wife
A great faucet
and the New York DWI refusal case

THE Cagney
Please don't call it a faucet, it is a water station!

First my new faucet (I meant to say water station), I'm even kinda glad that the old one died on us. This kitchen faucet is like the iphones of faucets. It has a beautiful and simple design. I love looking at it at different times of the day. Shapely and curvacous. To turn it on is so smooth it makes washing dishes an experience.

The Simple Refusal Case

One of things I love about the New York DWI Refusal is we usually have only one criminal charge,
the Common Law DWI, VTL 1192 (3) to deal with. Simpler yet, they (the police) must by a degree beyond a reasonable doubt prove:

Intoxication NOT impairment

Impaired and intoxicated, when does the one become the other?

Gradually by steps, cumulatively, we can add behavior up or distract it down for in the end or as some love to quip "at the end of the day" it is merely, AN OPINION. Nothing more or less than that. How much value or weight a jury or judge gives to a behavior or an appearance or the driving is a matter of perception. 

Odor of alcohol tells us nothing but the consumption of alcohol.
Bloodshot, watery eyes mean nothing without a baseline of appearance or a time of day.
Incoordination on roadside agility tests are all up for interpretation.

Lawrence (Larry) Newman
Attorney and Counselor at Law
Doctor of Chiropractic

504 North Aurora Street
Ithaca, NY 14850


Finding the New York DMV DWI Refusal Hearings at 310 Town Center Road, Painted Post, NY

Where is 310 Town Center Road, Painted Post, NY?

Imagine it's the day of your hearing and you can't find the Court, or the Courthouse. It happens more often than you can imagine. Things change but sometimes google maps and the internet just doesn't catch up.

New York Department of Motor Vehicle DWI Refusal Hearings are held at locations different than the criminal proceedings. They are administrative in nature, and not criminal matters so they do not require a criminal court or courthouse. Tompkins County and Cortland County DWI criminal cases hold their hearings at the Cortland County Courthouse.

Erwin Court House, Village of Painted Post, New York
"Old" location of the DMV hearings
Erwin Town Court vs. Erwin Town Hall

The DMV hearings were held at the Erwin Court house at 117 Water Street, in the Village of Painted Post, New York for many years. These hearings were moved to a brand new location about two years ago. Now they are held on the other side of town in the new Erwin Town Hall at 310 Town Center Road, Painted Post, New York.

Tioga County, Steuben County, and Chemung County DWI criminal DMV Refusal case license hearings are held in Painted Post, New York at 310 Town Center Road.  So if you have a DWI refusal case pending in the City of Elmira or the City of Corning or Horseheads, Your DWI refusal case DMV hearing is going to be held here.

Erwin Town Hall, West of I-17/86
DMV DWI Refusal Hearings are held here.
At the Erwin Town Hall not the Erwin Court

The Problem Solved 

Google maps and google still bring you to 117 Water Street, when seeking (searching) 310 Town Center Road, Painted Post. Do not try to search for the Harley Davidson dealership or the Fox Chevy Buick Cadillac dealership in Painted Post because they both will take you to the Village of Painted Post as well. Both dealerships are right next to the new Erwin Town Hall building. If you want to google search use Robert Dann Drive, Painted Post, NY

BTW Erwin Town Hall is a beautiful, modern building, and the DMV hearing room is huge with comfy chairs.

I guess Town Center Road is fairly new, but you would think after two years, it should be on google maps and your GPS but unfortunately it is NOT!

If coming from the East, take I-17/86 to NY 417/South Hamilton Street, turn right onto Town Center Road. Go straight to the end of the road.

Winning The NYS DWI Refusal Case, here:

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.

Supreme Court Rules No Way on Unconsented / Unwarranted DWI Blood Tests

The Nine Justices of SCOTUS
Rule 8 to 1 on Police DWI Blood Cases

Well before it got to the highest court in the land, a driver in Missouri pulled over for DWI refused a breath test. So the angry police officer took him to the hospital, and directed a nurse to take his blood.

This was without his consent (permission) and without a search (court) warrant from a Judge. Going back to our 4th Amendment to the Constitution: NO Unreasonable Search and/or Seizure.

So the case went all the way to SCOTUS (The Supreme Court of the United States) to decide the:

Question: Can police in a DUI/DWI take blood (your body fluids) without a search warrant?

This is not a new question, if fact this is an old question BUT the police were looking for (more like hoping for) a NEW answer from the nation's highest court in 2013.

Yes the District Attorney screamed this is a DWI/DUI case so let's trample the Constitution, the prosecution argued in their favor (to get the blood) that alcohol leaves the blood stream quickly.

The Loosey-Goosey Two Hour Rule

Even though they have two hours in New York State to get a sample, and even if they do not get it in within the two hours it can still be used against you. Only it will have less weight on the scales of justice. That is the new case law, in the past it was suppressed, NOW we let a jury give it "weight" as in credibility. Remember we have Driving WHILE Intoxicated. So if the "while" is longer and longer from the actual test, it's relevance and accuracy become more and more questionable. Amen!

The Court ruled 8 to 1 against taking blood samples without a warrant, NO WAY they said.
No warrant = no blood = no breath = no sample of your fluids. In the end the Missouri driver with a .14 BAC had the blood test thrown out ie. suppressed from being evidence.

You want it, they told the police and the prosecutors, then you have plenty of time to go get a search warrant from a Judge. Follow that 4th amendment.

Thank G-d.

Dr. Lawrence (Larry) Newman

Attorney and Counselor at Law
Doctor of Chiropractic

504 North Aurora Street
Ithaca, New York 14850

Can You Win a DMV DWI Refusal Hearing? Nothing Ventured, Nothing Gained!


You know the old expression, "nothing ventured nothing gained." If this isn't an AMER-I-CAN philosophy then I don't know what is?

Well it is as applicable to DMV license refusal hearings as it is to asking a girl for her number (sorry I'm old school). I wouldn't be with my lovely wife (25 + years) if not for going up to her, and her friends. She towered over me with her shoes (she's 5'9, me 5'6), and my confidence won her over.

I had a guy call me the other day, and tell me that his attorney told him not to even show up, why bother, you are going to lose anyway, right?  His attorney could not be more wrong. The hearing is good to attend, and to be prepared for on many levels:

1. You will definitely hear "how" the cop plans to testify about you
2. You will learn how they plan on proving that you were intoxicated (odor, field tests, coordination)
3. You will be able to challenge some of the evidence (their opinion)
4. You can point out any issues with the police safeguard procedures (4th, 5th, and 6th amendments)
5. You can make a record (they are taped) of any of this and/or bring a Court Reporter
6. You can have your client testify on their behalf about medical issues
7. You may be able to get some pre-trial discovery (police report)
8. Your attorney may even get the cop on your side with the ADA to help your case

Over the years I have developed working relationships with many troopers, deputies, and local police. These people appreciate cooperation and respectfulness with law enforcement. A good word from them with the ADA may mean the difference in reducing charges or penalties.

I have won some hearings because the police have the burden of proof. They must state on the record their reasons for the stop, the arrest, and how they processed you. How they warned you? How they explained your rights? If they did not follow procedures properly then the refusal can be thrown out, you win and they lose.

In the end, the hearing can be a WIN in many other ways than just your driver's license privileges.