Wednesday, October 9, 2013

Cortland Lawyer The Art of DWI Subtlety: Small Details Can Mean Big Things

Subtlety Can be Difficult at times

Matters of degree, subtle shades of grey, may be hard to distinguish but oh so costly to miss.

Webster says: "Subtlety is when a detail may be important but NOT obvious."

A small degree of difference between this and that legally can turn a matter from blessing to curse or vice versa.

The TWO Different New York DWIs

There are two distinct types of DWI charges: One is based strictly on opinion based on behavior (conduct) and the other found in a specific BAC (blood alcohol concentration) either through blood or breath testing.

If you take a Chemical test of your blood or breath in NYS you will be arrested and charged with both of these DWIs. At the end of your case they will likely be condensed to one charge, even DWIs with three or more charges will likely plead down to ONE final charge. Often the ADA (assistant district attorney) will not care which particular DWI (common law or Per se) you plead to, so does it matter?

Sometimes neophytes, especially newbie lawyers or newbies to DWI, like to say "it doesn't matter" or "I don't see a difference." I don't see the difference between pleading guilty to DWI common law OR DWI per se (BAC .08 or more). They are both misdemeanors, and have similar punishments. To many lawyers, they are equal, but are they? I am the fly on the wall at so many legal hearings and proceedings watching and listening. I am forever teacher and student trying to learn something new every day.


Well it does matter, and I will tell you why it may be of consequence in the future.


1. We live in a world where people move.

You are likely to move many times in your lifetime. In the United States, 40 million people re-locate every year. Based on current statistics we move once every five years on average. We move because of divorce, corporate transfers, graduation from college, death, financial changes, unemployment, marriage, etc.

2. You will likely have more than one driver's license in more than one state over your lifetime.

The internet has become a dominant part of our lives, it is a tool of big business and the government. Everything about you: your complete "history" will not remain a mystery. Your driving history, credit history, employment history, and arrest history will be with you for a lifetime. It will follow you from place to place. This is the reality of our times. There is now a NDR (National Driver Registry) which is under federal law. No state DMV can issue a license or renew a license without checking you out nationally.

3. Insurance companies will base their rates upon your life history.

Risk management and appropriate assessments are big business. They want to know about you and they will be scrutinizing you more strictly in the future.

So what should YOU do? 

I believe that in the case of a DWI, it is better to move with NO BAC Number on your DWI arrest, charge, and final disposition.

Some states can use it (the number) against you in a future proceedings if you are unfortunately arrested again for a driving while type of offense. With a common law offense there is no number so the degree of misconduct is rather vague. In some states, this may mean the difference between your being UP-charged to a higher level crime, in New York we call this "enhancement." A second DWI (within 10 years) in NYS is a felony level offense.

To avoid potential enhancement in the future it is a small thing to have your attorney guide the ADA and the Court to move forward with the common law DWI plea.

Future Administrative as well as Criminal Consequences

I have seen instances where this can also affect future administrative (license) actions in another state. Some states base their license sanctions on a BAC number. Some will punish more for a higher number. In New Jersey, it is may mean more days of a license being suspended.

In NJ, with BAC of under .10 it is 90 days, while those with a .10 BAC or over it is 210 days. Maybe this is not a big deal in New York State because we award people conditional license privileges with DWIs, NOT so in the Garden State. You will have NO privileges to drive with a DWI/DUI license suspension there.

If there is NO BAC number, it is likely that a future Court/Judge/State/Agency will give you the least of their punishments or license sanctions, just as our NYS Aggravated DWI .18 BAC or higher charge may have them prejudging (labeling) you as a habitual alcoholic. It is also likely they will not be able to substantially relate it to one of their BAC number DWIs.

Sometimes things of value only require out time, focus, and attention.

If you have questions about your DWI/DWAI charges within the Finger Lakes region you can either call me or send me an email.

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 95% 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 425 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.


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