Sunday, October 27, 2013

Ithaca Lawyer Takes Apart a DWI/DWAI Case: The Police Narrative's White Space

My future as an older, wiser man sans turban.

Getting older (more mature) has it's advantages, and it's commiserate obligations. I recently had a younger lawyer ask me to assist them with a case. I told them to bring over the discovery documents, specifically the Police narrative. The narrative is really the police report. It is the detailed and specific DWI investigation. At least in theory, it should be accurate, complete, and truthful. What we usually have is a law enforcement biased perspective to support an arrest decision.

Nothing wrong with any of that, just the beginning of presenting a criminal defense challenge or challenges to their case.

I start my defense by looking at the Police Phases of the DWI Investigation one at a time:

The Driving: Do we make a stop of this car?
The Stop: Was it appropriate and safe?
First Contact with the Motorist: Do I ask them to step out of their car?
Sobriety Field Testing: What tests should I do? How did they perform? Do I arrest for DW?
Post Arrest Testing: Which Chemical tests (breath/blood/urine) do I request?

Dogs driving are "almost" as funny as cats

The BIG D in Every DWI/DWAI Drugs Case

The first step I take is to look at the report for the driving. The big D as I like to say is the first key to any DW case. This is after all a DW case meaning they (the prosecutor/the police) have to have impaired, intoxicated, erratic, drunk, drugged, and/or problem driving. In this case, I pulled out our google map, and traced all the driving. The police got their East, West, North, and South all mixed up. They followed this guy for many city blocks. It went on for block after block after block and turn after turn. Guess what? The stop was for an expired inspection and registration.

My first BINGO: No bad driving, in fact no hint of improper lane changes, or bad turns, or speeding, or any erratic driving behavior. This was a DWI/DWAI drugs case with might I say, "perfect" driving.

My second BINGO: The perfect stop of the car. The police put on their "take down" lights, and there was no mention in their report of any issues with the STOP. Meaning, the car pulled over to a safe spot on the roadway, smoothly, parallel, and without issue. We call this exploiting the WHITE SPACE.

Criminal Defense Lawyers LOVE White Space too!
from white_space_by_jeffheaton.jpg

What is White Space?

White space is everything NOT mentioned in the report. All that is blank and unmentioned i.e. left out is normal and appropriate. Meaning since they did not comment in the negative, so it must have been good and positive.

More white space, the police then mentioned they requested his license, insurance, and registration. But in their report they never mentioned if he was able to produce them or show them. So another feather in my cap of innocence, he must have been able to produce them otherwise they would have harped on and on about his inability to produce these documents.

Well, that was our beginning. It even got better from there but I will leave that until this pending case is fully resolved. My legal opinion is that this is NOT a DWI case or a DWAI drugs case. This case is a complete nada for the prosecution. Except for the non-moving violations, this is a very weak DW case.

I would take this case all the way. Game on! It would be fun to have hearings, and a trial if necessary. It is a great case to defend.

Unfortunately, they don't all turn out this way. I have people who run at the mouth, who have huge BAC numbers, who get into accidents, who have drugs in their cars, go up onto sidewalks, and fall out of their cars. Those are not cases to take to trial. Long shots at best.

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

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 435 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.