Tuesday, August 27, 2013

Ithaca Lawyer Why Get a DWAI Violation Letter of Explanation (legal opinion)?

  • Teacher Certification
  • Doctor and Professional Licensure
  • Employment Positions with Responsibility and Authority

Fingerprints are only the beginning from apostilla.com

All of the above will likely require an FBI background check. Many will want much more than that. Many will want an interview and/or hearing to explain any of your baggage. "Baggage" as in history that can impact you negatively or can cast you in a bad light. We are all human, and unfortunately we may or may not have unpaid student loans, divorce, child support arrears, litigation, bad credit, criminal and/or non-criminal offenses, prior drug and/or alcohol use, plus, plus. He who is without priors can throw the first stone, we all have some baggage (me included).

You don't truly know who you are until they bring up every thing you did wrong over the course of your life. Many boards and organizations go on the proverbial witch hunt. I have sat in front of these inquisitors. Much like the Spanish Inquisition, it is not fun or pretty to watch, worse to be in the cross hairs. I have gone through four state Bar lawyer admission background checks. They go over your entire life history, every state you have ever lived, every license you have ever held, every job you have ever worked, every loan, and every re-payment or non payment, every lawsuit filed by you or against you, and on and on. Hours of questioning if you have ever lived or made a mistake. If you are not perfect be prepared to explain why?

2013 The Chinese Year of the Snake, OR is it the Year of Explanation?  

This year more than any other I have been asked, and have wrote more letters explaining DWAI than any other. The violation of New York DWAI, VTL 1192 (1) is unique. It is not the general DWI or DUI that many think about for a number of reasons. Remember that most states in this country do not have a lesser included non-criminal offense of driving while. It just does not exist in their law.

NYS Driving While Ability Impaired by alcohol is NOT a crime.
NYS DWAI alcohol, Vehicle and Traffic Law 1192 (1) is a violation.
If your are convicted of, or plea guilty to NYS DWAI you do NOT have a criminal conviction on your record.

The Why, Who, and the What?

Why get a letter?
Who needs a letter?
What is the primary purpose of a letter of explanation?

First, the BIG WHY?

A FBI background check of your criminal history will show any and all violations, misdemeanors, and felonies from any state but it will not show any level of these offenses. It does not indicate whether they were classified by a state as a summary offense or violation (both non-criminal). In PA and NJ they have summary offenses (non-criminal) dispositions similar to the New York State Violation.

Getting a certificate of disposition from the Court or the County or the state of record can indicate a level. Then an attorney licensed in that state can render a legal opinion letter indicating the level of the final disposition.

Second, WHO needs such a letter?

Someone with a summary offense or a violation may desire to give their situation context. Show it was a non-criminal offense, maybe even indicate they are now rehabilitated, and that they have never been convicted of a crime. Someone even with a misdemeanor may want to show it was not a felony level offense. Anytime you present to a job, a position of trust and responsibility in this day and age you will likely be checked out thoroughly. A teacher, a doctor, a management position will all necessitate a criminal background check.

Two recent examples:

A teacher with a 25 year old DWAI presented to a job. She stated that she never had a criminal conviction, and was subsequently fired for lying on her job application. The FBI check revealed the non-criminal DWAI from NYS but it had NO explanation. I did a letter for her future jobs.

A doctor from Pennsylvania with a 15 year old new York State violation (not a DWAI) called harassment 2nd. They were originally charged with a NYS Felony reduced to a non-criminal violaition. The PA District Attorney would give a break to them on their new (recent) crime if this old offense was really NON-criminal (no prior criminal convictions). His reading and his PA lawyer's reading of the record was not enough proof. My letter of legal opinion with the interpreted NYS statutes and NYS sentencing furnished the proof for another NON-criminal disposition in PA.

What's the primary purpose of the Attorney letter?

The primary purpose of a letter from a NYS attorney is to give the requisite proof and interpretation of the law. Coming from an objective source that is merely giving the opinion to clarify the prior situation is usually welcomed by others within the field of law. An expert opinion only helps all of the parties to understand the complete picture and make an informed decision about or concerning an applicant. It is often welcomed by interested parties. People love reasons to give and award stuff.

Today there is intense scrutiny of people in the new world of internet technology. Companies, licensing boards, and certification committees want assurance that their choices don't come back to haunt them at a later date.

An attorney letter of opinion and/or explanation, with the review of documents and records can cost as little as $500. This will depend upon the level of time and effort involved. The true cost of approval and validation to a job applicant or candidate may be priceless. The long term value of a license, a job, or a position can only be assessed by you.

Over the last 27 years, as a Chiropractic Physician, and then as an Attorney I have testified, counseled, and advocated for patients and clients. I am licensed in four states, PA, NJ, NY, and FL. If you have a question about how a prior offense can impact your future and/or career feel free to give me a call or send me an email.

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

Doctor or Chiropractic
Attorney and Counselor at Law



Ithaca Cortland Lawyer Is Your DWI Arrest Record Online Forever?

Your mug shot may not be flattering from ncmugs.com

Nobody likes their private humiliations made public. It is embarrassing. A DWI arrest or any arrest for any crime can be published online or in print.

So first, Will it be? Sometimes yes and sometimes no, it depends upon the time and the circumstances. If you are the mayor or a famous person, you are as they say, newsworthy. People love juicy gossip. A celebrity fall from grace is what people love to hear about. It gives them that German term, a feeling of "schadenfreude" of finding joy in the misery and pain of others.

Are DWI arrest records public knowledge? Yes
Is it legal that my DWI arrest records are published by news groups, newspapers, and online sources? Yes

And so it goes, your DUI/DWI arrest records are public records. Remember that an arrest for anything is probable cause level proof that you did something.  It is not proof beyond a reasonable doubt. An arrest in and of itself is merely an allegation of wrong doing, nothing more.

But what will people think? They will think you are guilty. That is the truth. People generally believe stuff that is published. People love to believe the worst. It is basic human psychology. I know that whole you are innocent till proven guilty, but in the real world people say guilty till I see or hear otherwise.

So what to do? 

First, realize that sitting, lamenting, and stewing over it does absolutely nothing. It is what it is. You have control over one thing, your reaction (or your response) to it. You are not a bad person. Many famous and super successful people throughout history have been arrested. It doesn't diminish you if you don't let it diminish you. Many of those who will judge you have done the same thing but they never got caught. The ones who judge the most are probably harboring their own secrets.

Second, you will have little to no control over the media. Asking them not to publish your stuff will probably push them to do it more. If the news is slow (nothing major to report) then your DWI arrest maybe front page. If your situation involves an accident, a child, or multiple drugs it is also more interesting and more likely to receive press.

Third, it will pass, other news will put yours on a later page. It will likely never go completely away. Someone with enough patience can unearth old news. But it will become a distant memory. As they say, time heals all wounds. Time will in fact bury your event within the millions of history. Unless you are a rock star or globe trotting mogul your arrest just won't hold long term public interest.

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.


Monday, August 26, 2013

It's Apples and Oranges: Comparing the Costs of Traffic Infractions in New York and Florida

Making the Mistake of Comparing an Apple with an Orange

 These scales will never truly balance from uskowioniran.com

I was recently asked by a family friend to help him clean up his Florida tickets (traffic) so he could get back his license to drive. I do this regularly for New York drivers but had not within the state of Florida. Being licensed in a state (I am licensed in Florida), and actually practicing a specific area of law are two wildly different things. Many people are under the mistaken impression that having passed a state bar exam, getting a license, and knowing how to practice there is the way it is. It is not. I have practiced other areas there, just not traffic.

Florida is Fairly Simple: One County Courthouse for Everything

Every Florida county has a grand Courthouse. Florida is old but it's legal system is fairly new and progressive. I like to look at states as either a "Common wealth (NYS) or a Statutory State." Statutory states have set numbers (fees, fines, costs), and many commonwealth jurisdictions have wide ranges. Wide ranges, give Judges wide latitude (read discretion) on punishments and punishing.

You can do everything from a speeding ticket to a murder case in this one structure. Upstate New York has thousands of little town and village courts. In my area (the Fingerlakes region of NYS) I handle a few hundred Courts within a hundred square miles. 2/3 of our judges are non-lawyer justices/judges. They go to judge school (a couple of weeks), and then receive further training courses. They preside over misdemeanor and violation cases. They can place you in jail for up to year and/or three years of probation.

So many little courts over this land mass from fingerlakestravelny.com

I began my legal help (services) online in Florida. With the person's private information (DOB, social, license number) I could freely access all their information. All their outstanding tickets came up, and where, and how to take care of them (on hyperlinks). I was in heaven, so organized and simple. All the phone numbers are listed. They have people there 9:00 to 4:00, everyday, and they are helpful. Afterall they want to get your money. I called them all, and for the most part was pleasantly surprised!

Well, in a place like Jacksonville, FL (Duval County), with 870,000 people, and growing, it has to be well managed and highly organized. With a commiserate number of traffic tickets that requires serious management. They could not do what we do upstate, one ticket at a time. The back log, and lash would be brutal.

In New York State I need to go to the DMV, and fill out paper forms, get a printout and then look up the Court addresses and phone numbers. NYS s very old school. Some courts don't even have websites or listed numbers. I can then try to call them but they are usually part time courts, with part time clerks, with part time prosecutors, and with part time judges. Some don't even have voicemail (or allow/accept voicemail). Did I mention they are part-time? How frustrating it can be to resolve anything here at times.

Back to my Florida experience. I contacted three counties, a collection agency, and the DMV all in less than 2 hours. I got to the bottom of 6 tickets, how much, where, when, and how to pay in that time. The total cost of all of these tickets: Less than $600, and that is with fines, fees, and the collection agency adding 40%. Mind you these tickets went back over 7 years.

In Upstate New York State, similar stuff would be in the thousands of dollars, hell one court for one old ticket could easily be over $600? Our fines, surcharges, and fees are high (like New Jersey) compared to good old Florida.

Is Florida better? Yes and No, just much easier and cheaper when it comes to this area of practice/law. Many people and lawyers doing Florida traffic tickets would be surprised by the New York experience. I got a call from a Florida guy once asking me to handle a Upstate New York ticket, when I told him my fee he balked but you guys (attorneys) do a dozen tickets all at once (like Florida), not true. Not easy or simple, not 9 to 4, we have night court as well, some Courts have Saturday court only.

So before you think every state or place is the same, get the real picture. Apples and oranges are both fruit but they are very different from one another.

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

Doctor of Chiropractic
Attorney and Counselor at Law




Sunday, August 25, 2013

Ithaca Cortland Lawyer Your DWI Right to Remain Silent is Going to Hell in a Handbasket

 The descent into Hell of Uncle Sam from blog.milowerx.com

I love old expressions. In the United States we have so many idiomatic phrases that started long ago but still survive and thrive in our daily lexicon. I believe that many of Our Sacred Constitutional Rights are "going to hell in a handbasket."

Are We Going to Hell in a Handbasket?

My research into this expression revealed a few possibilities. They used to lower children into mines to work in handbaskets, clearly those dangerous places might qualify as hell? They used to call hot air balloon baskets (handbaskets), whether that trip up was to heaven or hell is another story. Going in a bad direction is what I currently see happening in the destruction (degradation) of our Constitutional Rights. A recent Supreme Court decision involving Your 5th Amendment Right to remain silent alarms me.

 The "Ithaca" Right to Be Silent,
YOU are a child of the Universe, no less than the trees and the stars.
YOU have a right to be here. And, whether or not it is clear to you,
no doubt the Universe is unfolding as it should. Amen

 from condenaststore.com

We Used to have a 5th Amendment Right to Remain Silent?

Anything you say, can and will be used against you in a Court of law. Your car is stopped by the police, you choose to remain silent, afterall why give them ammo to use against you? It makes no sense to try and explain innocent behavior, right? The police, they are the government, and they are not your friend in this circumstance. It is your RIGHT to REMAIN SILENT!

A Fair Trial Right but No Longer at a Traffic Stop

Even in a trial the Judge would inform the jury not to take the defendant's silence (decision to not testify) as a indication (sign) of guilt. But we have new case law, going all the way to SCOTUS
Supreme Court of the United States, that a person's silence during police questioning can be used against them by the Prosecutor as evidence of GUILT!

Salinas v.Texas, 570 U.S. __, 133 S.Ct. 928 (2013) - Docket No. 12-246

SILENCE can now be introduced as a sign of GUILT! 

Salinas was found guilty of murder and given 20 years!

Even Judge Ginsburg said in oral argument, "What does silence mean other than "I fear self-incrimination?"

Yes, you have a RIGHT to remain silent and Now they have a RIGHT to beat you over the head with it. Sounds fair? Even if you expressly invoke it (state it expressly) they may (the Court did not decide this one)  use it as evidence against you. Although judging by the comments of the other Judges there is a difference between "testifying against yourself at trial" and "speaking against yourself on the street or at a police station."

Now the facts of Salinas are these:

1. Salinas agreed to talk to the police on his own accord (willingly)- he was NOT in custody.
2. Pre-Miranda (NO miranda given by the police - they did not have to because there was NO custody)
3. Salinas never expressly invoked his right to remain silent.

The Lesson from Salinas:

Don't willingly and freely talk to the police (go into the Lion's den) without an attorney.

"Mommy when is this nightmare going to end?"

I still love my country. Out of all the places (countries) on planet Earth I have visited, this is still my home. It just pains me to see the direction we are moving in terms of our rights as a people. Maybe this is necessitated by the dangers of terrorism? Maybe because of the needs of the many to be safer? As a DWI defense attorney protecting (defending) people against an overreaching powerful government it concerns me.

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

Doctor of Chiropractic
Attorney and Counselor at Law




Friday, August 23, 2013

Ithaca Lawyer Getting Past the Reptile Brain in New York Assault 3rd

The Simple Reptile Mind from 1ms.net

We have a relatively primitive brain. I didn't come up with this, it's all that reading I do. We are at our base instincts, reptilian. We have brains wired for survival of our species. All else is as they say, is merely commentary.

The reptile brain thinks in duality. Hard and fast dichotomy, with no in betweens. Safe vs. Dangerous, flight vs. fight, good vs. bad, this brain is quick to make decisions and judgments. All hard wired and ready at an instant.

Legally Speaking from thinkingtoinking.com

Where this brain of ours doesn't serve us in when it comes to subtlety. I am one of those knuckle head guys that doesn't always read the signs (as my wife loves to quip). How did you miss that? It was so obvious? Me, like millions of other people don't always think in degrees, in those shades of grey, or those slight differences. Those colors all look the same, you already have shoes just like those, or why does it matter about what style you wear to that event. I think women think a little less reptilian as a general rule.

Law is Centered in Subtlety 

We have crimes based upon degrees. We have crimes based upon levels of harms. We have crimes based in mental states (intentional, negligent, and reckless). We have punishments in degrees as well, called in New York State, "graduated sanctions." In law, evidence and proof are measured and weighed (the scales of justice). Appropriate sentences are proportioned to fit the crime.

Degrees of Injury are Vital 
Defending Against NYS Assault in the Third

Which brings me directly to New York State Penal Law section 120.00 Assault in the Third Degree, aka assault 3, or assault 3rd.

The essential element of the Prosecution (the District Attorney) proving you guilty of assault 3 is the causing of a physical injury to another person.

Physical injuries vary greatly by degree. Are these "substantial" injuries? Are they lingering (permanent)? Are there any aftereffects from the injuries?

New York State law defines physical injury under Penal Law section 10.00 (9):

Physical injury is defined as one that causes impairment of someone's physical condition or substantial pain. So they (the DA) must SHOW (Demonstrate) impairing injuries or substantial injuries to prove you guilty of Assault 3rd.

This is an objective measure, not a subjective one. My wife is a nurse, and I can tell you what someone thinks (or feels) is painful varies greatly person to person. Some people think everything is a level 15 on a scale of 1 to 10, while others are bleeding profusely and feel fine.

Where the Court Found Guilt of Assault in the Third Degree

In one case, People v. Guzman, 260 A.D.2d 188 (1st dept. 1999) the court found Guzman guilty of assault 3rd based upon the physical injuries sustained, he appealed, and the higher Court upheld the conviction based upon the injuries sustained:

red streaks across the face that lasted for 2 weeks
cuts and bruises that lasted for days
large blood clot inside the mouth
soreness of the ribs, face, and mouth that lasted for days

KEY TAKEAWAY the injuries Lingered, they lasted for days or weeks.

Where the Court Found Innocent of Assault in the Third Degree

In People v. Rodriguez, 158 A.D. 376 (1990) the Appellate Court reversed a conviction of Assault 3rd because the injuries did not meet the objective level of either causing impairment or substantial pain. The injuries sustained:

three punches to the leg
bruises from the blows
No testimony of any aftereffects from the bruises

When is it just a Bruise? from coreconcepts.com
The Court did not feel the prosecution met the "substantial pain" threshold to warrant a conviction for Assault 3rd.

In another case, People v. Oquendo, 134 A.D. 2d (1987) the Appellate Court found insufficient evidence to sustain a conviction for Assault 3rd based upon the following injuries:

knocking someone down to the floor
hitting her ankle
kicking her
Bruised and black/blue ankle
NO aftereffects, NO lingering

The various New York State Courts have held that the following are merely minor injuries
(NO substantial injuries = NO Assault 3rd):

a one-centimeter cut above the lip
superficial scratches
abrasions requiring one stitch
blows causing red marks
even being struck in the head by a gun
pain experienced at the time of injury

The Courts are looking for aftereffects. 

KEY TAKEAWAY: Substantial pain requires more than slaps, kicks, punches, shoves, and blows.
Pictures of bruises in and of themselves will NOT meet the threshold.

The defense of many crimes lies in looking at degrees and subtlety. Proof is not usually a clear case of black or white in many situations. Looking at the law, the facts, and these shades can mean the difference between GUILT and INNOCENCE.

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

Doctor of Chiropractic
Attorney and Counselor at Law



Not to be Overlooked, New York State DMV DWI Administrative Driver's License Penalties and Phases

The Precious NYS Driver's License from cityroom.blogs.nytimes.com

Our youngest (16) just got her driver's license. After teaching four kids to drive my nerves are shot. But Ahhh the joys of youth and freedom. She is thrilled, but I have strange admixture of P and P. The pleasure of not having to drive her to a gazillion activities, and the pain of worrying about her.

The privilege of driving, especially up in the woods (the countryside of Upstate New York) is not a glorious extra, it is to many an absolute necessity. This is Not Brooklyn, mass transit can be iffy (ask the Ithaca College and Cornell students). The TCAT (Tompkins Consolidated Area Transit) is not the apple of everyone's eye. My kids hated it. I rode it once, it serves, is it on time like the Tokyo Trains? No.


Wow, we live in a world of so many acronyms, NYS, DMV, DWI, PCCL, PRCL, DDP, blah, blah, blah. Sometimes I get lost in going over stuff with my clients concerning their cases that the letters all get jumbled together. It can be messy. The lofty goal of this blog post is to help clarify the muddy acronym waters of New York DWI.

1. Administrative Issues = License Issues

First, dealing with your license issues are as important as handling your criminal case. A license is a permission to do something, so it is afforded less weight legally. In other words, easy to get and easy to lose. The standard is even less than the civil standard to award money in a car accident (more likely than not).

2. Administrative (License) Issues Can Be Double 

If you violate (DWI/DUI offend) in one state but are licensed in another you face "potential" penalties in both. Suspensions of privileges, revocations of privileges, fines, surcharges, classes, and evaluations are all potential penalties. Some are not voluntary, not if you ever want to be licensed anywhere.

3. States Often Communicate with One Another About Licensure

Some states will inform other states immediately, some not at all. Some will grant reciprocity (equal credit for penalties and/or classes) and some will not. Your DWI/DUI attorney should help you with easing some of these burdens if possible. Either way, it will eventually go to the National driver Registry (all states must check this Federal database before re-newing or issuing a driver's license). New Federal laws have placed burdens on the states to now police the identity and legality of their citizens.

4. States May Do Nothing with Your License or A lot

Some states, like Pennsylvania, on first time out-of-state DUI/DWI do NOTHING. Some states like New Jersey, fine $3000 and suspend with no conditional or restricted privileges (based on BAC) for up to 7 months (technically 210 days).

Licensure has Phases from planetsforkids.org


In New York State, you will go through various phases of licensure after a DWI case begins.

PHASE ONE, there is an administrative Court suspension of FULL privileges to drive in NYS. Remember, NYS courts/judges only have power (jurisdiction) over NYS privileges. So if you have an out-of-state license it should be good in the other 49 states.

This is called the "suspension pending prosecution." This occurs with a BAC of .08 or higher. Your attorney can apply for a hardship privilege license at this phase. This can allow partial driving privileges for work, school, and medical care.

PHASE TWO, you can apply at the local DMV for a PCCL (pre-conviction conditional license) after 30 days from the administrative court suspension. You may need a certified copy of your out-of-state license history/abstract to apply if you are from out-of-state.

PHASE THREE, if your criminal case is resolved then your attorney can request a stay (delay) of the license suspension. This is called a "twenty-day license" because it is only for 20 days from the sentencing date.

PHASE FOUR, suspension or revocation of license privileges begins, then the NYS DMV's DDP (drinking driver program), and the second type of conditional license (the PRCL: Post Revocation Conditional License). This is usually available at the local DMV (to sign up and receive) about 10 to 14 days after sentencing.

PHASE FIVE, after completion of the seven week DDP, for first time offenders, 21 YO or older, and no other issues (talk with an attorney). Re-apply (pay more $) and receive back FULL privileges. One caveat, this is a FULL PROBATIONARY license for six months. One cell phone violation, seat belt violation, anything beyond a parking ticket and you are SOL.


So there you have it in all it's glory. Now if you refused a breath test, a different course, if you are under 21, a different course, if you are from out-of-state, a potentially different course. If you, if you, I think you get that it is NOT always one size fits all, and this is the general course of events on NYS DWI DMV stuff. Always consult with an attorney about your particular (specific) situation.

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

Doctor of Chiropractic
Attorney and Counselor at Law




Ithaca Cortland Lawyer: The Cost of Being Right: The Legal versus the Practical

 I love my wife, that's my mantra! from quickmeme.com

Being Right Can Be Sweet

Who doesn't love to be right? The sweetest words that my wife can say are not "I love You," they are "You are Right." That's sad, but oh so true. Afterall, in our 26 year relationship I am often wrong, yes, I know it is hard to believe but the husband often gets it wrong (or doesn't get it at all). Claims that I don't listen or have not listened clearly echo in my head constantly. What did you say?

The Law

So what does this have to do with law? Well, I recently did a blog post about the passage of a new New York Bill that allows (permits them) judges to give shorter sentences for probation. Did I mention passage? because that is the key here, this thing, this law has passed the legislature otherwise I would not have the excitement I have for it. Nice to know something is written but until it passes, let me just say "I'm from Brooklyn" so show me!

Here it is, let's call it THE PROBATION MODIFICATION BILL:


TITLE OF BILL:  An act to amend the penal law and the criminal procedure law, in relation to establishing terms of probation sentences and revocations thereof under certain circumstances; and to amend the criminal procedure law, in relation to pre-sentence investigations and written reports thereon in any city having a population of one million or more


Section 1 of the bill would amend Penal Law ("PL") º 65.00(3)(a)(1) to provide the court with the discretion to impose a probation term of three, four or five years for a felony. This would only apply to felonies other than (1) Class A-II felonies defined in PL Article 220; (2) the Class P felony defined in PL º 220.48; (3) any other Class B felony defined in PL Article 220 committed by a second felony drug offender; or (4) any felony involving a sexual assault.

Section 2 of the bill would amend PL º 65.00(3)(b)(1) to provide the court with the discretion to impose a probation term of two or three years for a class A misdemeanor other than a sexual assault.

Section 3 of the bill would amend PL º 65.00(3)(d) to give the court the discretion to impose a probation term of two or three years for an unclassified misdemeanor, for which the authorized sentence of imprisonment is greater than three months.
I read about it through the New York State Defenders Association, Public Defenders Backup Center Report, May- July 2013. I love to keep up with changes to NYS law, especially favorable ones. btw It also helps me with my "being right" about more stuff.

I had shared this with a local attorney, and he was excited to share it with a local judge. The judge then called the DA (District Attorney) who told him it never passed. Now I believe that it is up to each, and every local attorney to keep up with their areas of law to best advocate for their clients. But knowing stuff (law) doesn't guarantee anything, it just gives you a leg up, nothing more.

Remember, Judges Believe What They Want To

Judges are people, and they have their own beliefs. The other fact is that 2/3 of all town and village judges in New York State are not lawyers. I have faced situations where ADAs (assistant district attorneys) in different counties have told judges "bubbe meises," my old Yiddish expression for grandmother's fairy tales ie. bullshit. They argued that there were exceptions to New York law for restitution in DWI cases, there aren't, and for YO (youthful offender) status in DWI cases, there aren't.

People don't always agree with you from theintersectionist.com

But the big take away, some judges listen, some judges read, and some judge don't care. I have filed motions on the law, and some judges have denied them. Even with the written statutes in their face, they flat out denied the law, and the legal and factual grounds for what I was requesting. Other judges followed the law to the letter. Sometimes trying to be RIGHT legally can be time consuming and costly. Is it worth chasing down $500 by spending $1,000's on legal appeals? Some law firms love to just keep appealing, hours and hours of time, and who pays? Hey you may win? It's like getting the bedroom set in a nasty divorce that cost you half your home equity. In my mind, often this proves to be both stupid and impractical.

 No Truer Words have been Spoken from wordofbalance.com

The Cost to Be Right

I have my share of innocent people, but what does it cost to prove true innocence?

Case in Point: I have a diabetic pulled over for truly erratic driving who refuses the breath test. I now must bring in a medical doctor to give expert testimony that his diabetes caused his failure on all the field side sobriety tests and the brain (mental) confusion of taking another breath test back at the station.

Unfortunately, You are "Guilty till Proven Innocent" in many situations like this. There is a NYS Jury Instruction called "The Presumption of a Consciousness of Guilt" which can be used by the prosecution because you refused the breath test. Meaning you are presumed to have not taken the test because of your feelings of guilt (guilty to be drunk driving).

We now need to explain the crazy driving, we now need to explain the imbalances, we now need to prove the cause of the confusion, and we now need to demonstrate the proof of our theory of the case. Being offered a guaranteed DWAI (driving while ability impaired) would be a win here in some people's minds. The chance or risk of going to trial are not for everyone. For others, going to trial at all costs (financial, emotional, and time) would be the only option.

And sometimes the battle costs more than the hopes or chances of winning the war. No guarantees that even if you bring in the experts to testify, even if you file the proper motions, even if you state the law, and even if you have all the right facts that you will succeed. And thats a lot of even ifs.

In marriage, and in law sometimes the cost of being right (much like the rent) is too damn high. Sometimes it is better to keep the peace (or remain unscarred) and be wrong.  

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

Doctor of Chiropractic
Attorney and Counselor at Law




Thursday, August 22, 2013

DWI/DUI Misinformation or It's on the Internet so it Must be True?

Guy DiMartino, D.C., Esq. (we went to undergrad and Chiropractic College together)
my "friend" for over 33 years.

I have one good friend. Others may have hundreds of facebook friends but I have a handful of real friends. He and I go back over thirty years (we were teens together). He thinks I get too worked up over things. Hey Larry, why do you care that someone said this or that? What does it have to do with you? Why does it bother you?

Maybe he is right, I am a bit high strung. I hate (a strong word) professionals that use sensationalism to fear people into stuff. What I am talking about is all the mis-information "as in" wrong stuff that my fellow lawyers publish online. So what's REAL?

Sharing Should Rhyme with Caring

The internet is for sharing but shouldn't we all care about what we put out?

One Prime example, from DWILAWYER.COM, written by an attorney who is not licensed in New Jersey. I checked. This article mis-represents, and mis-interprets New Jersey DUI law. Whether someone relies upon this before or after a DUI is another story.

"Refusal to Take Breathalyzer in NJ is a Crime!"

This was off the DWILAWYER.COM website, prime location, page one, in my area. They are a lawyer referral service. They refer to lawyers.  They have a lot of DUI/DWI articles for many states.

REAL ANSWER: No it is NOT, and guess what neither is a DUI in New Jersey. It is in New York State, but not in New Jersey. He even backs it up with naming the statute, big deal. It doesn't add legitimacy when you state things incorrectly. Why? IMO Because CRIME invokes emotion, CRIME drives FEAR, and CRIME creates a better headline (like the New York Post), it sounds better than traffic offense. 

There are enough real things to be afraid of, there are real "crimes" like a NYS DWI but hey don't be an attorney anywhere and blatantly misstate the state law.

Back to New Jersey, where I am also licensed btw but I choose to practice in NYS. New Jersey has Summary Offenses, DUI there is a traffic offense (a serious one) but it is NOT a CRIME. 

Again, off this website, more bullshit (sorry but this incenses me):

New Jersey has a distinct crime "Refusal to Submit to a Breathalyzer" N.J.S.A. sec 39:4-50.2 This crime is so serious that it can carry the same punishment as a conviction for DWI.

REAL ANSWER: No it is NOT, and it does not even have the possibility of jail time. 

The primary difference between the DWI Statute (N.J.S.A. 39:4-50) and the Refusal Statute in New Jersey in terms of penalties is the possibility of jail time. The DWI Statute carries a possibility for jail time, the Refusal Statute has no provision for jail time.

Why should I care?  

I care because mis-information hurts everyone. We have to rely or trust something. I want to trust online reviews to be balanced. I want professionals to share of their experience and knowledge but please don't share UNLESS it is fair, it is accurate, and it is transparent. 

My disclaimer: 

I publish stuff, like this blog post all the time. I try to be clear, but the law is dynamic (ever changing), and moreso their (law) application in various jurisdictions can vary greatly. For example: New York State Criminal and Non-criminal law has a wide ranges of punishments, some evenly applied and others not even close. Knowing the Court, County, Judge, and the area of law help level the playing field. I find it almost comical when lawyers give blanket information. "Blanket" as in covering a wide area and with legal certainty. 

Remember that Certainty Lessens FEAR

You want more certainty in your legal process? Then hire (take counsel and legal advice) an attorney who is focused (concentrates) on that area of law, who is licensed in that jurisdiction, and who eats, breathes, and sleeps in that courthouse. BTW Speaking of NJ, One of the best DUI lawyers I Know in New Jersey is Evan Levow, ESQ.    877-735-2288

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

Doctor of Chiropractic
Attorney and Counselor at Law




Wednesday, August 21, 2013

The Value of Creative Thought or Why am I Paying My Lawyer?

You can define it but can you live it? from stacyennis.com

Over my years in practice or shall I say practices (Chiropractic and Law) I have had people question my fees. Sometimes you are paying for far more or far less than merely time and/or services.

I'm a big kid at heart from fanpop.com

My wife tells me to grow up but strength sometimes lies in weakness. I am forever a child, curious and creative. I call it the Peter Pan Syndrome while my wife (and mother) call it immaturity.

Professional Fees: Is it really just Time and Service?

What exactly am I paying? What am I paying for? Am I paying for your time? Am I paying for a specific service?

Time is a very common way to bill, and easily understandable but is there something else? You pay the therapist, the music teacher, the plumber, and a gazilion others based upon their time and the costs of their materials. I like to joke do you want the four hour root canal or the 20 minute laser root canal? Well you do want your money's worth? or do you?

Service is the second way that many professionals determine a fee. I showed up at a hearing, did an adjustment, examined a patient, or filed a motion so that costs you "X."

There is a 3rd Dimension to professional services beyond time and service.

How creative is your doctor or lawyer or CPA or Plumber?

Can they think as they say "outside the box?"

Do they see what others don't or can't see?

Some recent cases demonstrating the 3rd dimension: 

Case #1: The future nurse

Potential DWI client calls me, already has a lawyer, unhappy and wants to know my take. Actually, and it usually goes down this way, I don't know till the end of the phone call she is already represented by someone. She has been going to school for Nursing, and is now is facing a 2nd DWI (a felony).
This would be the career killer. I ask, has her attorney asked for her school documents? In other words has he presented her nursing school records to the DA or to the Judge? NO. Has the attorney asked for her school loan documents or letters from teachers? To present her school loans or anything from teachers to demonstrate her commitment to being a nurse? NO. Does she has have an offer for anything less than a felony? NO. Has here attorney explored a combo of short time county jail, and probation with treatment? She doesn't know, but I hazard to guess? NO.

What is her case about? What is her life about? Her future livelihood and career as a NURSE. If she was a nurse or a doctor or any professional license holder that is what is on the line here.

Yet her ADVOCATE is not advocating creatively.

There are only three defenses: the legal defenses, the factual defenses, and the equitable defenses.

With her specific case, she is dead in the water on the first two. There was probable cause for the stop, the arrest, and a solid BAC (blood alcohol concentration). So I'm left with an equitable defense.

Equity goes to fairness, goes to whether we can help (rehabilitate) a human being get back on track. Equity goes to the humanity. Her equity is based in her "pursuit" of a professional degree and license.
Just as if she had one. Now I have people in the midst of their DWI case who want to join the armed services, or suddenly decide they want to be a doctor or a lawyer, NO! That is BS. I need something more for equity and she at least has a proven track record.

But even EQUITY requires proof. Nobody listens to anything. People love to see stuff. We are all VAKs (visual, auditory, and kinesthetic). We primarily relate and communicate visually (through our eyes) not through our ears.

I love show and tell from freddysbar.com

Remember your kindergarten show and tell? You would bring in stuff and talk about it. Stuff people can see and believe in. Judges and District Attorneys love to see hard data. Demonstrate, show me. They want "Proof" of what you are telling them. It has a huge impact. They can touch it and believe it to be true. Talking about your loans, or your schooling falls flat. Just like holding a degree in your hand, it has weight beyond the paper, that's why people frame them and mount them on walls.

Case #2: Young DWI with prior DWAI.

Imagine if you will a guy driving on the railroad tracks, you get the picture. Not a first driving while offense, but not a high BAC, pretty low actually but he is definitely in hot water. The ADA is not happy, and wants his pound of flesh. Remember, everybody wants something. DAs and Judges want to curtail future bad behavior. Does a lesson need to be taught?

Hey I say how about a weekend in jail for our young lad? The DA and Judge love it, perfect. It is the deal of the century in my opinion. The mother of my client thought OMG this is terrible. It was as if I said he was going to prison for years. A weekend in the county jail, it's his second DW and he's only 20, give me a break mom.

Anyway, a lawyer's creativity can be with all the defenses. Those precious moments of why didn't I think of that sooner? Practicing Law much like practicing medicine is both a Science and an Art.
One can be learned (SCIENCE), but the other (ART) must be lived and experienced. And there are some that will never get it, never quite understand or believe in the power or magic of communicating in a different way. The same naysayers that have sight but no vision.

You really pay professionals to think, to strategize, and to execute. A monkey can show up, a "smart" person can write and file a motion, but it takes a creative person to think and to advocate (represent you and your interests) successfully.

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

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY




Tuesday, August 20, 2013

NO Coffee Shops: Legalization of Marijuana Brings New Issues to DWI and DWAI Drugs

Pick Your Pleasure (or pain), from greenomix.com

I just read an interesting article on how Colorado and Washington state are "tailoring" their new pot laws to minimize harms. Tailoring means an adjustment here, and maybe a narrowing of the where, when, how, and how much. Scope of law is important, we all need limits, especially to behavior that could be potentially harmful to ourselves and others.

Number one on their agenda is there will be NO COFFEE SHOPS! ie. coffee = weed

The "Menu" Changes Daily, from riversideca.gov

see article here:


First, Do No Harm

Just like doctors who take a Hippocratic oath to first do no harm, the legislators must create these new cannabis law to minimize dangers to people and society. What the article failed to hone in on IMHO is that the real reason for NO coffee shops was to reduce the need to drive to and from a shop.

Rule Number ONE: Reduce Harms with any new law

That is why these states have also passed the first marijuana "per se" regulation. Per Se in latin means "in itself." Or just by itself, with nothing else needed. In other words, just a specific amount and you are legally too impaired to drive/operate a car/boat/snowmobile/truck.

The new amount is 5 nanograms. It is the new .08 BAC for alcohol. BAC = blood alcohol concentration. Nationwide, if you have .08 BAC while driving, you are "per se" drunk (intoxicated).

Alcohol Served in Bars, Taverns, and Restaurants Can Promote Higher BAC DUI/DWI

I see a direct correlation (in my DWI/DWAI drugs practice) with the BAC numbers of my clients and the number of parties, bars, and places they frequented prior to their DWI stop. It makes sense, more places to drink and consume anything = higher amount of everything (generally).

I think we are moving in a good direction with the "decriminalization and legalization" of marijuana. It is less harmful than alcohol on a lot of levels. We are never going to completely eliminate drug use. Human beings are pleasure seekers. Regulating and minimizing harms should be government's goal and not just strict punishment.


Remember, New York State DWAI drugs (a misdemeanor) means almost any drug (medical/legal/illegal) that has impaired your driving to any extent. This includes marijuana. So don't smoke and drive, it is as bad as drinking and driving.

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

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY



Friday, August 9, 2013

Ithaca Cortland Lawyer: Judging Harms from Legal versus Illegal Behavior

I love Orwell, law is dynamic and sometimes unfair  from lushquotes.com

Our society loves to lament Legal = Good, Illegal = Bad, kinda like George Orwell's Animal Farm, two legs baaaad, four legs good.

Legal Substances and Behavior Are Not Always Good

Alcohol is legal. It is acceptable. It is prevalent. And it also one of the most harmful drugs (overall) we have. This is not just my viewpoint, this based on the damage (long term and short) it does to families and communities nationwide.

Alcohol is legal and yet marijuana (still illegal in NYS) is demonized. How many mean pot heads do you know? How many people stoned on weed want to cause destruction to property or beat up people?

I see behavior everyday that is legal, and yet extremely dangerous.

Ithaca Car by Tops, I waited two traffic light cycles before she moved,
This woman's car is so stuffed with garbage it barely allows her room to see and drive.

I asked the Ithaca police about cars like these, ones filled with trash. The IPD (Ithaca Police Department) say, "it's legal Newman."

Obviously these people (there are many) suffer from some form of mental illness but this should not be legal. It is not safe, and these people have a high likelihood of crashing into all of us.

I represent people charged by police with a host of offenses, many are not consistent or in alignment with their behavior. In my opinion sometimes the police are way off base, they charge crimes with nothing to back it all up. The facts don't add up to the crime.

Is this Reckless Driving?

I recently had a young grad who bought a new car and then made circles in a private parking lot.
The facts, this was not a public highway. No people were standing near the car. The lot was completely vacant. It was late. He drove round and round at a slow rate of speed. He was not on anything. He was just "testing" his car like a scientist.

Police arrested and charged him with the criminal misdemeanor of reckless driving VTL 1212.

What he did, maybe it was inappropriate, maybe it was careless, maybe it was stupid, but really was it criminal behavior? Did it rise to that level? Reckless driving in New York State requires:

Under NYS VTL 1212:

Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor.

The Penal Law defines reckless conduct as follows:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.

The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. [PL §15.05(3)]

From Wikipedia:

Under United States law, reckless driving is a major moving traffic violation. It is usually a more serious offense than careless driving, improper driving, or driving without due care and attention and is often punishable by fines, imprisonment, and/or driver's license suspension or revocation.

He didn't do this!!  fm legacygt.com

Well we eventually got that charge dismissed but think about it, as a society we need to think about preventing harm, alleviating harm, and the potential for harm. Some of our laws, and more importantly the police application of that may not be effectively accomplishing that goal.

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




Ithaca Lawyer Un-Ethical Lawyers Need Not Get Too Close to the Clerks

This comes from the New York Lawyer's Code of Professional Responsibility

"Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct."


Well, just when you thought you've seen it all something else happens. Over the course of my 15 years practicing law I have visited hundreds of town, village, city, and county Courts. A large part of that involves talking to court clerks and personnel. Filing motions, getting documents, paying fines, and re-scheduling is the day to day stuff (mostly mundane and boring) but recently one of the smaller Courts I frequent put up a sign that caught my eye.

What does this mean?

I honestly have no idea why they put up this sign or what it means? I am clueless. Attorneys are by law "officers of the Courts."

What is an Officer of the Court? (from the free dictionary)

officer of the court n. any person who has an obligation to promote justice and effective operation of the judicial system, including judges, the attorneys who appear in court, bailiffs, clerks, and other personnel. As officers of the court lawyers have an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion about reasons the attorney or his/her client is not appearing, the location of documents and other matters related to conduct of the courts.

Now back to this sign, by attorneys, they mean "criminal defense attorneys" not the prosecutors. I know the powers that be here (they) do not want us in the clerks office. This was and is a friendly Court. The Court where this is now displayed showed no friction between the attorneys and the staff and yet NOW we have this signage.

Keep Out!

It is a first, but maybe something happened, not all the lawyers I know are easy to deal with. Maybe a clerk got scared or put off by something that happened. I am guessing (I don't know) but maybe a paper document was seen that should not have been seen by an attorney. So much for transparency in the legal process.

My only challenge is to the word "ethically." I kinda group three things together:

1. Legality (what is legal) as in what is kosher and ok for all of us to do and say (appropriate behavior)

2. Ethics (acting with honesty and integrity)

3. Professionalism (no off color humor or jokes) This is a court not a bar or amusement park.

I believe they all go together, they are all necessary, and vital to the practice of law. Lawyers should not be told to be ethical by a court, they should be trusted, and if something did happen ostracizing ALL I don't think is the answer. Communicating, correcting, and fixing the underlying issues would be the professional approach here. Creating a huge sign and posting it on a door is not professional IMHO.

Just my two cents, ,,

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



Wednesday, August 7, 2013

Ithaca Elmira Lawyer Judges Have New Discretionary Power with Years of Probation

Watch out! fm 02vavara.wordpress.com

With so much negative (as in harsh) New York State legislation to report it is nice to have new law that is fair, just, and reasonable. New York State Penal Law 65.00 (3) has been modified, and this is exciting news for defense lawyers in NY.

It used to be that Judges had to give a three year term of probation for misdemeanors and a five year term of probation for felonies. If after half the term was served and was served well (no incidents/violations) then probation could decide to terminate the term of probation early.

New Law allows Judges to set terms of Probation for Misdemeanors at 2 or 3 years and Probation for Felonies at 3, 4, or 5 years. 

Anything that gives the person on the bench more leeway in sentencing I believe can allow for the wide range of variances between people, punishment, and rehabilitation.

Judges stripped of their discretion have their hands tied. Most Judges like having that ability to tailor their sentence. As a common law jurisdiction (old state) New York has wide ranges of punishments, they can run the gamut from a year in jail to no jail, from three years of probation to no probation, and fines can have minimums but also high maximums.  Laying out the reasons why your particular client deserves a lesser term of years or a fashioned set of conditions can be the light at the end of the tunnel.

Give people reasons to be reasonable. fm lawiscool.com

Key Take Away: Remember to get people to be reason-able always lay out the REASONS (the whys).

Why should you care about years of probation?

1. With Misdemeanor Probation you can't leave New York State. So you are stuck here for the full term of years unless probation ends early (unlikely for many). What if you or a spouse get a great job opportunity in another state? What if your company lays you off? What if your business goes belly up?
You are SOL.

2. Being supervised and monitored for years can be oppressive to most adults. You lose your 4th amendment right to be free of unreasonable search and seizure. They can demand entry to your home any time, demand a sample of your body fluids any time, and you must ask permission to leave the state.

3. Transferring Felony probation state to state can be difficult. It is possible but the new state has to accept you. It can be prove to be complicated with the government involved in your transfer.

Lawrence (Larry) Newman