|Splitting the baby, an unreasonable solution|
In the vast majority of New York DWI cases we have at least two different misdemeanor charges:
1. DWI per se based on a BAC .08 or more
2. DWI common law based upon "inability to operate mentally and physically as a reasonably prudent driver."
In Kings 3:5 - 14, two women both claimed to be the mother of the same child. In actuality, one had killed her child, and then claimed the other mother's child as her own. This problem was brought before the Wise King Solomon. He said, "well then let's cut the baby in two and each can have half." The mother whose child was already dead didn't care but the "true" mother of the child stopped this ridiculous solution and was willing to give her child up, just to at least keep it alive. The wise King revealed the real mother.
Splitting the DWI Baby
The expression, "Splitting the baby" with DWI cases means that a jury can find a person guilty of one of the DWIs, and not guilty of the other DWI. In the minds of most people, and defense attorneys this is hardly a "good" solution. The person is still guilty of a criminal misdemeanor either way.
I hate when DWI juries find my client not guilty of having a BAC of higher than .08 but still find them guilty of common law DWI. It is a compromise of sorts but fair or making sense it is not. I feel it is an unreasonable solution to DWI guilt or innocence.
IMO I feel the better compromise would be to find guilt to the lesser included charge of DWAI (driving while ability impaired). This is a BAC of .06 to .07, and/or driving with any extent of impairment.
Unfortunately, DWI jurors don't always see it this way!
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.
Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.