Thursday, March 20, 2014

Ithaca DWAI Lawyer The Power of Just Three Little Words = To Any Extent

Judges charge juries. Judges can also charge themselves. Yes, in a bench (only a judge with no jury) trial the judge must give themself directions and instructions. It sounds silly but it is true.

What is Charging in Criminal Cases?

Charging means giving (providing) legal instructions. Judges give jury instructions aka charges to the jury. These explain the standards to be employed in making their decision. They must give legal definitions and sometimes clarity to the law to be followed in each specific criminal case. Often these directions are confusing, difficult to follow, and in need of repeating. It is common for juries to ask for more information and explanation.

Where Do These Instructions Come From?

Well Jury instructions or directions come from a number of places. Before juries (or judges) charge the jury (or themselves) the prosecutor and the defense attorney will discuss them with the judge. Sometimes the directions are changed, are argued about, and then some agreed to and others thrown out. The art and science of drafting (writing) jury instructions should never be overlooked by an attorney.

One of the most common references in New York State for jury instructions come from the OCA. The Office of Court Administration has a set of standardized jury instructions for DWI and DWAI and DWAI drugs.

Words can have a lot of power and control

Why Do I Believe the Difference Between Drugs and Alcohol Makes the Jury Charge UNFAIR?

In defining the New York charge of driving while ability impaired by drugs VTL 1194 (4) the OCA uses the same instruction as the one for impairment by alcohol. I believe this is a rather low and unfair standard. Because impairment by Alcohol is a violation (non-criminal) level offense WHILE impairment by Drugs is a misdemeanor (criminal) level offense. To give a violation standard to criminal level offense creates an uneven playing field between defense and the prosecution of these charges.

The OCA standard jury instruction for NYS impairment by drugs and/or alcohol:

In order to drive safely, a driver is expected at all times to be able to think clearly and act carefully. If, by  reason of the consumption of drugs (or alcohol) a driver loses TO ANY EXTENT  control of his mental faculties and his physical responses, our law considers that he has operated his vehicle while under the influence of a drug or drugs.


What Does the DWAI law REQUIRE?

According to the law (of the state of New York), a person's ability to drive safely is impaired by the use of drugs when, by voluntarily consuming drugs, he has actually impaired, TO ANY EXTENT, the physical and mental abilities which he is expected to possess in order to operate his vehicle as a reasonable and prudent driver. The law DOES NOT REQUIRE PROOF that such ability to operate his vehicle has been SUBSTANTIALLY AFFECTED (by drugs and/or alcohol). The PROOF need only show that such ability to drive safely has been affected "TO ANY EXTENT."

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

Reviews of Larry Newman:

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Please avail yourself of my online materials which include over 500 blog posts, dozens of articles, and over 490 informative videos on my youtube channel.