Tuesday, May 24, 2016

Ithaca DWI Lawyer: How Ithaca, New York Makes Law: A Story of Pot, Parks, and People

from epodunk, Dewitt Park

Little Ithaca, NY is no more than a blip on the map but things do happen here as evidenced by a recently published Ithaca City Court decision. This particular case involved pot smoking in one of our beautiful little downtown parks. You see marijuana is ubiquitous to Ithaca as well as those who like to partake. Yes New York State now does have "medical" marijuana but we are a world away from the medical use of marijuana in California or even New Jersey. But that is a story all it's own for another day. The police here still view pot in a criminal way and not a casual one. You know where people just relax and breathe deep amidst the joys of nature.

The Ithaca, NY Mix of Pot, People, and Public Parks

When you mix up pot with people in a public place you can see how things can go abit awry. The case is called People v. Brukner, see the full legal decision here:


Mr. Brukner was merely hanging out with a bunch of his friends in Dewitt Park on a lovely July night. Oh the Ithaca weather in July is delicious. The summer time is truly the time to enjoy all that the Finger Lakes have to offer. It is a welcome respite after enduring another harsh and brutal winter. The cold in Ithaca is not just a temperature thing it's a severely depressing one with tones of grey and night ocean blue.

Saturday, May 14, 2016

Ithaca DWI Lawyer: Use of Proper Analogy: DWI Defense Learns from Firestone

I recently was taking care of my daughter's car at Firestone. One of my dad duties is taking care of the cars. Maybe because I'm supposed to take care of anything involving a motor, gas, electric, or of a mechanical nature. So I brought it in for an oil change, and the once over.

Batteries and Core Charges

Guy does the hey "by the way" we found that your battery is running weak. We have a solution, a new battery. Ok, I'm there but when I get the bill there is a charge I don't quite get.

Battery charge
Core charge
Trade in Core credit
Install and replace Charge

Called the Core charge, meaning every battery has a core that is still useful/recycle-able. And some people keep their old battery, it still works but weakly. What I could not get or he could not help me understand was why I was being charged for an additional CORE plus getting credit for my trade in CORE?

He kept telling me the same thing over and over but I wasn't getting it. What he needed was an analogy.

Google Helps Me Understand CORE Charges by Analogy

Thank G-d for google, I googled CORE and charges and understood it perfectly.

The CORE charge is just like the recycle charge on a can of soda. It's a fee you pay in addition to the cost of the item for recycling it. If you return the can you get the recycle charge back.

That's the power of analogy. I sometimes use with juries,

New York State DWI is One Test One Sample Tested One Time

New York is a one test one time one sample state, would you go to a doctor and let him make a diagnosis based upon one test one time taking just one body sample?

Would you let that same doctor decide on treatment, drug therapy, or surgery based upon that single test?

If there are doubts in the case besides this all of them are amplified by the unfairness of this analogy. The danger inherent in finding a person guilty based upon evidence like this.

If you have questions about a DWI charge in New York, call us at 607-229-5184

Or find us online!  

Copyright 2016.  Educational Use Only.

If you are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes of a charge --including the potential loss of your freedom. 

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Ithaca DWI Lawyer: The Big Gulp DWI Defense: Retrograde Extrapolation

The Plausible Big Gulp DWI Defense

Defending DWI cases means looking hard at the facts in every case, and then determining if something is in truth plausible. Plausible means many things to different people but to the majority it speaks to not only possible but likely. In other words, not a shot in the dark or the needle in the haystack, something more than that.

Raising defenses means taking an offensive approach. With the DWI "big gulp" defense not to be confused with the massive 7-11 drink by the same name, you have taken a big gulp of alcohol or drink or shot right before driving your car. As to whether that sounds plausible, well watch any movie, TV show, or ask your bar going or frequenting friends, people don't like to waste precious (expensive) drinks, and people do take shots.

The Passage of Time After the Big Gulp 

You leave the bar or a friend's house and then at some time later after you have been stopped by the police, after being sobriety tested, and after more time then breath or blood chemical tested you registered over the legal limit of .08 BAC.

It is said, "Time can be your friend or your enemy." 

The chronology of a DWI case is crucial because the consumption, absorption, and elimination of alcohol from the body is a dynamic process not static. Nothing stands still, everything is moving forward but things go up and then go down. Alcohol levels will rise then they will fall. This is physiology at it's best.

Using the DWI Defense of Retrograde Extrapolation

A big term easily understood, take a point in time after consumption of alcohol, we have a BAC (blood alcohol concentration) level, that is post-consumption, but not post-absorption (if your body is still absorbing alcohol) then figure backwards (retrograde) what the measure of the alcohol level could have been earlier in time (like at the time of actual driving).

BAC at time of driving (DWI) ?

BAC post arrest (preliminary breath test) which is inadmissible in NY but may help us

BAC chemical test (breath or blood) at some time after driving and DWI arrest

Actual BAC at time of driving calculated (backwards) less than at time of chemical testing

DWI Retrograde Assumptions

1. When the body processes alcohol it is first absorbed (goes up) then eliminated (goes down). The first assumption is that your BAC was on the rise, was still being absorbed by your body.

2. You took a big gulp or a large amount of alcohol right before driving your car. A strong shot or large amount of alcohol could be equal to two or three drinks or .04 BAC to .06 BAC in addition to a BAC under .04 (approx. two drinks or less).

3. The police tested you at a time post arrest, post driving, but not post absorption so your BAC was still on the rise and much higher than at the time of your driving.

You were not DWI because the WHILE component was not satisfied, remember it is always Driving
WHILE Intoxicated. They must be simultaneous. The pressing question for the jury will always be  what was the ACTUAL BAC at the time of driving not some educated guess or calculation.

If you have questions about a DWI charge in New York, call us at 607-229-5184

Or find us online!  

Copyright 2016.  Educational Use Only.

If you are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes of a charge --including the potential loss of your freedom. 

*Attorney advertising

Friday, May 13, 2016

Ithaca DWI Lawyer: New York Cares More about Horses: The Replicate Testing Defense in NYS DWI

New York is a One Test DWI State

Most New York State DWI charges with an associated chemical test of blood or breath ONLY have ONE test. New York state is a one sample one time state. In other words the police take one sample of your body fluid, and test it only one time. Is it fair to base an arrest, let alone a DWI criminal conviction on one sample of your body fluid, and only tested once?

Ithaca DWI Lawyer: Using the Margin of Error Defense in New York DWI Charges

Most New York DWI Charges are "Per Se" BAC based Charges

Most New York State DWI charges have an associated chemical test of blood or breath. The chemical testing of breath samples are behind the most common New York State DWI charges. Remember Driving While Intoxicated can be proven two ways: common law by observations and testing of your behavior and per se by a specific amount of alcohol in your body close or at time of driving.

There is a margin of error with any testing, especially scientific testing of samples. The question is what is an acceptable margin of error in NYS DWI Breath Testing?