Tuesday, February 28, 2017

Ithaca DWI Lawyer: Just How Safe is Your Social Media?

Whenever we have someone charged with a drug and/or alcohol related offense we ask that they take down their social media accounts. This is for a number of reasons but the main one being do you want the government looking at your Facebook page? Are there pictures or comments online that you would rather not have misinterpreted. Many people these days post pictures of themselves smoking marijuana, using drugs, and partying. Even posting talk (truth or fiction) about how messed up YOU got at an event or party can cast you in a bad light with the prosecution or a judge.

So just how accessible are your "private" or "public" social media accounts?

Monday, February 27, 2017

Ithaca DWI Lawyer: DWI Probation: What Do You Have to Prove?

Probar or To Prove is Very
A propos for PROBATION 
People love to throw around the term probation with even knowing it's full meaning. The word "Probation" comes from the latin, Probar, to prove or to test. People are given a chance to prove themselves, to go through the tests that are probation to emerge a new person. Probation for DWI or DWAI drugs in New York State definitely have tests but there not ones you can study for. Sobriety must be absolute as to alcohol and drugs.

But what exactly does probation for DWI mean? What do you have to do to prove yourself, and how exactly do they test you?

Sunday, February 26, 2017

Ithaca DWI Lawyer: DWI Probation By The Numbers

Some people who are arrested for a New York DWI are placed on community Probation Supervision. Whether an adult who commits a crime needs to be supervised is the real question? Some people who are convicted of DWI or a DWAI drugs absolutely need some form of monitoring post-sentencing. Now whether the monitoring is just having an IID (ignition interlock device) installed in their car or whether they need an overseer for rehabilitation and treatment for a drug/alcohol problem are two ends of the spectrum.

How does a county probation department make that determination for a DWI or DWAI drugs offense? Where does the decision for New York DWI probation truly begin?

Saturday, February 25, 2017

Ithaca DWI Lawyer: Is a Transfer of Misdemeanor New York DWI Probation Possible?

For all my years practicing law I have never seen or heard of a New York State misdemeanor DWI case with probation being transferred to another state. I had seen plenty of felony DWI cases get transferred but never ever a misdemeanor level case till this year.

In 2017, we have had out first request by a probation department to transfer a DWI case out-of-state. When is misdemeanor DWI probation transfer a possibility? How does it work to transfer a New York State misdemeanor probation?

Friday, February 24, 2017

Ithaca DWI Lawyer: Ithaca Starbucks Grows Up, We are a Reserve Store and Have a Clover

Try the Clover, It is Amazing!!
In all my years practicing law in Ithaca our one local downtown Starbucks has remained a regular Starbucks but homey. In recent months the downtown Starbucks has gone through a metamorphosis. First, my disappointment going to the the Collegetown Starbucks store this summer. I always walk up the hill as a meditation of sorts but never went into the store there. To my surprise they don't serve much regular (drip) coffee. NO bold coffee for us older folk at this Starbucks. They serve mostly drinks I'm told so pour over I go when there. No drip coffee so NO milk/creamer bar either, what?

Then our downtown Hilton Starbucks got remodeled, soft comfy chairs and lounge tables are now gone. In their place are now perfectly lined up and cold chairs and coffee bars with more space for more people but we did lose something in the process. The feel of cozy is gone but it is a big grown up Starbucks now. It has also graduated to a Reserve store with a Clover. Ah the Clover, magical machine that it is. If you don't know the Clover then you haven't had a crazy good cup of coffee.

Thursday, February 23, 2017

Ithaca DWI Lawyer: The Triad of Fatality: Speed, Drugs, and Distraction

A recent NHTSA (National Highway Traffic Safety Administration) statistic highlighted a huge rise in the number of fatalities on our roads today. In the past two years deaths are up 14%. That is huge increase, and you would think in this day of modern smart-cars (much like smart phones) with anti-lock breaks, automatic breaking, lane departure warnings, heads up displays, and traction anti-skid/anti-slip control, all wheel drive, symmetrical steering, now I'm just making stuff up, but anyway why?

Why do we have such an increase across the board in road accidents and deaths?

Wednesday, February 22, 2017

Ithaca DWI Lawyer: The Gift of New York Zero Tolerance?

It doesn't happen very often that a criminal charge or any violation offense involving alcohol is reduced to a NON charge. The majority of DW charges (DWAI, DWI, ADWI) in New York are often reduced to something but not something quite as unique as Zero Tolerance. Well if you are under 21 and get an outcome of Zero Tolerance on your case it is a NON-conviction.

What has to happen to make it a non-conviction? You mean to say a New York DWI goes to not a violation, nor to a misdemeanor but something else entirely?

Tuesday, February 21, 2017

Ithaca DWI Lawyer: It's Been Years Since My DWI Why Do I Still Need an Ignition Interlock?

People that have been sentenced to a New York DWI under any VTL 1192 sub section except (DWAI drugs) will have a mandatory condition in place. This mandatory condition is called the A2 license restriction by the NYS DMV. It means you can only drive a vehicle with an installed ignition interlock device or IID. This condition is usually ordered for 12 months and you have the option to petition the court for removal after 6 months if you have no issues (failures) with the IID.

What if you don't have a car? What if your DWI happened when you were only visiting New York State? What if your NYS DWI was in a borrowed car? What if you don't plan to drive for a year or two? What then?

Monday, February 20, 2017

Ithaca DWI Lawyer: Is Using My Cell Phone for GPS or an APP Illegal in New York?

People are often confused by New York State's cell phone law. First, it's NOT just phones, it is ANY electronic device. This can include: any potentially handheld device, iPod, Nano, GPS, iPad, walkman, and of course a smartphone. Is using a handheld device with an APP like WAZE illegal as well? Would that infraction (using your phone like a GPS) be a 5 point moving violation in New York State?

Sunday, February 19, 2017

Ithaca DWI Lawyer: Can You Get Tickets Expunged from Your Driving Record?

The amount of scrutiny people receive these days before being offered a position is staggering. Not only are they doing drug screens but they are requesting fingerprint criminal background checks as well. Many companies and organizations are also checking driving histories as part of a pre-employment background check.

Do you have traffic tickets on your history? Is it possible to clean up your New York State driving history? Can you get tickets or charges removed after a period of time passes?

Saturday, February 18, 2017

Ithaca DWI Lawyer: Transforming the DWI Villain

I Love Potatoes but for Years Vilified Them

So many things get vilified. I am guilty of casting the poor potato in a bad light. For years I loved baked potatoes. But then after reading and hearing how white foods like white rice, white flour, white sugar, and salt were bad for you I changed my feelings to the potato. So on to my naughty list went the lovable potato. It wasn't till years later that I realized that the potato has fiber, it's a vegetable (albeit starchy), and if baked or used in soups has a lot of nutritional value.

You know people get vilified too. They are cast in a bad light following an arrest for DWI or DWAI drugs. Are they really a bad person or merely a person that displayed poor judgment? Can we transform the perception for punishment of a demon into call for rehabilitation of a human?

Friday, February 17, 2017

Ithaca DWI Lawyer: How Easy Is It To Get a Taxi, Car Service, or Limo License in New York State?

For better or for worse New York State is one of the most highly regulated of places. As I have traveled around the country and my kids encouraged me to use Uber (I love it). I then went about discovering just how many hoops an Uber, Taxi Limo, or Livery driver must pass through to get their TLC (Taxi and Limo Commission) license with a Class E New York City license. Knowing how hard it is to get, and then finding out just how easy it is lose with a DWAI (driving while ability impaired), DWI, AUO (aggravated unlicensed operation), or even a bunch of traffic tickets may boggle your mind.

Thursday, February 16, 2017

Ithaca DWI Lawyer: Is it Pleaded or Pled Guilty?

Pleading Guilty = Being Found Guilty
You know for as long as I practice law, and live life there sometimes isn't a "right" answer. Language and usage based in culture, in country, and most appropriately in time vary. One of my daughters loves to use the word "dank," as in that is so dank, and one of my sons loves to say that I am "savage"and "vicious" when I tell it like it.

But what is the right and wrong tense of the word plead? Is the past tense pled or is the past tense pleaded? Since 95% of criminal cases in this country do just that is this important?

Wednesday, February 15, 2017

Ithaca DWI Lawyer: Why Judges, Prosecutors, and the Defense Must Protect DWI Due Process

Many People Need Help

A recent DUI case out of Nebraska firmly illustrates some of the problems we still are facing in our courts today. Imagine if you will a woman brought before the court on a DUI probation violation. But she has to be barreled in on a wheelchair stinking drunk. Later to register a .44 BAC, remember .08 is legal intoxication. Is it fair ask her to plead guilty on a first appearance? Is it right to negate her right to decide to plea voluntarily, intelligently, and willfully? Is it fair to provide her ineffective counsel (one who will NOT advocate on her behalf)?

Tuesday, February 14, 2017

Ithaca DWI Lawyer: Is a New York DWI a Crime of Violence?

Deported for DWI?
from geygan.net
Well the crime of DWI has made the front page of news once again. Concerns over potential offenses that can trigger deportation has Mayor De Blasio on the defense. New York State now has a list of 170 deportable offenses. Most are the most heinous of felonies. These are crimes like rape, sexual misconduct, and sexual abuse but some are not like welfare fraud and identity theft. Well what anyone considers a crime of violence or a crime of moral turpitude or one that should in fact make someone deportable is highly subjective. Should a first time New York DWI be on that list of deportable offenses?

Monday, February 13, 2017

Ithaca DWI Lawyer: How a First Time DWI in New York Can Be a Felony

Man drives child to school while highly intoxicated. 
When you read the headlines you see some people charged with DWI as a felony. The truth is that most first time DWI offenses are not felony level crimes. In fact the large majority of New York State DWI and DWAI drugs charges for first time offenders are charged as misdemeanors. But there is a special law for those people who are driving while intoxicated or impaired by drugs with kids under the age of 16 years old in the car as passengers.

Sunday, February 12, 2017

Ithaca DWI Lawyer: The Four Questions That Your DWI Lawyer Must Answer?

I believe that DWI Lawyers should be
more like doctors using a Report of Findings
I practiced for ten years as a Chiropractic Physician before my nineteen years of practice as an attorney. Believe it or not both professions, law and chiropractic can have similarities in their approach and strategy. Doctors are taught to use a Report of Findings to explain to patients what is wrong with them, and to help them answer their most demanding questions. Unfortunately I have found that many lawyers don't use a Report of Findings because they aren't really taught this approach in law school nor do they understand the clinical nature of their job.

So what is a legal DWI report of findings, and how does it help people understand their situation?

Saturday, February 11, 2017

Ithaca DWI Lawyer: Do YOU Have a History of Drug or Alcohol Abuse According to the NYS DMV?

It's funny to me that Pluto is no longer a planet. Sometimes things or even the definition of things changes. It is a bit disconcerting to think I spent my whole childhood looking at a map of the planets and now all of it is suspect. What's next? Well I can tell you what's next. . . the New York State Department of Motor Vehicles has expanded the definition of the word "history." There is a new look back period of years to diagnose a history of alcohol and/or drug abuse.

Friday, February 10, 2017

Ithaca DWI Lawyer: Prior Out of State DUIs Can Promote Felony DWI

So Many Highways and Roadways?
Sometimes words can carry a dual meaning. A promotion is usually something good, as in "I just got promoted to manager." But sometimes promotions can be bad, as in "the DA is using my prior DUI to promote this DWI to a felony level DWI. Going up the ladder from lowest level in New York is violation to misdemeanor to felony. In New York State the legal term for felony promotion is "Enhancement" as in my misdemeanor DWI got enhanced to a felony class E level DWI.

What if your prior DUI or OUI or OWI is from another state? Can they enhance your current New York DWI to a felony DWI based on that prior DUI?

Thursday, February 9, 2017

Ithaca DWI Lawyer: Who Decides When Your Ignition Interlock Goes On and Comes Off?

Since 2010 all New York State DWI convictions must have an IID (ignition interlock device) installed for 12 months. This if for any breath test or blood test over the legal limit DWI or aggravated DWI. But if the device is on with no issues you can petition the court to have it removed early (after 6 months).

So how does it (the ignition interlock) go on and how does it come off? Who controls the process of ignition interlocks in NYS?

Wednesday, February 8, 2017

Ithaca DWI Defense: Waging the New York DWI Extrapolation Defense

I like to use my own plow
In a previous post I discussed the New York DWI extrapolation defense. Remember that with any breath test DWI (VTL 1192 (2)) that the district attorney (the prosecutor) must prove beyond a reasonable doubt that your BAC was at or above .08 BAC. The law states at time of operation which in many DWI cases means at time of the police stop of your car. The extrapolation defense questions New York's single test result as INSUFFICIENT circumstantial evidence of a person's DWI guilt. Legally speaking how do we wage such a defense in Court?

Tuesday, February 7, 2017

Ithaca DWI Lawyer: What is the DWI Defense of Extrapolation?

From Dreamstime, Last Call for Alcohol

With every DWI case that has a blood or breath test, aka THE chemical test there will be a gap of time between police contact and the test. If there is an accident it takes time for the police to arrive at the scene and assess it. If there is a stop of a car for a traffic violation there is a process and procedure that is followed. All the police questions and the field sobriety testing, and the drive back to the station or trooper's barracks take TIME.

Time can always be your friend or your enemy. This is true in any case involving forensic police testing of a DWI or DWAI drugs body sample of breath or blood or urine. The clock is always ticking. Minutes and hours that drag by can affect your body's processing of toxins. And shots and chugging take so little time. As my daughter loves to tell me of all the new college drinking games like flip cup and circle of fire. So what's this thing called "Extrapolation" and how does it relate to being a DWI defense?

Monday, February 6, 2017

Ithaca DWI Lawyer: Can You Get Jail for a New York Traffic Ticket?

Is this Reckless Driving Legally?
Generally speaking people do not go to jail or get sentenced to jail time for a New York State traffic ticket. But there are instances where your traffic ticket is more than a normal moving violation. Sometimes a ticket is really a criminal level offense that a judge would be compelled to sentence you to a term of jail. On the ticket itself the box marked misd means misdemeanor. Misdemeanors and higher are criminal level offenses. Now legally speaking in New York State a town, village, or city court judge could sentence you up to 15 days in jail for a violation level offense. Offenses like disorderly conduct, DWAI alcohol, or even speeding could receive up to 15 days in the local county jail.

So what situations or traffic violations could bring a short term of jail in New York State?

Sunday, February 5, 2017

Ithaca DWI Lawyer: Is New York State's Judicial System a Mess?

New York State's Interesting
Court Architecture
We handle defending people in hundreds of little town and village Courts dotted throughout the farmy (yeah it's my own adjective) landscape of Upstate New York. But New York State's Court process is muddled, confusing, and in many ways antiquated. Traffic tickets don't have a natural flow or much information for those charged with even speeding. The Courts themselves are a communication nightmare. Many Courts, clerks, and judges don't have emails, some you can't leave voice messages, while others you need to call at a specific day and even hour. Navigating such a system is much like sailing a ship over dark and to us familiar waters. But enough with the doom and gloom, New York State is undergoing a reformation of the court process.

I believe a transformation is coming. This is evident because we currently have the first step in the process of healing, awareness of the problem. On a local level in Tompkins and Cortland counties we have a grassroots (not that Grass Roots) campaign to improve the process through communication.  

Saturday, February 4, 2017

Ithaca DWI Lawyer: Should Bullying Lead to a Murder Charge?

The "Show Me" State is in
The Spotlight Once Again
You know sometimes you read stuff and you get mad. Well at least I do, I hate what I perceive as an injustice or an unfairness. Unfortunately, there is much of that in the world or as Gerry Spence loves to joke there is NO justice, there is Just Us!

For those of you who don't know the legacy of Mr. Spence, he is a legendary trial lawyer and advocate for people. I feel honored to have been at his college in Wyoming (the Trial Lawyers College), and to have had his mentoring. I think Gerry would hate what is going on today in Missouri.

A boy was bullied, at his school and at his work, the local DQ (Dairy Queen). He committed suicide by shooting himself in the head. The coroner demanded an Inquest, kinda like a Grand Jury but only 6 in Missouri to determine the cause. Apparently this "court" found that the primary cause of the suicide was the manager from Dairy Queen.

Now the District Attorney has charged the DQ manager (all of 21) with the criminal felony of Involuntary Manslaughter, which is like being charged with MURDER for Bullying. Now we don't or no one truly knows how many people have bullied this kid in his lifetime, or what degree each instance of bullying played in his decision to finally take his own life. It is a tragedy but I think to pin it one particular person or event is guessing at best.

I question the logic and reasoning behind bringing a murder charge under these particular circumstances. I question the fairness of all of this, but I'm starting to understand the larger purpose.

Friday, February 3, 2017

Ithaca DWI Lawyer: Can Kombucha Tea Fail Your IID (ignition interlock device)?


The more you live, the more you learn. Or as I like to joke, life is a school. DWI clients call and tell us their problems even post DWI. My IID is not working, I'm locked out on my IID, my IID failed me because of the extreme cold or because I used mouthwash or because I drank a lot last night, and I guess it's still in my system. When I heard that Kombucha tea can cause a failure, I'm like what?

Kombucha comes in many flavors, but its base is always the same, made by leaving a fungus of yeast and bacteria to ferment for several weeks in sugary tea. The resulting brew has some alcohol and tastes tart, vinegary and is slightly effervescent. It then often is made palatable by adding juice. 
In order to maintain its probiotic benefits, kombucha is left unpasteurized, or raw, although some companies recently have started selling pasteurized varieties.
                                                                                                       ABC News

So apparently Kombucha has some degree of alcohol in it because of the fermentation. So say that the tea  has .5% alcohol. I guess depending upon how much tea you drink will cause an alcohol reading. Since drinking tea is the new coffee, at least with my millennials it is good to know that the tea has more than just tea. It is now being investigated by the FDA, and the government is looking into taxing it as an alcoholic beverage.

More government craziness with Kombucha tea but does it or can it trigger an IID failure?

Thursday, February 2, 2017

Ithaca DWI Lawyer: What's the Future of Driving and DWI?

Cute, Ecological, and Not Very Exciting!
You know I love cars. Cars and I have a long time long affair. They represent more than transportation or utility to me, they represent all that embodies what is great in America. They are symbolic of freedom, adventure, independence, and pursuit of the dream. One of the things that drew me to DWI defense is that involves cars. But the future of cars is uncertain. I recently read in Autoweek that I quote, "the future of driving is NOT driving." Self driving cars are coming. Does that speak the end of DWI charges? Does that mean that the crime of DWI will be a thing of the past?

Wednesday, February 1, 2017

Ithaca DWI Lawyer: Handling the Felony DWI

New York State is in my opinion very harsh on the second time DWI offender. The reason I say this is because in many other states it takes at least three DWI related convictions to get to the felony level. That said two DWIs within ten years is a class E felony punishable by up to four years in prison in New York. This is serious stuff and handling this type of charge requires great proactivity.

So what's the best way to be proactive with a felony level DWI offense?