Tuesday, July 4, 2017

Ithaca DWI Lawyer: Milk is NOT Always Milk

I love cashew milk even if it's NOT milk
from latestvegannews.com
I get a kick out of all the things people, companies, and even national organizations argue about. Lately it's all been about Milk. Is Soy Milk milk? Is coconut Milk milk? Is Cashew Milk milk? Or is the only thing that is really milk the stuff that comes from a mother animal's teat? Can it be that we have come to a point in vegan time or vegetarian time when we quibble over definitions?

Well the dairy industry is saying that the only real milk is the one we all know and love and that comes from a cow. The FDA is part of this battle and they are taking a position that guards the public trust in what companies can state or call their products. We don't want people to be deceived by marketers, God forbid.


Should we care about whether cashew or soy milk is milk?

For that matter does it matter what the legal definition of anything truly is? 


Legal Definitions Matter But Common Sense May Trump the Day


You know legally the term milk was defined in the 1930s as "the lacteal secretions of a bovine mammal." So legally all these soy milk, cashew milk, tofu milk companies are violating the law by using the word milk to define their products

Common Sense is NOT Always Common


Most people get that soy milk doesn't mean that a cow ate soy beans and this is the milk that comes out. But who knows, some people do believe that black cows make chocolate milk, yes that's true, not that dark cows make dark milk but that people believe they do. Well at least some people. 

You Have To Begin Every Argument and Battle With the Legal Definition 

good lawyers look up definitions first
from ragan.com

And here is my first point:

People (juries) and judges need to understand the "legal" definitions of different words and criminal charges. That's why judges give jury instructions. Remember that jury instructions are directions and definitions. The judge tells the jury what the law is. 

Everyone Has a Role to Play Within the Legal System


That is the judge's primary role, law giver (or definer). They tell the jury how to in effect APPLY the law by first defining it. The jurors are the called the fact finders, but they really are the fact appliers. They are applying a given set of facts to that law as given to them by the judge.

As an attorney I care about "legal" definitions. The first place you start with any case is the defined crime or criminal charges. Begin with the end in mind is attorney 101. 

What do they (the prosectors) need to prove? 
What do I need to show they did not prove? 
How can I challenge the proof in such a way as to show it is lacking, inconsistent, or muddled? 

Terms of Law Have Specific Legal Meanings


Terms like impaired and intoxicated have very specific legal definitions. These legal definitions are important to defending DWI and DWAI charges brought by the government.

Every state has a different meaning attached to these terms. There are NO standardized DUI, DWI, OUI, OWI, DWAI in the United States. Every state decides what each and every charge means in that state.

In some places it's a person driving under the influence of a substance, that's why many places have a D U I . 

New York has NO under the influence language or DUI. We have DWI. In New York State intoxication means ONLY being affected by alcohol. In New York State INTOXICATED also means being affected BOTH mentally and physically by that alcohol. If it just affects you physically it's legally not a DWI. 

So with that understanding in mind we begin to grasp how a defense of a common law New York State DWI charges begins. They need to have proof that shows, that demonstrates in fact a lack of mental capacity and a lack of physical capacity or capabilities. That's why a refusal case with NO chemical test of blood or breath is highly defensible.

Every Criminal Charge Requires Not Only a Definition BUT a Context to Flesh it Out


The second part to understanding a legal definition and a defense to that charge is CONTEXT. Now things get defined by words but you need to make APPLICATION of those words to circumstances. This is where case law comes into play. Cases go to trial and they test definitions.  They (the circumstances) may meet a given definition or they may exceed a defined term or they may fall short of meeting a level of proof.  

How Far "Out of It" were YOU?


This is where how far you were out of it counts. "Out of it" or lacking mental capacity is to not know, NOT be aware or present mentally.  How you are making out so to speak. If you pee in your pants, then that is (usually) not what people who are healthy mentally and physically do. If you can't FOLLOW directions, I mean can't even hold a coherent thought for 10 seconds, YOU are out of it and that usually means mentally incapable. 

Every Jurisdiction (NYS geographic area) Has Case Law to Give Context to Legal Terms


How has that jurisdiction, that part of the state applied the law? Under what set or sets of circumstances has there been found to be INTOXICATION? How did that person act, walk, talk, speak, understand to say they were physically affected? How did that person act, walk, talk, think, communicate to say they were mentally affected?

To what degree and in what circumstance did the court, a judge decide that were SO physically incapable AND mentally incapable to be considered INTOXICATED?

Legal Confidence = Knowing the Law (Case Law + Legal Definitions) 


It fills me with confidence to know legal definitions and most of all how they have been interpreted historically in New York State. If I can look at the circumstances of my case and apply them to the history of cases then I may have not only a valid defense but a strong legal basis to argue that NO law was broken by my client.