Tuesday, September 18, 2018

Illegal Police Conduct: No Violation of Failing to Signal 100 Feet Before Turn

Police love to pull people at 4:00 in the morning, and sometimes they even misapply the law. Imagine that. A recently dismissed New York DWI case is a perfect illustration of great defense work.

The DWI court (NY has specific DWI courts now) only had one single issue: they had to decide  whether the New York State Trooper had probable cause to stop defendant’s vehicle on the basis that defendant failed to properly signal his intention to turn thereby violating V.T.L. §1163(b). 

Do you always have signal your intent to turn your car?
When do you have signal your intent to turn your car?

Thursday, September 6, 2018

People v. Garcia and Mismarked Police Reports

Police officer testifying in Court
For the record mismarked, wrongly worded, and badly timed New York police reports will not get a case dismissed or reduced. In a August 2018 DWI case of People v. Garcia, the defense attorneys filed motions to get a case dismissed based upon a lack of operation. You see the New York police report aka the 710.30 form has check boxes.

What happens if the police don't check some boxes? What happens if the police mischeck some boxes? What happens if the police misstate the times of the arrest, the color of the car, the make of the car, the model of the car, and even the streets? 

Thursday, August 30, 2018

New York 45 day Rule: Criminal Defense Motions: You Snooze You Lose

Timelines or deadlines are crucial in criminal defense. The NY 45 day rule states that we have only 45 days from the date of the initial appearance with counsel in which to file our motions. In other words the clock starts ticking on our ability to keep out evidence (suppress it) within those first 45 days.

If we do not challenge any of the evidence, then the default is that it all comes in against you at trial.

Friday, August 24, 2018

New York DWI Marijuana: Can CBD Convert to THC?

Can over the counter CBD convert to THC?
More and more people are using CBD for their health problems are they in danger of a DWAI drugs charge?

Friday, August 17, 2018

DWI Case Dismissed for Jurisdictional Defect

Wandering on the road is NOT safe

A drunk woman was wandering two blocks from an accident scene. She refused the breath test. She was later found guilty of DWI after a trial. This was later reversed because of a jurisdictional defect. 

What is a jurisdictional defect? How important are the charging documents in any DWI case? How can I tell if my DWI case has one? 

Monday, August 13, 2018

Thursday, August 9, 2018

New York Felony Probation Allows Medical Marijuana

A case of First Impression. New York allows a person on felony level probation to use medical marijuana. A big win for all medical cannabis users, and those who see it's benefits.

This is history in the making as NYS lightens it grip on marijuana use. New York city has already declared it wouldn't prosecute marijuana use in the future as it did in the past. Marijuana in my opinion is not a gateway drug. It has many potential uses medically for PTSD, anxiety, and autoimmune diseases like Crohn's and Lupus. Marijuana is not the demon many people make it out to be. I think it's has many effective uses, one of which is long term pain management.

People v. Stanton was decided in August of 2018 and I think it speaks to our time of transparency and truth. It is time to take pot out of the backrooms. I believe it is time to have open discussion of using marijuana to help those in the population who are tired of all the side effects tied to prescription medicines.

With the number of prescription drug deaths at all time highs nationwide it's time to look at other less harmful substances. Medical cannabis can be used for long term chronic illness with little to no ill effects. As this case illustrates there are many people who see marijuana as an old answer to a new problem.

Monday, August 6, 2018

New York CD versus New York ACD: What's the difference under the law?

New York CDs and ACDs are very similar alphabetically but are worlds apart in meaning.

Conditional discharges are the most common sentencing option across the board for anything from a non-criminal violation to a misdemeanor and occasionally even a felony level offense.

Adjournment in contemplation of dismissal is where the judge and prosecutor agree to set aside (delay), adjourn if you will your case while they (contemplate) think about dismissing it.

With a New York CD you are most definitely  convicted of something.

With a New York ACD you are most definitely NOT convicted of anything.

Both have terms and conditions.

Both have time periods to compete those terms, conditions, and/or obligations.

CDs are usually one year in duration but can be two years max.

ACDs are usually six months, and sometimes can be a year in duration.

Thursday, August 2, 2018

The Most Common Way to Violate Your Ignition Interlock Device (IID)?

IIDs (ignition Interlock Devices) and DWI go together, well like rice and beans. But knowing the most common way most people violate could save you or loved ones aggravation down the road.

New York has mandatory IIDs since 2010, and this was updated to one year IID in 2012. 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.

VTL (vehicle and traffic law) 1192 is the DWI section of NYS law.

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.

This condition never goes away based upon time. Could be there 20 years later.
This condition never goes away based upon circumstance. You don't own a car, you don't have a license, you live in another country.
This condition never goes away based upon finances. You don't have any money, NYS will subsidize your IID.

This video highlights the number one way we see people who violate an IID.

Monday, July 30, 2018

Tuesday, July 24, 2018

Lindley, New York: Trooper Speed Trap

Upstate New York has lots of little towns with many speed traps. The top speed limit is 65 mph and the NYS troopers show no mercy in this regard.

Steuben County is beautiful this time of year but don't be distracted, your speed can get away from you. This part time court with part time judges can often be difficult to communicate with.

Have your tickets evaluated and explore your options with a traffic attorney before you decide to do anything. Quite often out of state people can be represented without any court appearances.

Newman and Cyr is a boutique DWI and traffic defense firm located in Ithaca, NY and serving the Finger Lakes region.



Monday, July 23, 2018

New York Charges Dismissed: Facial Insufficiency

Insufficient facts can get cases (and their charges) dismissed. This is Law 101. First thing, review the allegations they are making out against YOU. Look at all these facts carefully. They should be non-hearsay, not conclusory, and if true would make out the elements of the crimes charged.

Police need to allege facts that support their charges against you. 

If not, if they are facially insufficient your attorney can then move to have them dismissed. Motions to dismiss are granted by judges when there are not enough, poor, bad, or unclear facts.

What is Facial Insufficiency? 

Every crime has elements that must be met for you to be proven guilty. Some crimes require INTENT. That you intended to destroy property or that you knew that your driver's license was suspended. Some violations require a PUBLIC element. That your behavior caused a public disturbance.

The prosecutor and the police must set out these elements in their complaint or information against you. If the allegations do not support the crime, if they do not meet the prima facie burden, then you can move to dismiss the charges against you.

Charges that require INTENT can't stand up against you without INTENT.
Charges that require serious damages must have them alleged in the complaint against you.
Charges that require a public highway or road must allege the road or highway.

Quite simply a Prima Facie case needs prima facie evidence, evidence on it's face (at face value) without further interpretation or inference that you in fact did something and as if everything alleged were TRUE.

A recent July 2018 New York case of harassment and criminal mischief faced just such a challenge.

In People v. Toro, a guy hit his girlfriend, her phone went flying and broke. Police charged harassment and criminal mischief.

Toro plead guilty to the crime of criminal mischief in full satisfaction and went to jail. While in jail his 2nd attorney filed an appeal based upon the information's facial insufficiency to support the crime of criminal mischief. Toro had not intent to damage the phone, none was made out in the information against him. The first attorney may have missed this on reviewing the evidence against Toro.

  1. There were no allegations that Toro intentionally damaged the phone.
  2. There were no allegations that Toro had a mindset to damage the phone.
  3. There were no allegations that Toro had conduct that showed he wanted to damage the phone.

Toro only wanted to hit his girlfriend, so maybe harassment charges (a violation) were supported by the facts but NOT the crime of criminal mischief.

The second judge dismissed the criminal mischief charges and Toro was released from jail after serving two weeks of his sentence.

Always read any complaint or information against you and see if it makes out the elements of the offense charged. Always have your attorney make sure that all the facts (non-hearsay) if true would in fact make out the charges.

Friday, July 20, 2018

How to Violate a New York Conditional Discharge

The conditional discharge is the most common sentencing option in New York but if you violate you are then re-senteced. The judge can re-sentence to jail, probation, or a combination. This video highlights the various ways to violate a NY CD.

This ways you can violate a CD include many extras with a drug or alcohol based offense. In many DWI and DWAI drugs case the CD is a great end result because you self monitor and self supervise your obligations to the court.

New York State Probation on a misdemeanor DWI can be hell on Earth because you are regularly tested for alcohol and/or drugs. 

For the average adult person to be so restricted is difficult to impossible. You give up many of your constitutional rights to privacy and person. You will be subject to many unreasonable rules. 

I consider New York probation as having a parent with power over you. Generally parents lose control over you after you turn 18. They may influence you but have NO true power. Probation departments through out New York state run the gamut from easy to extremely hard on their probationers.

Wednesday, July 18, 2018

Can Speeding Violate a New York Conditional Discharge?

The most common New York sentence is the conditional discharge. It is most commonly given for one year, and has a specific set of terms and conditions. A CD in NYS is like no other, so don't try to compare CDs from anyplace else. It happens after you are convicted. Think of it like probation without a probation officer to check up on you. You monitor and supervise yourself to complete and perhaps provide proof of completion of obligations.

For a DWI CD, it may mean you need to complete the Impaired Driving Program, have an IID (ignition interlock device) on your car, and stay out of trouble for the year.

If people get into trouble in that one year they can be brought back to court and re-sentenced on their charge. The new sentence can include jail and/or real probation (with a probation officer).

But what does it mean to stay out of trouble with a NY CD?

NO new arrests (legal arrests)

NO new criminal charges (misdemeanor or felony)

NO new charges relating to higher level violations (harassment, disorderly conduct)

NO new charges relating to drugs and/or alcohol (Unlawful possession marijuana, public intoxication)

By itself a moving violation or speeding ticket will NOT usually violate a CD in NY. But if you receive along with that moving violations other charges, these may violate.

Reckless driving is a misdemeanor (crime) in NYS

AUO (aggravated unlicensed operation) is a misdemeanor or felony level offense as well

These will violate a CD. Discuss your situation with a local lawyer to weigh your options with any conditional discharge violation.

Can Speeding Violate a New York Conditional Discharge?

The most common New York sentence is the conditional discharge. It is most commonly given for one year, and has a specific set of terms and conditions. A CD in NYS is like no other, so don't try to compare CDs from anyplace else. It happens after you are convicted. Think of it like probation without a probation officer to check up on you. You monitor and supervise yourself to complete and perhaps provide proof of completion of obligations.

For a DWI CD, it may mean you need to complete the Impaired Driving Program, have an IID (ignition interlock device) on your car, and stay out of trouble for the year.

If people get into trouble in that one year they can be brought back to court and re-sentenced on their charge. The new sentence can include jail and/or real probation (with a probation officer).

But what does it mean to stay out of trouble with a NY CD?

NO new arrests (legal arrests)

NO new criminal charges (misdemeanor or felony)

NO new charges relating to higher level violations (harassment, disorderly conduct)

NO new charges relating to drugs and/or alcohol (Unlawful possession marijuana, public intoxication)

By itself a moving violation or speeding ticket will NOT usually violate a CD in NY. But if you receive along with that moving violations other charges, these may violate.

Reckless driving is a misdemeanor (crime) in NYS

AUO (aggravated unlicensed operation) is a misdemeanor or felony level offense as well

These will violate a CD. Discuss your situation with a local lawyer to weigh your options with any conditional discharge violation.

Saturday, July 14, 2018

Scott Miller is My Choice for Ithaca City Court Judge

I've known Scott Miller even before he was Judge Scott Miller. In my opinion no one in Ithaca, NY is better suited to be Ithaca City Court Judge. He cares about doing a great job. That is why he reviews his cases in advance of court, asks questions, and takes an active involvement in the process. He is certainly not a rubber stamp judge by any stretch of the imagination.

Refused a Breath Test: How to Get Your License Back?

Lots of calls about how to get a license after a DWI refusal

I have spent way too many hours going over and over the same things with DWI refusal callers. I make these videos to bring some clarity to how the DWI refusal in criminal court is separate but yet so important to the licensure.

New York Refusals are not illegal but they do have consequences.

The New York DWI refusal is unlike any other state. In some states the refusal itself is a crime with separate penalties. Written into the New York legal statute is a very important piece of information. Two penalties with the breath test refusal: one year license revocation (New York) and consciousness of guilt instruction from judge to the jury. That is the reason for your refusal (they can infer) is you were conscious of your own guilt. And one other provision that many people know nothing about.

The New York DMV allows NO license UNTIL a plea to a VTL 1192 Offense

You will not get your license or license privileges back UNTIL your criminal case is completed, and has a plea to a VTL 1192 offense. The 1192 offenses are either:

DWAI alcohol VTL 1192 (1) Driving while impaired by alcohol


DWI alcohol (common law) VTL 1192 (3) Driving while intoxicated

This plea of guilty to one of these can be by three means:

1. bench trial with the judge (non-jury trial)

2. plea bargain with the prosecutor (either the DWAI or DWI)

3. jury trial

Trials with DWI refusal cases are generally better to defend because there is NO BAC number. 

The prosecution has NO blood or breath blood alcohol concentration to hang their case upon. So the whole case hinges on the police testimony (opinion) of law enforcement. In some cases with witnesses they can testify as well either to your sobriety or intoxication.

All DWI common law (opinion) cases are a matter of degree.

In other words what was the degree of your impairment by alcohol? Were you merely impaired or truly intoxicated by alcohol. That is the million dollar question.

Thursday, July 12, 2018

California License with New York DWI

California and other out of state license holders have to be made aware of the challenges of dealing with a New York DWI. Administrative (license) penalties can be double. There are things you can do to lessen the problem.

California is notoriously slow when dealing with any car related matters. SOURCE: my son sold cars out there for many years. Getting a tag (plate) for your car is ridiculous (many, many months).

So first thing I tell anyone going through a New York DWI with a California license is, get your certified = official CA driving record as soon as possible. It has to be ordered by snail mail or you have to walk it through.

People who are residing in New York state should make this request because New York will not give you a conditional license (school, work, medical) without showing a fresh (recent) certified abstract showing nothing is wrong with your California driver's license.

Tuesday, July 3, 2018

New York Conditional Discharges The Three Myths

New York conditional discharges are the most common sentencing disposition so why are they so confusing. This video destroys the three main myths about CDs in New York.

The three most common myths about Conditional Discharges:

1. Conditional discharges do not dismiss any of your criminal or non-criminal charges.

The court outlines a set of conditions or obligations which must be performed. These will usually have dates assigned for completion. The judge may require proof that you went to classes, did community service, paid fines, got a drug/alcohol evaluation, went to therapy/treatment, or other condition.

The discharge is a release from your obligations with the court.

2. Conditional discharges do not seal any of the charges.

The public will be able to assess your records. They will show up on background checks. The only way to seal any criminal charges is by filing a sealing motion (after 10 years).

3. Conditional discharges are not forever.

The CD has a specific period of time, usually one to two years from the date of sentencing. This is a general stay out of trouble or do not get re-arrested for anything.

Conditional discharges can be attached to violation level and criminal level offenses.

Tuesday, June 19, 2018

New York DWI Breath Testing Victory: A Right to Discovery

The datamaster DMT breath test
New York state uses three machines for breath testing in Driving While Intoxicated cases. They are the Datatmaster, the Draeger, and the Intoxilyzer. The state police exclusively utilize the Draeger and have since time immemorial. Down in the city, and the five boroughs they use the Intoxilyzer units. What they all have in common with one another is The Simulator. What is a simulator? Why is it used with breath testing? Is it that important to the final breath test result?

But the bigger question: Does it matter whether DWI defense attorneys get simulator data? Is the recent victory to get all the information on each and every simulator going to helping the defense of DWI in New York?

Wednesday, June 6, 2018

New York Window Tint DWI Dismissed

This is a recent 2018 New York DWI that was dismissed by the judge. The initial stop was for  excessive window tint (too dark) but when the case went to court it fell apart. BTW In New York State the law is no more than 70% tint.

Friday, May 25, 2018

Breath Test Refusal Can't Be Used in DWI Trial

Requesting a Test After Two Hours of Arrest

One of the most damning things New York has is the jury instruction on breath test refusals. It allows the judge to tell the jury they can INFER a consciousness of the defendant's guilt (of DWI) if they refused to take a chemical test of blood or breath. Coming from a judge as an instruction on the law is a horrible hurdle on refusal DWIs. In the recent DWI case, the police waited till after two hours to request a test.

That doesn't make a chemical test of blood or breath inadmissible at trial BUT the refusal ...

Thursday, May 24, 2018

Police Can't Establish Stop Sign Location: DWI Dismissed

Police have to testify in DWI cases. You can not be tried based upon paperwork and police reports. They are hearsay and inadmissible. When attorneys challenge the stop of a car in a DWI the police have come to court and testify to WHY they stopped the car. In a recent New York DWI case that was successfully challenged the police officers could not sufficiently describe the location of a STOP sign.

Can comparing a police report to police testimony defeat a DWI?
Can even probable cause for going through a stop sign be challenged? 

Why Cops are Mean On DWI Stops?

Sometimes we get the phone call that is irate and pissed off about how the police handled their DWI stop. With some police departments it is more common and with others less BUT DWI can bring out the worst in people's temperaments. We see two types of DWI stops that bring the most heat or hate.

Do the police have a legitimate right to be mad with some DWI arrests?

What can you do to make your police stop and/or arrest for anything better or at least civil?

Wednesday, May 16, 2018

Are Marijuana Per Se Laws Coming?

Is Marijuana per se coming to New York?

We are at a cross roads with marijuana in this country. Cannabis use is trending nationally both medically and recreationally. Laws are changing for it's use but we have multiple standards that define when and if someone can drive. We have active delta 9 THC laws, inactive metabolite THC laws, and then we have "per se" laws.

We only have one drug nationally that is defined with a number and that is alcohol at .08 BAC. The only reason all 50 states adopted that number was by the coercion of the government. If they wanted funds for their highways then they needed to implement .08 BAC.

Are we going to see a marijuana per se law nationally?
Can cannabis be quantified by a per se law?
Is it fair to lump marijuana impaired driving with drunk driving?

Friday, May 11, 2018

Tully Movie Review The New York DWI Without Consequence

Tully is a Great Movie But No DWI Reality
I saw the new movie Tully that stars Charlize Theron. The movie is set in a NY suburb. As a New York DWI defense attorney I was taken back by it's treatment of a DWI accident.

Do movies have to distort real life? Can Tully remain a good movie in spite of it's fantasy about law and order? Should the movie have given more weight or a better treatment of the DWI?

Monday, May 7, 2018

How Long is Too Long? 29 month DWI Case

Waiting for court on your case
A recent appellate decision on a New York DWI case has me scratching my head. In People v. Pena-Encarnacion, Case Number: 2014-736QCR, the defendant was first arraigned on the charges August 29, 2011 and the matter ended in 2013. This case was appealed and decided last week in 2018!

It started with a man alleged to gone through a steady red signal, and to have been DWI in Queens, NY. He was charged with two different DWIs, common law DWI and DWI per se, over .08 BAC. The case ended with a bench trial (judge trial) 29 months later, yes that's no typo, twenty-nine months later. Being found guilty of DWAI alcohol by the judge. The case went up on appeal.

Did the higher court decide there was a violation of his speedy trial right?
Did the higher court decide there was any impropriety because the District Attorney didn't provide a calibration report till right before trial?
Did the higher court believe that the long delay affected his defense?

Friday, May 4, 2018

New York Has NO DUI But Six Types of Impaired and Intoxicated Charges

New York Cannabis and Alcohol Charges
People get confused all the time between the inconsistency of laws from one state to another. Some states have driving under the influence, others operating under the influence, others yet driving impaired and intoxicated. Now with recreational marijuana and medical cannabis in 30 states, we have even more confusion.

What are the key differences in New York state between impairment and intoxication?
Can you be found guilty of both impaired and intoxicated at the same time?
Is it better to be impaired than intoxicated in New York (legally)?

Tuesday, May 1, 2018

New York's Dirty Little Secret: Keeping Defendants in the Dark

New York's Secret NO Evidence Disclosure 

New York State has a dirty little secret. We are one of ten states where prosecutors don't have to hand over the evidence they plan on using against you. Evidence proves cases. Discovery is what the evidence is called. It's not like they don't ever have to provide discovery. They can choose to wait and wait and wait, then the day right before trial you get a package. Without early disclosure defense attorneys are in the dark. This is unfair and unjust but it happens every day in courtrooms across the state.

Do some district attorneys have an open file policy?
How does the lack of discovery impact the defense by your attorney?
How often does lack of discovery affect a DWI or DWAI drugs case?

Monday, April 23, 2018

DWI Dismissed High Beams Violation was an Unlawful Stop

Dazzling Lights Can Be Dangerous
BUT They Must Affect Driving

People v. Langhorne is a 2018 DWI case that went up to New York's high court on appeal. Police can generally legally pull you over for a traffic violation or an equipment violation. Langhorne was pulled over for using high beams. The lower Town court found the police officer had sufficient proof to support the Dazzling Lights (high beam) VTL 375 (3) violation. When reviewed by the upper court this New York DWI .08 or more breath test case was successfully dismissed for lack of probable cause.

Thursday, April 19, 2018

Ithaca DWI Lawyer Blog is a Top 40 NY Law Blog

New York Law Blogs
Ithaca DWI Blog is Top 40 NY Law Blog
I was just surfing and saw our blog is in the top 40 of New York law blogs. This was in Feedspot.com. So naturally I'm excited about our body of work after 760 blog posts in the last 9 years. To me it's more than that because explaining New York law and breaking things down is something I love doing.

Wednesday, April 18, 2018

Three Things You Gotta Know to Celebrate 420 Safely

Celebrate 420 Safely in NewYork
Ok 420 is coming this Friday, and I am ever mindful of the power of the flower. Marijuana is truly a remarkable plant that can help many people. I believe it the key to this opioid crisis that is killing thousands of people. It's uses medically for PTSD, anxiety, and a host of autoimmune conditions is staggering. Unfortunately it is still a federally controlled substance.

Using cannabis in New York be mindful of just three No's and ONE huge positive YES...

Friday, April 13, 2018

#Vanlife, Marijuana, and Your Right to Privacy

Is Bong Bear Probable Cause?
Millions of people have embraced a new way of living called Vanlife. A lifestyle that is mobile and free. Living out on the road they say "is simple but certainly not easy." I am fascinated by the legal ramifications of choosing a home life that is on wheels.

Is your reasonable right to privacy in danger by choosing van life?
Is your 4th amendment intact and upheld when the police want to search your mobile home?
Does the future hold challenges for those that partake in marijuana and van life?

Friday, April 6, 2018

Will Connor McGregor Be Found Guilty of Assault?

Will a Corneal Abrasion be Enough to prove assault?
Recent video has Connor McGregor, the UFC fighting champ throwing a hand truck  into a bus window. The window shattered and those inside could have been hurt. Mr. McGregor has been charged by the police with felony criminal mischief, and three counts of misdemeanor assault.

Will the 3rd degree misdemeanor assault charge in New York hold up against McGregor?

Will Connor McGregor be found guilty beyond a reasonable doubt from the assault charges?

Is Connor McGregor Going to Jail?

From high times, McGregor is a fun Irishman

UFC fighting champion Connor McGregor just got into some trouble in New York. He attacked a bus full of UFC fighters and took a hand truck to one of bus' windows. He's charged with felony criminal mischief and misdemeanor assault.

Between a normal person (that is not a celebrity), and McGregor what is going to happen in terms of court and this process?

Was alcohol involved? Does the fighter have an alcohol issue? Does McGregor have an anger management problem? Does McGregor have an immigration issue?

Felony Charges for Marijuana Brownies

Marijuana and New York State Criminal Charges

Over the course of my years of practicing in the Finger Lakes region we have defended many college students from SUNY Cortland, SUNY Binghamton, Cornell University, Ithaca College, Keuka College, etc. Marijuana use seems to go with college like cereal goes with milk. 

It is now legal recreationally or medically in so many states BUT some people think that New York State has completely decriminalized marijuana, sometimes it is only charged as a violation, but even in relatively small quantities it can be charged as a misdemeanor or even as a felony (if sold to minors). 

The New York Times recently did an article on Marijuana's New York history. 

Is legalization close at hand? 

Marijuana in Your Car in New York State

It is always a bad idea to travel with marijuana. Because of it's pungent and familiar odor police have a reason to go through your belongings. If you are stopped for speeding, an unsignaled lane change, etc. watch out. Things go south fast.

NOTE: After any lawful arrest in an automobile in NYS the entire car is subject to search top to bottom, inside and out. So much for your 4th amendment rights in New York State.

Walking Outside Smoking Marijuana in New York

Outside, in a public park or on the street we have a different story. Police will sometimes make a false statement ie. lie to get an arrest. I know, as unbelieveable as that may sound Virginia, it happens. Law enforcement will tell college kids that they "have to" make a search. That if they want to avoid an arrest they should empty their pockets, and to show them what they have or else? Legally they could only pat you down for weapons, but to go into your pockets requires permission or probable cause, but once the marijuana is exposed to public view we have a full blown misdemeanor.

Ranking New York State Marijuana Offenses (least to highest level) 

Here is a ranking of the New York State Pot Laws from least severe to more severe (in terms of penalties and consequences):

1. UPM under Penal Law 221.05: Unlawful Possession of Marijuana

Is not a crime (criminal level)it is merely a violation BUT since marijuana is a controlled substance under FederalLaw a plea of guilty will make you ineligible for Federal Financial Aid (thank you President Clinton) for one year. It as to go on your FAFSA application. 

Side note: Marijuana is not considered a controlled substance under New York State Law but we are discussing Federal Student Loans, Federal Work Study Monies, Federal Grants, and the Federal Hope College Credit. 

UPM is possession of less than 25 grams of marijuana. 

In the majority of these cases (with first time offenders) your attorney can move for an ACD (adjournment in contemplation of dismissal) or a straight dismissal of the charge. The judge will set the term of staying out of trouble (no new criminal charges) FOR EITHER 6 MONTHS OR ONE YEAR. It is in his discretion. Also in his discretion is whether there is a substance abuse evaluation. Some judges also require community service. 

The next level up of Marijuana offense is:

2. CPM under Penal Law 221.10: Criminal Possession of Marijuana in the 5th degree

This where the marijuana is either open to public view, burning, or where the amount is over 25 grams but less than 2 ounces. CPM is a crime. It is class B misdemeanor. 

The next level up of Marijuana offense is:

3. CPM under Penal Law 221.15: Criminal Possession of Marijuana in the 4th degree. This is where you have more than 2 ounces but less than 8 ounces. Now that's what the District Attorney will say is real weight, and they are thinking at this point you are dealing drugs and not just possessing them for personal use. CPM in the 4th is a class A misdemeanor.

4. Penal Law 221.35 is for the Sale of Marijuana. All that is necessary is less than 2 grams or one joint/blunt. It is a Class B misdemeanor. Sale is a very loose term under the statute. Sale also includes gifting or an exchange of anything, as no "consideration" is needed under the statute to consider it a sale.

5. Penal Law 221.40 is for the Sale of Marijuana. Less than one ounce. It is a Class A misdemeanor. 

The next two levels are where we move from misdemeanor level offenses (less than a year in jail) to felony level offenses (more than one year in jail). Misdemeanor offenses can be handled by City, Town, or Village Courts. Felony charges are only handled at the County Court level.

* Beware that Sale of More than ONE OUNCE moves the offense to Class E FELONY Status in New York State (punishable by up to 3 years in State Prison). 

* Beware of New York State Penal Law 221.50. Sale of Marijuana to a minor (a person less than 18 years old). It is a Class D Felony Status. Which is punishable by a term of 4 to 7 years in State Prison, that's not county jail. 

I would like to end off with the GOOD NEWS about number 1 through 5 above:

That Penal Law 221.05 UPM (Unlawful Possession of Marijuana), Penal Law 221.10 CPM (Criminal Possession of Marijuana) in the 5th degree, Penal Law 221.15 CPM (Criminal Possession of Marijuana) in the 4th degree, Penal Law 221.35 Sale of Marijuana, and Penal Law 221.40 Sale of Marijuana are all covered under the First Time Offender ACD statute.

Getting Marijuana Charges Completely Dismissed with New York Criminal Procedure Law Section 170.56

Called an "ACD for Marijuana" as in your get one free bite at the apple. In New York you can use this ACD section one time in your lifetime.

Captioned as "Adjournment in contemplation of dismissal in cases in involving marijuana."

If a person qualifies under the statute a motion can be made by his attorney, and then his marijuana charges may be dismissed in the future, and all his official records and papers relating to his arrest and prosecution, whether on file with the Court, the police, or the New York State Division of criminal justice services will be sealed and not made available to the public or private agencies. 

Upon the granting of such an order by the Court, the arrest and prosecution can be considered and deemed a nullity (as if they never happened) and the person shall be restored to his or her pre-arrest status.

If of course someone has has other prior charges (relating to marijuana and/or other drugs) then his attorney can potentially negotiate to some other non-criminal disposition, such as disorderly conduct. This is a violation and all the records of the arrest and prosecution would be sealed at the local level. 

Friday, March 30, 2018

The Potential Conflict of Interest in Shared Representation

Multiple defendants
from aboutthemafia.com

We have represented hundreds of people over the years. Most of time it is an easy decision to represent just one person, and to have that person’s interests foremost in mind. But sometimes we are asked to represent a husband and a wife or multiple people involved in a crime. 

Is there a conflict if they are related? Is there a conflict if a defense can make one guilty and one innocent? Is there a conflict when one person could be more guilty than another?

Can a lawyer represent more than one person if more than one person was involved with a crime?

Thursday, March 29, 2018

Public Defense 18B Lawyers Not Always the Best Defense

There is a New York Times article on a public defender (appointed) lawyer in Texas. The judge is accusing the attorney of spending too much time with the client, billing the state too much money, and spending resources on a vigorous defense.


Do New York judges routinely cut public defenders bills?

What is the state of affairs with New York 18 B lawyers?

Does the state have to provide the best defense or merely a reasonable one?

Sunday, March 25, 2018

Anonymous Police Tips and DWI

Anyone can call in a police tip. But whether that police tip will hold up constitutionally is another story entirely. Anonymous tips where the caller chooses to not reveal who they are face greater scrutiny. Because anonymous tips are less reliable and credible they must be more specific.

One recent DWAI drugs case (2018, People v. Feinberg) was tossed because the tip wasn't up to snuff. Why?

Wednesday, March 21, 2018

Can the Prosecutor Challenge Your Getting a Hardship License After a DWI?

Prosecutors (district attorneys) can definitely make life harder. This is true across the spectrum of criminal defense but especially with DWI cases. Some have a self righteous stance on drunk driving. You would think after all the years they wouldn't, and even though I have represented quite a few attorneys some still like to beat the holier than ... drum.

So even after what you would think would be a given, a special hardship license that doesn't even concern them, here I am once again defending my client's rights to one. Remember that nothing is guaranteed, except death and taxes.

Can a prosecutor challenge your getting a hardship license?

Tuesday, March 20, 2018

Ending the New York DMV IDP Confusion

This is an update to my old post about the former New York DMV DDP (drinking driving program). That original post got the most views over the past years. I looked it over and it definitely needed a refresh as we all do from time to time.

New York's DMV's Drinking Driver Program is NOW called the IDP (impaired driving program) 

It is usually a given that you will eventually take it if you have a New York DWI or DWAI case. Some of the common issues:

1. How does the alcohol/drug evaluation counselor determine the need for treatment?
2. When is the IDP mandatory?
3. Can I get my full license privilege back early by completing the IDP?
4. How does my conditional license pre conviction relate to my conditional license post conviction?

1. Alcohol/Drug Evaluations with OASAS certified providers have a wide range of formats. 

The most common format is the two visit, screen and evaluation. I have heard of four visit evals. In some of the wealthier parts of New York State (not Ithaca), I have seen fees of $125 a visit with four visits to reach a conclusion. In Ithaca, it is around $80 a visit. I have seen evaluations with drug/alcohol screenings (Urine tests) and breath tests. Sometimes these may surprise the unwary.

You should discuss with your lawyer you use of controlled substances, prescribed or not. Because if they show up unexplained in the urine, this surprise could bring more grief than needed to the process.
The evaluators can be very subjective as to who requires treatment. I have spoken to some evaluators who feel the charge of DWI alone or a breath test with a BAC of over .08 qualifies a person for twelve weeks of three time a week twelve step classes. I have heard that positive responses to the following questions could automatically signal an abuse diagnosis:

Question 1: Do you have or had you had any hangovers?
Question 2: Do you think it is OK to have one drink and drive?
Question 3: Have you drank any alcohol since your arrest?

I would want a definition of hangover before answering that first question, but then I'm an attorney. Is feeling tired or bad the day after drinking a hangover? I sometimes feel that way after eating too much late night ice cream, would that qualify as a hangover? Be careful how you answer any question.

Again discuss with your attorney before going and who you are going to. You do NOT want to be misappropriately diagnosed. 
Now some evaluators are fair and some are not. Some will view the totality of person's life and behavior before rendering an opinion while others unfortunately do not. I have been surprised in both directions. Sometimes my clients did not get a treatment recommendation when in my opinion, half common sense and half legal, they needed help. And while I am not a drug/alcohol counselor you can often tell who needs help.

Other clients who only drink socially, never to excess, and with no underlying problems were given an alcohol abuse diagnosis. Please NOTE: You are allowed a second opinion BUT you really want this first evaluation to count because most certified evaluators will input into the DMV computer system directly to avoid your doctor (evaluation) shopping.

2. The IDP is mandatory in the following two situations:

-When the Court orders it as part of your CD, conditional discharge (a condition of your compliance with paying fines, and the VIP (victim impact panel)).

-It is also mandatory if you want a conditional license (New York) privilege post conviction.

Remember the NYS DMV only awards privileges for NYS whether that conditional license is good (valid) in any other state is ?

This is a crucial distinction. 

There is a PCCL (Pre-Conviction Conditional license) while you await a final disposition of your criminal case. It is given by the DMV after 30 days have run on your hardship privilege (the hardship privilege license is a conditional bridge license). The hardship privilege is merely for the 30 days following your suspension pending prosecution which occurs at the initial appearance if your BAC was .08 or higher.

When your criminal matter is resolved, usually at sentencing, you are supposed to "hand in" your pre conviction conditional license (PCCL) to the Court. If you or your attorney request, the Court will give you a 20 day stay of your suspension period. In other words, you will get your full privilege to drive back for 20 days from your sentencing date. You will get another 3 part form (like the hardship privilege document) that states the stay period, and the start of the suspension period. If after the 20 days have run and you have not signed up for the DDP classes you now have NO license privilege.

You are expected to sign up for the DDP to get a Post conviction conditional license, and you will get your full license back after the program is completed (for first time DWI offenders over the age of 21) and you pay "somemore" DMV fees.

3. The great news is after a total of seven weeks (16 hours) of IDP classes you will get your full license privilege back even if you had a DWAI: 90 day license loss or a DWI: 6 month license loss. There are some exceptions where the DMV will not shorten the Court mandated suspension period. See NOTE below.

You will have a 6 month PROBATION with the DMV on your new driver's license. No tickets of any type or you will lose this license.
If you are still driving at this point, without signing up for the IDP you are driving on a suspended license. If you are pulled over without a post conviction conditional license you are going to be charged with an AUO (aggravated unlicensed operation), a misdemeanor.

NOTE: Even if you complete the IDP the DMV will not give you back your full license privilege until the end of the revocation/suspension period:

1. if you originally had refused the breath test (the chemical test back at the station),
2. if you committed the alcohol or drug-related violation while driving a commercial vehicle,
3. if you were under 21 at the time of your arrest.
4. if this is not a first time DWI or DWAI offense in your lifetime (since 2012)
However, you can still complete the IDP and maintain your post conviction conditional license while the suspension/revocation period runs.

4. Do not confuse Pre and Post conviction Conditional licenses. The "pre" is given while awaiting the resolution of your criminal case without taking a IDP class. The pre is before your case is resolved. The "post" is only given in conjunction with signing up for and taking the IDP classes.

So I hope that this sheds some light on this pre, post, PCCL, IDP, and DWI alphabet soup. If not call or shoot me an email.

The big disclaimer: The Power of the DMV, especially since 2012 

The DMV has the ultimate discretionary powers to deny any driving privileges (limited or full) and/or relicensure depending on the motorist’s driving history and any other factors they wish to consider. This discretion may be exercised despite eligibility and after the minimum statutory periods of revocation or suspension has expired. Always check with the DMV concerning your driving status before you drive. Sometimes the Court may have sent the wrong paperwork or no paperwork to the DMV. In addition, if the DMV informs you that you do not have to do the IDP but the Court does, you still have to complete the DD.

Bottom line is get good guidance going through this whole process. People who do not will be slotted for a bad diagnosis and potentially a lot of treatment. Rehabilitation for a problem you do not have can be time, energy, and money consuming. All it takes is one person with power and authority to make your life a living hell, imagine multiples.