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 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

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.

Sunday, March 18, 2018

NO DWI With a Keyless Remote

Key Fobs and New York DWI Don't Mix
Things are most definitely changing. Is New York DWI law keeping up? It's 2018 and most cars are no longer analog they are digital. What this means is that there are more computers and electronics in them than ever before. So many new cars no longer even use a key. Keyless entry, operation, and function are now more the norm. I even have car with a permanent key (can't be removed) but you still need a key in your pocket to operate it.

Does having more bells and whistles change the nature of the crime of DWI?

Does having keyless entry change DWI while in a parked car?

Thursday, March 15, 2018

Why You Won't Always Get a Second Chance: The New New York Sealing Law

The new New York Sealing law under CPL 160.59 is wonderful and great. It offers many second chances for a fresh start and a new beginning BUT you have qualify. After taking call after call and email upon email many unfortunately don't qualify. Some have even said other law firms and their paralegals said sure you qualify but this just wasn't true. The first hurdle is always eligibility.

The New Law Under CPL 160.59 for Sealing is Specific

If you don't meet all the criteria for eligibility you don't get to use the law at all. Most qualify for    their particular crime, NO sexual based crime and NO violent crime. Most qualify for time, more than 10 years.

The number one reason for disqualification is having more than two criminal convictions anyplace (any state) and within your lifetime.

Wednesday, March 14, 2018

Getting a Different Judge 101

Judges like all people come in different shapes, sizes, and colors. Getting one you like is usually not like picking a crayon. So if you are left with NO choice you must do your best with the judge you have.

Understanding the psychology of that judge. How do they truly think, feel, and deal with different crimes can make a difference in the outcome of your case. Ultimately the judge will be the one deciding your fate.

Judge recusal is difficult at best and not usually a possibility. The judge you start with is generally the judge that you finish with. So remember to be nice to everyone including the judge.

Recuse. To disqualify or remove oneself as a judge over a particular proceeding because of one's conflict of interest. Recusal, or the judge's act of disqualifying himself or herself from presiding over a proceeding, is based on the Maxim that judges are charged with a duty of impartiality in administering justice.

Unless you know the judge or someone close to you knows the judge, getting the judge to say he or she can't be fair and impartial is not happening anytime soon.

Sunday, March 11, 2018

Prosecutor Says NO to New York Sealing BUT Judge Says Yes!

The new New York sealing is great, and it offers second chances BUT it's not guaranteed. The prosecutor can contest (oppose) the sealing of any criminal convictions. A recent case shows just what mindset the district attorney can bring to the table.

The Case is People v. Jaime S. Case Number 4517/2003 just decided January 31, 2018. In the case the prosecutor really had two arguments against sealing the past felony convictions:

1. You already have a job, you don't need or require a better job.
2. Future employers should know about you (your past felony criminal convictions).

The judge disagreed entirely. Permitting this person to move forward in their professional life.

The case was about an IT (information technology) officer who wanted to move forward in his professional life. He had two felonies convictions involving computers from over 15 years prior.  Job offers were rescinded over and over when it came time to do the background checks even though he was highly qualified and skilled with computers. He wanted these high paying and more challenging positions BUT the old felony convictions were holding him back. 

He applied under New York Criminal Procedure Law 160.59 to have his convictions sealed so he could move on with his life and the prosecutor said no. Even though he paid his dues, did probation for years, was released early from probation, paid thousands in fines, and lived a law abiding life for    over a decade the prosecutor felt he should always have the curse of old convictions.

The judge disagreed with the district attorney and allowed sealing. There was no dispute this was a "productive, stable, and successful member of society." But the prosecutor said that "societal utility" would be better served by keeping his convictions unsealed. 

As the judge makes clear, the new sealing law is to maximize the chances of this individual and remove any blocks to his future.

The broader question then becomes, as the People implicitly argue, whether there is reason to deny him relief because the impetus and underlying rationale for the statute was the desire to help those whose criminal convictions prevented them from fully integrating into society, and not someone in defendant’s position. There has been increased discussion in recent years regarding the collateral consequences of a criminal conviction. One of the more serious of these isthe limited access to the labor market which a conviction brings (Mackenzie J. Yael, Expungement Law: An Extraordinary Remedy for an Extraordinary Harm, 25 Geo J on Poverty Law and Policy 169 [2017]).

The New York State Legislature enacted CPL 160.59 in conjunction with an amendment of the Penal Law which raised the age of criminal responsibility from 16 to 18. Concern about the collateral consequences of a criminal record was a core concern of the proponents of the bill (id.). The legislature made sure that a court reviewing a sealing application would consider its concern by requiring it to weigh “the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reentry into society (CPL 160.59 [7][f]). It is possible to derive from factor (7)(f), as the People do, the conclusion that if a person is already well integrated into society, there is less need to seal his or her record. 
It cannot be denied that the defendant is not among those whom the bill was primarily intended to benefit. He has had no difficulty achieving meaningful employment despite his criminal record, and has reached a comfortable economic station in life. But although he seems integrated into society and economically secure at present, there is no guarantee that such will always be the case. He seemed secure after his conviction but his status was upended in 2010 when the company that he was working for was purchased by another. The new regime offered him a position but changed its mind after conducting a background check. He suffered from anxiety and depression, and was forced to live on his savings until he found a new job. Given his record, it was not a foregone conclusion that anyone would hire him. Circumstances change, and there is no way to be sure that anyone is permanently secure in life. Whether or not he ever tries to advance himself, his conviction may yet again undo him. It makes little sense to deny the defendant relief under the statute until such time as his life takes a turn for the worse.

Granting his application now may ensure that day never comes.

Saturday, March 10, 2018

Pot Smoking and New York Drug Alcohol Evaluations

Often we are asked what to do when facing a drug/alcohol evaluation and being a marijuana user? You really only have two choices: reveal or don't reveal. I never tell my clients to lie, that is there decision. Drug/alcohol evaluations are one of those areas in which you have to use your judgment.

Public Crimes Bring Your Private Life Public

What you do privately comes into play when you make your life public. And any DWI, DWAI drugs, or other type of drug charge brings your private life public. Even though pot is legal either recreationally or medically in so many states it still has a bad rap. Many judges, prosecutors, and even probation departments are filled with people who view pot in a bad light. They do not see cannabis as anything but a dangerous substance, a gateway drug which leads to harder substances.

This mis-information about cannabis is staggering. And it continues to receive bad press even in 2018.

It has so many good uses, and it is my humble opinion that it is far better to use marijuana than so many other legal drugs.

Saturday, February 24, 2018

Judge With Cocaine Problem Wrongly Uses Opinion Letters and is Disbarred

Suspension vs Disbarment?
I have previously blogged and videoed about using Opinion Letters in legal defense. A recent case of a disbarred Pennsylvania attorney gives further proof of the true value of properly utilized opinion letters. This attorney provided the wrong type of letters.

How to use an opinion letter is important but what type of letter to use in each specific case is crucial. The difference in this case was between a period of suspension from practice, and a disbarment. In other words a temporary professional license loss versus a lifetime license loss.

What did this attorney do to have to face a disciplinary hearing?
What letters did he and his attorney provide?
Why were those letters ineffective at saving his license to practice law?

Friday, February 23, 2018

When is a Plea Offer Final? Playing the Defense Game

'Cause baby it ain't over 'til it's over
                                                                                        Lenny Kravitz

In Court once we have a plea offer accepted on the record and then sentencing on that offense
there is no going backwards. BUT way before the plea is accepted there is room for improvement
in the offer. From the moment of your first court appearance everything you do
and do not do will have an impact upon your offer and your final outcome.

All Plea Offers are NOT Final Plea Offers

Sometimes prosecutors will let you know this is the final plea offer right from the get go. But not always and even if they say that, yes even if they say THIS OFFER IS IT, the judge can step up and say hey district attorney how about...

Judges Get Involved in the Plea Bargaining Process

Some judges are very hands on. They seek the justice that your client deserves. They often balance out a harsh (polarized) prosecutor. They don't want very single case resulting in a trial. In fact since most cases don't go to trial because trials are costly both in time, resources, and money judges will assist in settlement. Pre-trial conferences gauge both sides willingness to deal and to negotiate a fair outcome.

Looking for Friend in the Local Probation Department 

You know the whole phone a friend on the show "who wants to be a millionaire." Well we as defense attorneys look for a friend to help our client. Who can be our ally in the plea process: will the judge be reasonable or maybe our only hope for a level headed and reasonable plea offer if PROBATION.

New York State probation departments in general will look at a person's whole life. From the top to bottom, inside and out they will look to assess the whole of your arrest, and make an appropriate and fair recommendation for sentencing. And even though we can't always count on their generosity or kindness it is nice to know we can sometime have a friend in probation.

Probation writes a report. This evaluation and report can come either before or after the plea offer is accepted. This report can evaluate needs, make treatment suggestions, and finally weighs in on the plea offer and sentencing. For the most part probation will likely be a liberal determination based in rehabilitation and treatment. They tend to shy from moving straight to punishment and incarceration in most instances.  

So it all comes down to if the prosecutor is too one sided? 

Will the judge be the friend we need?

Will probation be the friend we need?

Believe it or not sometimes probation and the judge are the ones looking for harsh punishment.

The Poker Game: Plea Bargaining and Criminal Defense 

If we are without a friend in the judge or probation, then the district attorney may be our ally in persuading the judge. Assessing all the parties and their viewpoints allows us to figure out where, what, and how we can achieve the best outcome. A tricky bit of play, kinda like a poker game.

In poker you don't always have the best cards but the game is truly based in psychology. Your opponents may not know all your cards either. Some cards are showing while some are not. The best hand doesn't always will the game. The best players play the long game not the short one.