Thursday, January 25, 2018

New York Criminal Defense Begins with Facts Versus Opinions

Facts are NOT Opinions
How many phone calls and email we receive each day asking about different legal situations and circumstances. These are people confused by the legal process, and believe me it can be quite complex. But some parts of legal defense are less complicated and far more important.

It all begins with differentiating FACTS from OPINIONS. In every legal situation (and non-legal as well) there are certain FBCs. Criminal defense attorneys refer to them as the Facts Beyond Change.

In a DWI case what are the general facts we need to deal with?

Why is a DWI refusal case really a case of proving intoxication primarily on opinion?

How can we better defend and confront opinion?

How can we better defend and confront even the facts?

The "He Said, She Said" of Criminal Defense 

"There are always at least two sides to every story."

Versions of the same story can be different because people are seeing the same event from different perspectives. People also bring their prejudices and mental filters to everything they see, hear, and experience. They sort through information in their brains and then fill in the blanks.

Eye witness testimony is notorious for inaccuracy based upon this psychological gap filling. There is also a police version of the story which can either be first hand or even their expert "law enforcement" opinion based upon interviewing witnesses at the scene. An opinion is an opinion is an opinion or why husbands say "yes dear" to their wives.

Criminal Charges? 

What Really Happened is Vastly Different Than What They Say Happened

Recently someone called me facing two criminal charges: they were charged criminally with harassing in the second degree and menacing in the third degree and we had three stories of the same event.

The accused version of the events
The victim's version of the events
The police version of the events (post event)

And every version of what actually happened was different. What they even heard was different. In the heat of the moment your brain can blank out. Emotions and adrenaline are powerful inhibitors of clarity. The flight or fight response kicks in for  your protection in survival mode but is a horrible mechanism for accurate storytelling and mental recordation of an event.

All everyone agreed with was that there were four people yelling at each other and a pit bull who didn't bite anyone. Everything else was a melee of subjectivity. Understanding what people meant by their words and their actions created an atmosphere of angry confusion. Heated conversations (yelling) are rarely, if ever mentally coherent.

The New York DWI Has Simple Facts BUT with Multiple Interpretations 

  • STOP

What they have to PROVE by facts or opinion?

In every DWI we have driving or the looser term "operation" which requires NO actual driving just the intent to drive. Somewhere in time the police have to show there was to be or there was operation.
Is he driving or operating a car?
In New York he may be DWI?

Police opinion of operation/driving:

Coming to the scene of an accident, was there a driver or potential driver nearby?
Did they own the car?
Did they have reason to be walking on the road in the middle of the night?
Did the police come to a parking lot or shopping center to find someone behind the wheel?

Even without witnessing the actual driving police can prove driving by:

  • Your admitting to driving.
  • A neighbor or friend or relative witnessing your driving.
  • Inference that your car is still hot, and you have arrived home or at a location, so you must have drove.

NOW please remember that NOT all states are the same in as to DWI operation. In Florida, the police must actually witness you in the car, behind the wheel, committing the criminal misdemeanor or felony. In New York just inference based upon the facts and police opinion can support criminal DWI charges. 

The DWI STOP of the car merely requires a legal reason to: usually an equipment or moving violation. Again, the stop can be based upon the opinion of your driving by the police and not anything you did wrong.

When it comes to police contact and police roadside testing the best examples of fact versus police opinion lies within reviewing New York's Common Law DWI.

The New York Common Law DWI Refusal Case is Primarily an Opinion

With a NYS common law DWI charge (VTL 1192 (3)) there is only police opinion supporting unsafe, imprudent, and careless operation of a car. They don't have a measurement of your breath or blood alcohol. Their police tests at roadside are again a subjective assessment of sobriety.

1. There is NO baseline because this police officer doesn't know this person's normal behavior or abilities.

Is this person sick or on any OTC medications?
Does this person's health issues impact their performance?
Is this person whose speaking, hearing, or seeing abilities are impaired or disabled day to day?

2. They (the police) still rely upon many non-standardized tests with no agreed upon methodology.

The alphabet test
The finger to nose test
The standing with feet together and balance test

3. The conditions of testing further prejudice and unfairly slant towards evidencing intoxication and impairment.

How was the weather? Cold, snow, ice, wind can all impact outdoor physical performance.
Were the tests done with traffic whizzing by?
Were they tests done on a flat and clear surface?


These are the facts versus the opinion of one case. In the vast majority of Upstate DWI cases we do not have any video of the arrest or police stop of the car. Sometimes we have video back at the police station (post arrest).

FACT: The police pulled over a car.
OPINION: The car had rolled through a stop sign? They were cited for failure to stop but did this actually happen is the question? Police can look for and find a reason to stop your car. I don't think anyone drives perfectly. Follow someone long enough and they will mess up.

FACT: The driver admitted to drinking alcohol that day.
OPINION: The driver was under the influence of alcohol? Consuming alcohol and being impaired or intoxicated are vastly different. That is why there is NO law against drinking and driving just being unable to drive safely after drinking alcohol or taking drugs.

FACT: The breath (chemical) test showed a .07 BAC.
OPINION: Was the machine number accurate in this case? This test was given after the driving so what was the BAC at the time of driving? Was the true (and accurate) BAC higher or lower?

Perhaps you are also wondering, How could the police give someone a DWI for being under .08 BAC? This person's BAC was .07? Well common law DWI even with a low breath test is based upon the police's opinion of your behavior. If you are not walking, talking, and acting like what they believe is (or represents) a sober person then you MUST BE DWI?

This is where seeing all the issues with facts versus opinions weeds out the strong evidence DWI cases from the weak evidence DWI cases. Strong evidence is usually NOT just opinions and subjectivity.

Strong evidence that are DWI case FACTS:

1. You admit to being drunk.
2. You admit to drinking too much.
3. You admit that you shouldn't be driving a car.

Admissions are some of the strongest evidence against you in a DWI case. This is true with or without a breath test. Sometimes your performance may vary, sometimes tests are inaccurate BUT your admitting to any crime goes beyond all of that.

Lawrence (Larry) Newman is a criminal defense and DWI lawyer in Upstate New York. He is a partner in Newman and Cyr a boutique Ithaca, NY law firm focusing on defense in the Finger Lakes region.