Is a New York State DWAI (driving while ability impaired) on my record Forever?

As an attorney who publishes a lot of video, articles, etc I get my share of phone calls, texts, and emails. Put yourself out there, and I do, and you get asked questions. Sometimes I have answers, other times I need to find stuff out, and sometimes I'm SOL, I don't know and noone else does either. Frustrating as all that is I believe that people deserve, yes I said it deserve the truth. In the words of a great movie actor, "you can't handle the truth" is often so true because people want lies. They want to be lied to about outcomes, they want to be lied to about the things that hurt, the things that scare and concern them. Either they want to hide their heads in the sand or they look for some slick lawyer to tell them a bunch of BS. It is normal. It is human nature. What it is not is smart. Smart faces the truth head on. Smart deals with reality. Smart doesn't delude or water down "what is." Smart confronts "what is."

"What is" is that people make mistakes. They make mistakes all the time. This is neither good or bad. It is merely a fact of life.

So to the answer to the original question: A NYS DWAI (VTL 1192 (1)) is going to stay ON your record, the record of your NYS arrest, your NYS file, your NYS fingerprints, your NYS mugshots Forever! that's 4ever for those younger than me. It is only a violation but a violation that lingers. Even those most NYS violations get sealed (records destroyed), this one doesn't. It will be there after 30, 40, 50 years of your life.

Guess what, District Attorneys will bring it up, and seek to use if against you in the future if you get another DW (driving while) even if it is it from 30 or 40 years ago. "They" believe you are merely a drunk driver that hasn't been caught in 30 or 40 years. They will seek out jail, probation, and anything else they think you deserve as a "habitual" offender. They do not believe in live and let live, or redemption, or the passage of time, or that you should be given credit for your stable job, four kids, and paying your taxes over those 30 years. You want fair, you better move to another planet.

DWAI is merely a violation (a traffic violation) with no points but some states and Canada will still view it as a crime. States like Florida don't have a DWAI and see our violation/offense in the same light as their DUI.
Canada will not automatically allow you into their country after a NYS DWAI. They don't have one either, an offense like ability impaired.

My final thoughts:

It (a DWAI/DWI) will NOT prevent you from "being or doing" anything of any magnitude, doctor, lawyer, or congressman


Will some people/future employers see it as horrible and bad? yes, but they might also not like something else about you, legally they cannot use any violation or crime against you for employment but your breath, hair, attitude is all open game lol some people/judges even think "pot" is a bad/gateway drug, is it? everyone will have an opinion, don't they always!
Get "educated" both in and out of school about a great many things, life is a school, a DWAI/DWI is a lesson, ask me about the students I represent with MBAs, and Phds that are facing felonies, talk about hurdles, DWAI/DWI is merely a bump

Learn this:

"YOU" will always decide and direct your future not a mistake you had in judgment on one particular moment in time,

DO NOT ever let this or anything else ever stop you from pursuing your dreams
all the best
 
Larry Newman

The New York DWI is a Two Headed Monster

In New York State if someone does (as in takes) the breath test, more accurately known as the "chemical" test back at the station then they will be charged with two counts of DWI.

1. DWI Common Law VTL 1192 (3): The government must prove (beyond a reasonable doubt) that you (the operator) were incapable (to a substantial extent) of operating the automobile both mentally and physically as a reasonably prudent driver. This usually is through the stop officer's (the arresting officer) testimony concerning your driving, behavior, appearance, testing, odor, etc. In other words, his "subjective" opinion.

2. DWI Per Se VTL 1192 (2) A BAC (Blood Alcohol Concentration) of .08 or higher or Aggravated DWI Per Se VTL 1192 (2) (a) A BAC of .18 or higher. The government needs to prove (beyond a reasonable doubt) that the breath test was given within 2 hours of your arrest, was properly administered, by a currently licensed BTO (Breath Test Operator), using properly mixed chemicals, with a calibrated and maintained breath machine. This of course is an indirect measurement of blood alcohol via a breath measurement.

The two most common machines are the Datamaster DMT (used by town, village, and city police depts.) and the Draeger Alcotest (used primarily by the N.Y. State Police). These machines are accepted by the Courts as approved for BAC testing.

There are various ways to attack both the DWI counts but remember that if you took the test it will need to be dealt with and can not be overlooked by your attorney. The per se count becomes the primary target because it is a number that the prosecution will mention again and again.

I believe that a shotgun approach to arguing that all breath testing is inaccurate and unreliable (fraught with error) will usually fall on deaf ears. A focused and detailed strategy is the most effective way to defeat each count.

Depending upon the specific facts of each DWI case arguments can be waged against:

1. Whether the procedures and protocol of breath testing were adhered to?

2. Whether the machines were calibrated in a timely manner?

3. Whether the machine in question had any recent repairs or issues?

4. Whether the chemicals were properly mixed and/or expired (out of date)?

So records need to be examined carefully and potentially subpoenas must be issued against the police to get ALL the machine records. To get police records your attorney is going to need to get Judicial Subpoenas (issued and approved through a Judge). With a lot of work often the ugly truth comes out, and the breath test's validity becomes an issue of doubt.

In recent cases, I found that the State Police had written in the wrong chemical expiration date. The chemicals were expired days before my client's breath test. After I filed my motions the Judge was compelled to throw out the test, and the prosecution's case along with it. In another case the machine had frequent break downs, and parts replaced concerning the same issue, the machine would not accept a breath sample. My client was charged with a refusal because the police said she wasn't trying (blowing) hard enough. That case was also thrown out after I subpoenaed all the machine records, and brought to light the machine's problems.

Nothing of any value is easy, cheap, or speedy. That first case went to multiple hearings and motions. My client was relieved when the nightmare was over but during the process had many uneasy days and nights. To me the DWI is a two headed monster with one head uglier than the other.

Defeating A DWI

I love to surf, the internet that is. Just yesterday I punched in the above terms "defeating a dwi" and what pops up number one but an article by me. At first I was excited, a google number one, then my expression changed as I saw that my name was left off, and admin was put on as the author.

This was a website for a chemical that eliminates odor from your breath. It was being marketed to drinkers who wish to avoid detection as in if you are ever stopped for a traffic infraction just a quick spray and the cops will go away. As I delved further I found more articles sans name. My anger at this internet piracy grew. The articles mentioned the death of my father the day after my 17th birthday, the name of one of my friends, and other personal information. Everything was there except credit to moi! I'm just a little Upstate New York DWI defense lawyer but I do have feelings. Ithaca inspires me to write and share so it is with joy that I create but give a guy credit.

Their site and my articles sans my name and info.

www.sobriety-checkpoint.net

http://www.sobriety-checkpoint.net/category/dwi-sobriety-checkpoints/

http://www.sobriety-checkpoint.net/tag/case/

My original articles:

http://www.articlesbase.com/criminal-articles/defeating-the-new-york-dwi-refusal-case-1330173.html

http://www.articlesbase.com/criminal-articles/the-power-of-words-in-dwi-case-1335602.html

http://www.articlesbase.com/criminal-articles/what-do-sex-and-intoxication-have-in-common-1330200.html

http://www.articlesbase.com/criminal-articles/defeating-a-new-york-dwi-by-beginning-with-the-end-in-mind-1335399.html

So on that note I wish to highlight the power of "honesty" in defeating a DWI. Some may think me mad in advocating for truthfulness and openness with a criminal case but I have found that not trying to cover up your fears is a better philosophy and strategy for long term success.

Jurors are not stupid. They have the same doubts and concerns as the lawyer looking at the case. If you do not allay their questions openly they will most assuredly be discussing them back in the Jury room.

We as DWI defense lawyers can not look to sweep dirt under rugs and pray that it is never discovered. Everything can be seen from different perspectives. The key with good advocacy is to put yourself in everyone's shoes. Put yourself in the shoes of the juror, put yourself in the shoes of the cop, put yourself in the shoes of the prosecutor, and put your self in the shoes of the judge. Now the case can be seen as a total whole and not a bunch of random pieces or events.

The facts of any DWI case are nothing without context. Someone has to have a viewpoint of that fact.

This is from an actual case. Fact, a driver was pulled over for having headlights that were too bright. The officer in his report made no mention of investigating or asking about the headlights. The motorist only traffic violation was the headlights but no detail or documentation of this fact, just a single ticket plus of course the DWI investigation and subsequent criminal charges.

I demanded a suppression hearing on the stop (was there reasonable suspicion), and the arrest (was there probable cause). My plan of attack was a whole line of questioning, first on the importance of the report and it's detail, then on the fact that my client showed him the dashboard, demonstrated the lights on and lights off controls. The "stop officer" had one goal for this stop (investigate the bright lights) and this sole purpose was never addressed by his investigation/inquiry.

All the DWI criminal charges were dropped. This was with a .15BAC. The outcome was a DWAI (traffic violation) pre-trial. My thoughts for this case were always that jurors would want to know, the judge would want to know THE BIG WHY? If you say the stop was for x why are you not checking x, asking about x, and investigating x?

I was able to listen to my client and get "the story" of this DWI case. His story included the lights where the officer's did not.

btw that Company in California that "borrowed" my content without giving me credit:

Pure One International

3400 West Warner Ave., Unit A

Santa Ana, CA 92704

714-641-1430

fax 714-641-1432

Bytes for All (Website creation/hosting) from someplace overseas.

I really do believe what comes around goes around so God bless them and may they reap the fruits of the seeds they sow.

Lawrence Newman, Esquire

607-229-5184

Ithaca, NY

Don't Worry Bout It!

Oh the problem of these four little words. When I hear them I cringe. I have heard these words all too often in Court. They are usually spoken by some lawyer to their client. As in, "don't worry about ... your legal status (non-citizen), your out of state license privileges, your future ability to find employment, your ability to get a professional license, your ability to travel to Canada, etc. etc.

You have to anticipate Collateral Consequences of anything. Everything (every decision) has far reaching and typically long lasting affects. Much like the game of dominoes, once we set a course of events into action, many fall one against the other, and often we cannot even predict when this chain of action will end.

So that said,

1. You have to talk to more than one lawyer about your problem. Get some different perspectives.

2. It is best to talk to a lawyer who specializes in the specific type of problem you are facing.

3. Just because someone has 20, 30, or 40 years of experience does not make him better.

4. Lawyers that use the phrase, "Don't Worry Bout It" should be avoided like the plague.

5. A DWI conviction can affect multiple life areas including your out of state driver's license, your professional licensure, your employability, your permanent record, your ability to travel freely, and your insurance rates and insurability.

As an example of this, I recently had a college student come to me with a first time DWI charge. He held a driver's license from another state. He was attending college in New York State. Since he was planning on staying here for a number of years (establishing residency) for college he should have switched over his license to New York State.

Now he faced a crossroads. Should he switch his license before his initial appearance? Should he get a New York State license? Some lawyers told him, "Don't worry bout it," I told him if I represented him I would investigate the potential DWI conviction ramifications back in his home state. I am a member of the National College of DUI Defense, and have DWI defense friends (on my list serve) as an invaluable resource of information.

The range of consequences in these situations is immense. From fines of $3,000 (ie. New Jersey) to license revocations of 210 days (ie. New Jersey) without conditional (any) driving privileges. So these decisions (much like choosing a lawyer) should not be made or taken lightly. What happens in Colorado, Mass., PA, and the other 43 states varies. But making educated and informed decisions by knowing what happens and saying "don't worry bout it" are two totally different things.

Defense is an Offensive Game

January in Ithaca, NY can be brutally cold. This season though has been mild so far. It is funny to think that 30s and low 40s can feel downright warm but compared to sub zero days... it is!

A few weeks ago I was waiting for my wife's car to be serviced at a Syracuse dealership. In the reception area I struck up a conversation about Ithaca with another customer, and that lead to the "so what do you do?" question. When I said, "I am a DWI defense lawyer" eyes were raised from magazines, and off the TV set directly to me. One woman then proceeded to tell me about her brain damaged son and the drunk driver that hurt him. I thought, oh boy! here it comes. She asked me how I lived with myself? My practicing criminal defense and especially DWI defense OFFENDED her. She said, "Those" people don't deserve to be defended. She asked me why didn't I practice public interest law? Was I only interested in making money? She then launched into a personal attack without even knowing me. I did not sit complacent, I explained my role, my passion for justice, my belief in the Constitution, and my respect for the process. I did not apologize for what I do. I am proud to defend the accused. I told her I did condone reckless or irresponsible behavior ie. I am not "for" driving drunk. That would be ridiculous.

Often in the world of law, and attorneys it is best to conduct oneself civilly. I think there is a DWI defense exemption to this general rule. I believe that is why it takes a certain personality to do this type of work well. I am at core a street lawyer. I was born and raised in the gutters of Brooklyn, so to speak. There is nothing Ivy league about me. I am not very cultured. My wife is still teaching me proper etiquette. I am a little rough. Her lifetime project is to civilize me. Yet when it comes time for confrontation guess who she calls? I am her knight. I have no issues with

going face to face or head to head over things I believe in. I am small of stature but my passion for fair, and my heart for justice are large. I hate bullies. At times I think life requires confrontation, and although the large majority of the population does not like controversy, it is necessary. Nothing of value is ever won without a fight. That is so important I want to state it again, Nothing of value is ever won without a fight! The sweetness of victory is directly proportional to the price paid to earn it.

SO some lawyers should not be defense lawyers ... If they want to be liked, if they want to be accepted, if they want to be noble, then they should be another type of lawyer. Defense to most people does not usually imply attacking an opponent but evidence must be attacked. It must be questioned! It must be challenged!

Attack an invalid stop!

Attack an invalid arrest!

Attack the police investigation!

Attack the police observations of driving!

Attack the police observations from personal contact!

Attack the field sobriety tests!

Attack breath testing instruments and their results!

Attack the administration of the tests!

Attack the officer's finding of impairment and/or intoxication!

Yes, that is why I believe that DWI defense is an offensive game.