Judge Suppresses Evidence of New York DWI Refusal

Refusals Can Be Actions and Not Words

The Judge Suppressed the Defendant’s DWI Refusal 

to take a chemical Intoxilyzer Breath Test Based on Improper/Incomplete Refusal Warnings. 

Why? 

What Can We Learn from this New York DWI Refusal case?

Saliva Testing for Marijuana: New York Police and the Drager Drug Test 5000

The Draeger Drug Test 5000 Screening Device

Many states are now recognizing the benefits of legalized weed both recreationally and medically throughout the United States. Canada just went legal in October of 2018. The backlash against all this legalization is beefing up by the police of DWAI marijuana arrests. In the fight against DUI cannabis the police are now using the Drager Drug Test 5000.

Can this device screen drivers suspected of being impaired by drugs?
How accurate is this new saliva tester for drugs?
Is the Drager Drug Test admissible in a New York court of law?

Police Radar Not Calibrated DWI Dismissed!

This is a New York DWI case (People v. Clayton) where the driver got pulled over for speeding. The cop testified that he only used radar and that he had not calibrated the unit for six months! Speeding charge dismissed and DWI Dismissed!!

What is RADAR? = A Radio Transmitter and Receiver

Sends out a signal and receives back a signal. RADAR has limitations, and there are two sources of potential problems or error:

1. The Unit itself (was it working/functioning properly)
2. The Operator (any machine is only as good as it's user)


Remember as in all Police Testing if we can't trust the process we can't trust the result!

This video highlights on big problem area: Calibration of the Unit.

There are a great many other areas of shall we say "Inquiry."

1. Vehicle Interference Error

Did they target and focus only on your car, and no other car or moving object? Was there "traffic" on the road besides your car?

2. RFI (Radio Frequency Interference) Error

Car fan blades and moving car parts (heater or air conditioning unit), also known as mechanical interference error.

Radio signals from police radio, CB, walkie talkie, cell phones, radio, and/or any other electronic device.

Poor connections with any electronics in the car or the unit can cause electrical bleeps and shorts.

Lights in or out of the car can bring on a false reading as well.

3. Calibration by Tuning Fork

The RADAR unit should be calibrated (checked for accuracy) both before and after a speeding ticket is issued. Many law enforcement officers only check the unit at the start of their shift and at the end of their shift. This does not ensure that the unit was properly working at the time of a specific ticket (driving infraction).

If the tuning forks are too hot or too cold they will not accurately calibrate the RADAR unit either.

There are a great many areas to challenge with any ticket but in particular with a speed related infractions. In New York State the standard is for the police to prove that you were speeding beyond a reasonable doubt.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

607-229-5184

http://www.ithacadwi.com

Can Early Treatment Help Reduce My New York DWI Sentence?

Sometimes a carefully planned and executed treatment program for drugs and/or alcohol can sway the judge, probation, and the prosecutor to leniency. Knowing where, when, and how to do this is a matter of evaluating the court, the District Attorney's office, and the judge.

Rip-Roaring Drunk Pilot Says He Never Operated Plane with .34 BAC

Pilots like bus drivers, ship captains, and train operators are professional operators with a lower BAC of .04 for DWI. 
This pilot had a .34 at 7am! He argued he never operated the plane and didn't even start the engines.

DWI Misconception: I Think I passed (did well) on the Police Field Sobriety Tests

The walk and turn has over a hundred little steps, so even a 97% correct is a big fail. Police criteria on whether you pass or fail field sobriety is extremely subjective. What exactly is involved in the walk and turn test?
Can we defend this test just based on common sense? Read on to see how we attack the fundamentals of this rather easy test.

Dangers of 25 Year Old DUI Charges: New York DMV Driver Disclosure MV-47

This video is the second about the dangers of old DUI/DWI/OUI from any state with a New York DWI or DWAI charge. New York DMV will have a 25 year look back period from the date of the most recent offense. You will likely have to fill out (honestly) the NYS DMV form MV-47, called the Driver Disclosure. Otherwise you can be facing a misdemeanor or felony just by failing to reveal old DUI/OUI/DWI/DWAI.

When Do You Require New York DMV MV-47 Driver Disclosure Form?

Usually the NYS DMV will require your driver history from other states you have lived and/or held a driver license prior to giving you any RESTRICTED or CONDITIONAL driving privileges in New York.

They are looking to see if you have a HISTORY of ABUSE. Any two DUI/OUI/DWI/DWAI within 25 years equals a history of abuse.

Paragraph (3) of subdivision (b) of section 136.1 is amended to read as follows: 

(3) History of abuse of alcohol or drugs. A history of abuse of alcohol or drugs shall consist of
a record of two or more incidents, within a [10] 25 year period, of operating a motor vehicle
while under the influence of alcoholic beverages and/or drugs or of refusing to submit to a
chemical test not arising out of the same incident, whether such incident was committed within
or outside of this state. 

You Can Be Denied a New York Conditional or Restricted License

(b)(1) An [applicant] application for a driver's license [shall] may be denied if a review of
the entire driving history provides evidence that the applicant constitutes a problem driver, as
defined in section 136.1(b)(1) of this Part. If an application is denied pursuant to this paragraph,
no application shall be considered for a minimum of one year from the date of denial. In lieu of
such denial, the applicant may be issued a license or permit with a problem driver restriction, as
set forth in section 3.2(c)(4) of this Chapter and paragraph (2) of this subdivision. 

You May Have a License with a A-2 Restriction (Ignition Interlock Mandatory License)

(2) Upon the approval of an application for relicensing of a person who is deemed
a problem driver under this subdivision, the Commissioner may impose a problem driver
restriction on such person’s license or permit, as set forth in section 3.2(c)(4) of this Title. As a
component of this restriction, the Commissioner may require such person to install an ignition
interlock device in any motor vehicle owned or operated by such person. The ignition interlock
requirement will be noted on the attachment to the driver license or permit held by such person.
Such attachment must be carried at all times with the driver license or permit. 

The Look Back Period is 25 Years for All DUI/DWI/DWAI/OUI

(3) “25 year look back period” means the period commencing upon the date that
is 25 years before the date of the revocable offense and ending on and including the date of the
revocable offense. 

New York DWI and DWAI drugs criminal charges can affect people in many areas of their life. Bringing some certainty to some of these areas can often lessen the fear and the concerns.

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

Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

http://www.ithacadwi.com

larry@ithacadwi.com
607-229-5184

NY DWI Dismissed: Unlawful Police STOP for Failure to Signal Violation o...

Brandt was stopped for violating V.T.L. § 1163(b), which he argues only applies to a moving vehicle that must signal a turn one hundred (100) feet prior to turning. Where the defendant's vehicle was stationary at a red light and he signaled his intention to turn while stopped, the one hundred (100) feet does not apply. The court agreed with this and his DWI charges were dismissed.

Are You Being Labeled as a Problem? New York's Driver History Disclosure...

Any two DWI or DUI or OUI or DWAI in any state and within 25 years means New York will now label you a problem driver.

This will affect your license privileges in any state you drive. 

Dangers of New York DWI Drug Alcohol Evaluations

Knowing what to say in answer to an evaluator's questions is so important to your DWI case outcome.

Do not think that these conversations about your drug or alcohol use are friendly because they are NOT.

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?

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? 

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.

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?

How Does My New York Conditional Discharge End?

A Conditional Discharge is the most common sentence by New York judges, so how do they end?

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? 

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.

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.

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.

The Most Common New York DWI Conditional Discharge Violation

If you got sentenced to a DWI with a Conditional Discharge in New York State this is the most common violation you need to be aware of.



Forewarned is forearmed.