Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
Understand How the Judge Views Equity and Fairness
DWI Equity Defenses = Fairness in Prosecution
eq·ui·ty
ˈekwədē/
noun
1. the quality of being fair and impartial.
Many DWI cases we defend have horrible facts, terrible video, and usually involve multiple charges. In situations like these criminal defense attorneys must look beyond the facts, and beyond the law to the defense of EQUITY. Ah sweet equity, the word just rolls off your tongue, and it can be for all intents and purposes a savior of sorts.
Can we inject fairness into what some believe is an unfair DWI process?
The Ithaca City Court is evolving in a good way. Steps and procedures are being taken to ensure that sentencing of DWI cases is clear, concise, and unambiguous. In the judge's new sentencing of people charged with DWI the judge (The Honorable Scott Miller) is setting up new protocols to deal with DWI cases.
Why Here and Now?
After a DWI case returned to court due to alleged violation of their CD (conditional discharge) the thorough Judge went back through the prior recorded sentencing (everything is recorded these days) and noted that the defendant was never informed in a way that was understood by him that he MUST install an ignition interlock device on his car within 10 days OR ELSE,,, face consequences! Driving a vehicle without an installed IID, once one has been ordered by the court following a DWI sentencing is a crime (class A misdemeanor) in and of itself. In addition, it is also a violation of their CD.
Ultimately, a violator would be subject to re-sentencing to up to a year in the Tompkins county jail and/or three years of probation supervision and monitoring.
See my prior blog post to further understand what a CD really means here:
"What do New York Parole, Probation, and Conditional Discharges Have in Common?"
Consistency is the New Watch Word in New York DWI Sentencing
"Although the court system has experimented with different approaches to DWI
cases, we have never had a uniform, statewide plan. Today, I am announcing a compre-
hensive plan to address this problem." Chief Judge of New York State Jonathan Lippman
I think that this has been a long time coming, and keeping with the high court's (Judge Lippman's) recent stance on CONSISTENCY in sentencing in all DWI cases statewide. Reading through the 2014 Judiciary report the word consistency is mentioned again and again.
Our own Judge Miller reiterated the high court's goals, and his compliance with it's philosophy in two major ways: 1. The judges will ensure that all defendants
are screened (and assessed/evaluated) to identify alcohol or substance abuse dependency.
2. As experts
have recognized, a key component of achieving deterrence in DWI cases is certain, con-
sistent and coordinated sentencing. Consolidating these cases into one court part, with
a dedicated judge, will lead to consistency in sentencing. It will also enable the judge to
develop expertise in this complicated and technical area of law, as well as an under-
standing of the effectiveness of the statutory tools at his or her disposal, such as license
suspensions, alcohol monitoring systems, and ignition interlock devices. From Judge Lippman's 2014 State of Judiciary Address
The New Ithaca City Court DWI Conditional Discharge
New "Conditional Discharges" on DWI cases in Ithaca City Court will include a verbal and written warning that an ignition interlock device MUST be placed upon any vehicle that they own and/or operate within 10 days of sentencing. A violation of the terms of the DWI CD will now result in harsh consequences.
Ignorantia juris
non excusat (Ignorance of the
law is no excuse)
Leandra's Law = The mandatory IID (ignition interlock device) condition will be
acknowledged and enforced from this moment forward. Noone will be able to say (neither attorney or defendant) that they DID NOT KNOW.
Now if Judge Miller could only get the bridge fixed before next winter. Us older (read mature) folks don't like slipping and sliding on the slick Ithaca sidewalks.
The Bridge in Better Days
Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.
Splitting the baby, an unreasonable solution
from sodahead.com
In the vast majority of New York DWI cases we have at least two different misdemeanor charges:
1. DWI per se based on a BAC .08 or more
and
2. DWI common law based upon "inability to operate mentally and physically as a reasonably prudent driver."
In Kings 3:5 - 14, two women both claimed to be the mother of the same child. In actuality, one had killed her child, and then claimed the other mother's child as her own. This problem was brought before the Wise King Solomon. He said, "well then let's cut the baby in two and each can have half." The mother whose child was already dead didn't care but the "true" mother of the child stopped this ridiculous solution and was willing to give her child up, just to at least keep it alive. The wise King revealed the real mother.
Splitting the DWI Baby
The expression, "Splitting the baby" with DWI cases means that a jury can find a person guilty of one of the DWIs, and not guilty of the other DWI. In the minds of most people, and defense attorneys this is hardly a "good" solution. The person is still guilty of a criminal misdemeanor either way.
I hate when DWI juries find my client not guilty of having a BAC of higher than .08 but still find them guilty of common law DWI. It is a compromise of sorts but fair or making sense it is not. I feel it is an unreasonable solution to DWI guilt or innocence.
IMO I feel the better compromise would be to find guilt to the lesser included charge of DWAI (driving while ability impaired). This is a BAC of .06 to .07, and/or driving with any extent of impairment. Unfortunately, DWI jurors don't always see it this way!
Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.
Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.
Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
This is a PSA from the NYS DMV. I think it's a great message but it is confusing to many people. I get phone calls that ask me, "if I smoked or drugged yesterday, can I drive today?" My answer is usually don't drive if you cannot drive in a safe and responsible manner regardless of when you took something. This would be true whether you were tired, upset, or under the influence of anything that affected your ability to drive safely. Heard of "Road Rage?" People that are really angry should not be driving. That would not be safe driving either.
DRUGS can affect YOU (but ,,,, ON is NOT always Impaired)
The truth, drugs (alcohol is one of them) can influence your ability to drive. They can also influence your ability to think, walk, talk, and a million other functions. Many people are "on" drugs but the real question is always: Are they "impaired" by these drugs that they are ON?
I say this tongue in cheek because there are hundreds of drugs (prescription and OTC) that can affect you physically, emotionally, and mentally. In this country there are a great many people taking drugs and nutritional supplements daily. ON does NOT always equal Impaired.
First, what do prescription and OTC drugs really do?
Generally drugs work by speeding up or slowing down a normal natural function of an organ or organ system. The body seeks homeostasis. Hemostasis is the body's normal natural point of balance. The yin and yang of function. Up and down, at a pace. Your heart beats at a normal natural rhythm, and your body releases insulin at a normal natural rhythm until it doesn't.
Drugs assist people by either increasing or decreasing and/or enabling a natural bodily function. Those that require (and are prescribed) drugs have bodies that are not normally regulating these functions. There are drugs that increase the release of insulin, can cause our hearts to slow down, or can supply us with hormones we are no longer naturally producing.
Second, all drugs have a variety of effects.
We take them for one thing, but they will also do many other things to us. These are termed "side effects." Side effects may be considered the "bad" effects of a drug. The affects we don't want. They can be minimized but they generally can not be completely eliminated.
Third, you must take your medications based upon your doctor's direction and guidance but remember that you are ultimately responsible for their affect upon you.
As a driver you must be "fit" to drive. Driving fitness requires that you: have awareness, have the ability to multi-task (divide your mental attention), be able to focus, and to respond to changes as you perform as a driver. Driving is performance oriented.
Main Take-Away: Use of all medications must be accompanied by your understanding of their effect upon you and your ability to perform (drive).
Drug Concentrations and Half Life
All drugs have a "half life." Meaning that your body eliminates the drug from your body over a period of time. Alcohol and other drugs (and many other substances) are toxic to the body. Upon ingestion, your body will begin the process of detoxication. Detox takes time. Some drugs are at a level of half their quantity in your system over a specific period of time. Marijuana has a long half life. I guess one of the good things about alcohol is that it is eliminated by the body (detoxified) by about one drink per hour (generally).
I look to the FAA (Federal Aviation Administration) when checking recommended wait times (as to half life). You can't fly a plane unless you follow these guidelines as a pilot (and rightfully so). Is driving a car much different? We can argue this point but check this out as to pilots and sleep aids: Pharmaceutical Considerations: Because of the potential for impairment, we require a minimum wait time between the last dose of a sleep aid and performing pilot or ATCS duties. This wait time is based on the pharmacologic elimination half life of the drug (half life is the time it takes to clear half of the absorbed dose from the body). The minimum required wait time after the last dose of a sleep aid is 5-times the maximum elimination half life. The table below lists several commonly prescribed sleep aids along with the required minimum wait times for each.
Trade Name
Generic Name
Required minimum waiting time after last dose before resuming pilot or ATCS duties
Ambien
zolpidem*
24 hours
Ambien CR
zolpidem (extended release)
24 hours
Edluar
zolpidem (dissolves under the tongue)
36 hours
Intermezzo
zolpidem (for middle of the night awakening)
36 hours
Lunesta
eszopiclone
30 hours
Restoril
temazepam
72 hours
Rozerem
ramelteon
24 hours
Sonata
zaleplon
6 hours
Zolpimist
zolpidem (as oral spray)
48 hours
These guides are for sleep aids but other drugs would follow suit. 5 Times Half Life minimum to fly a plane safely. Some of these drugs require 2 or 3 days wait time before flying a plane.
Hey Snowflake, NOT Everyone is the Same
Of course, people are all different and they will also metabolize drugs differently. In fact, depending upon the given day, your body may metabolize (process) a drug faster or slower depending on a number of factors. How much sleep you had? Was it restful? What did you eat? What other drugs did you take? Your metabolism or the effect of a drug can also vary based upon your emotional state. This is even more variable if you don't know specifically what you are taking (as in elicit drugs). How much THC is in the pot you smoked? Who knows? The dangers of many illegal substances lie in their supposed "purity." Is it all this or that?
So in the end it's the Affect the drug (any drug) has upon YOU, and your ability to drive that really matters. Unfortunately, in many of the New York DW cases of DWAI drugs there is a car ACCIDENT as the main precursor to the charges. This is the ultimate in problem (dangerous) behavior.
Drugs alone or in combination can weaken your ability to perform many tasks. That is why most warning labels caution against USING HEAVY MACHINERY (i.e. a car).
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Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.
Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 470 blog posts, dozens of articles, and over 450 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.
One common question before hiring a professional is, "do I need you?"
Does anyone really need a doctor, a lawyer, or a CPA (tax professional)?
Does anyone need a plumber, electrician, contractor, or carpenter?
The D.I.Y. (Do It Yourself) Mentality
I love to go to Home Depot, and Lowes. They didn't exist years ago. The local hardware store wasn't on that level or scale. I have attempted plumbing, painting, scraping, fixing, and repairing my home. It has not always worked out as well as I would have liked or imagined. Sometimes (really often) it was messy and as my wife would say, I made it worse.
Plumbers, Electricians, and Carpenters
You can DIY (do it yourself) but should you? Is it really a smart way to go? Do you always save time and money? I tried scraping off old wall paper, I couldn't move my arm for a week.
I admit I am not handy. Hanging a picture can be challenging for me. Maybe other people are handy. Maybe they enjoy learning new things. I'm at a point in my life where I would rather support other professions, and let the professionals do their job. Besides the thought of going up a ladder, playing with electricity, or opening a pipe is scary to me.
With an Ithaca, NY home in Fall Creek that is 123 years old having professionals to do upkeep, maintenance, and repair is not an option for us, it is a necessity. I say thank G-d for these professionals, I would be cold, knee deep in crap, and in the dark without them.
OF Doctors, Lawyers, and Accountants
You can be your own doctor, lawyer, or CPA. There is no law against it. But what a professional brings to the table is their experience, their knowledge, and their assessment of your particular (unique/specific) situation.
This level of assurance or insurance that the decisions you make will be made with a full understanding. That you understand the direct and indirect consequences of any action is always of paramount importance. Fools make uniformed decisions. Especially when the government is involved you should not take these things lightly.
Professional Representation comes in different shades, colors, and sizes. Not all professional representation is the same. Doctors are not all the same. CPAs are not all the same. And lawyers are most definitely not all the same. They can do the same things (with their licenses) but they are not all equally knowledgeable, experienced, or skilled.
Some professionals are into what they do, they are passionate about their field, they are contributors, they stay involved, they remain learners, while others do the very least to remain as licensed professionals, they can't wait to retire and play golf, they hate what they do, they live for the weekend.
I guess it all comes down to this, who would you choose to represent you and your interests? I can tell you that the cheapest professionals are those barely interested in their fields. They seem bothered and annoyed.
If you see a "I'd rather be ... ing" bumper sticker on their cars you better go find another professional.
Lawrence (Larry) Newman, D.C., J.D.
Doctor or Chiropractic
Attorney and Counselor at Law
Filling out an application can be harder than it looks
us news.com and college applications
Filling out any College Applications? Have any prior New York criminal or non-climinal charges? You need to answer carefully. Especially if you have had "any" prior contact with the law.
Filling out applications can be like navigating a minefield...
