Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
I get phone calls, emails, and texts daily asking the same question over and over, what if I didn't know that was the law? In my state it's ok to. I didn't know that in New York State:
1. It's illegal to use my portable GPS, iPod, etc. while driving, I thought it was just phone calls?
2. It's illegal to not change lanes when I saw an emergency vehicle or police car pulled to the right?
3. It's illegal to use my medical marijuana (for which I have a card in NJ/CA) in New York State?
Upon the entry points to many states there are signs posted concerning their move over laws and their phone/electronic device law, but are they always apparent and easy to see?
Ignorance of the Law is Not an Excuse or a Valid Legal Defense
We are held to all the rules and laws of whatever jurisdiction (state/country/province) we find ourselves in or visiting. Here's another recent example:
One of my neighbors placed a package by the building mail boxes:
Does he have to be told by the Postal Service You can't do this!
The US postal rule as posted on a local mailbox, does his box weigh over 13 ounces, you betcha!
Rules and Laws of Wherever You Are are Important to KNOW
My neighbor won't be arrested for this but his package ain't going to move very far. Does he have to learn the postal rules and laws? How many of our rules are common sense and how many are open for interpretation?
In GA and Ohio you can't ride a bicycle high or impaired or intoxicated? You can in NYS. In PA you can't ride a horse or horse drawn carriage high or impaired or intoxicated? You can in NYS.
Who knows any of this stuff? In Colorado many now know that marijuana is legal both recreationally and medically. But although smoking and possession are legal you Can NOT legally smoke in public areas.
Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
This is a common story. Car gets pulled over for speeding or erratic driving. Sometimes the car is stopped for a too long a time at a stop sign AND as the joke goes, waiting for it to turn green. Anyway, the police stop the car, window comes down and whew, the odor, the smell of weed permeates the air. Or the driver says, "I'm high as f...k."
I don't need to make shit up anymore. So many crazy stories of drugs, cars, parties, people, and events too vague or hazy to fully remember. The criminal charge of DWAI drugs NYS VTL 1192 (4) in this and many cases due to marijuana, the drug THC.
THC is Active as Delta-9
Tetrahydrocannibinol begins as Delta- 9 THC as the active substance in the blood. The blood stream after smoking and/or ingesting rises to it's peak of 100 to 200 or more nanograms. In Colorado only 5 nano grams in the blood is "per se" impairment. It falls from the hundreds to single digits after 3 or so hours.
THC Breaks Down Into Metabolites
THC first breaks down into hydroxy THC. This still has effects upon the body and the mind for many hours after the initial active substance has dissipated. In the ensuing hours, days, weeks we then have carboxy THC.
THE Bottom Line On Blood Tests for DWAI Drugs (THC)
If the DA's blood results do not show ACTIVE DELTA 9 THC then they have a weak case of DWAI drugs UNLESS they have found drugs on your person, or have performed a DRE (drug recognition evaluation).
Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
I had a roommate like this but with my cookies from classicruby.com
New York Police use different enforcement techniques or methods depending upon the situation. When out patrolling the roads and by ways their eyes are on alert status for the abnormal or the out of place/position car. It helps if it is in between the hours of 10pm and 4am, because at that time of night many cars out and about at that hour have drivers and/or passengers under the influence of something. As an aside, I know from my clients food inclinations at that hour that the Ithaca Taco Bell on Route 13 closes at 2am.
First Questions: Narrowing the Field to "Impaired" Driving
Law enforcement must first discern if the negligent driving or bad driving or distracted driving is really "impaired" driving. That is, is this person under the influence of drugs or drugs and alcohol or just alcohol AND who is also unfortunately driving poorly because of that condition.
Tired, Lost, and Sick Can MIMIC
Tired driving or medically sick driving or I'm lost in Ithaca driving can also mimic impaired driving so the first question is always what do we really have?
If police smell alcohol, they assume you have been drinking.
The first line of questions: Have you been drinking? Have you had anything to drink tonight? What have you been drinking?
The second line of questions: Where have you been? Where are you coming from? Where are you going to?
THE LAW ENFORCEMENT DWI INVESTIGATION
If ALCOHOL has been consumed and verified by the questions then they move to a DWI (intoxication) investigation. Remember in New York State an "Intoxication" crime like common law DWI is a purely ALCOHOL offense.
Police testing for alcohol as the cause of impaired driving will follow a specific protocol. This will first involve the SFSTS (standardized field sobriety tests). There are three main tests: HGN (horizontal gaze nystagmus) eye test, walk and turn test, and one leg stand test.
TIME: If instructed, directed, and scored properly these take around 10 to 15 minutes. Sometimes officers do them in less than 5 minutes.
PLACE: They are done at roadside. Outside and subject to conditions (road and weather).
WHEN GIVEN: They are done/given (performed) pre-arrest.
WHO: They are usually given by one officer.
WHEN SCORED/NOTATED: They are usually scored, recorded, and written about by the officer post- test and of course post-arrest.
ALCOHOL TESTS: These tests were primarily designed and created for alcohol testing. Scoring is based upon a 0.10 BAC (blood alcohol concentration).
THE LAW ENFORCEMENT DWAI DRUGS INVESTIGATION
If the police believe you have taken DRUGS then the investigation will change to a DWAI (impaired by drugs) investigation. Did you admit to drugs? Did you make any drug based statements? Did they find drugs on you and/or in the car? Did you submit to a blood, or urine test?
THE "WHAT IF" GAME
WHAT If they have NO statements, WHAT if they have (found) NO drugs, and WHAT if they have NO tests then
HOW CAN THE POLICE STILL PROVE YOU ARE DWAI DRUGS? By using a DRE. NOTE: New York State Courts allow the police to prove drugs by using a DRE (Drug Recognition Evaluation). A DRE is an examination and testing by a certified DRE(Drug Recognition Evaluator).
Police testing for DRUGS as the cause of impaired driving will follow a specific protocol. This will first involve twelve steps or stages. In dramatic contrast to the SFSTS, the DRE is very different.
TIME: If instructed, directed, and scored properly these take around 60 minutes.
PLACE: They are done back at the station in a controlled environment.
WHEN GIVEN: They are done/given (performed) post-arrest.
WHO: They are usually given by more than one officer. One will be the scribe and take notes.
WHEN SCORED/NOTATED: They are usually scored, recorded, and written about by the scribe contemporaneously, at the exact time of the exam.
TESTS: These tests were primarily designed and created for drug category testing. Scoring is based upon a seven categories of drugs.
Sometimes the police will find both alcohol and drugs. It is in their ultimate discretion whether they pursue both alcohol and drug charges. Sometimes a blood test will be requested and ordered.
New York State Police Lab protocol only checks for drugs if they rule out alcohol as the source of your impairment. In other words, they will stop looking for anything besides a BAC (blood alcohol concentration) if they have over the legal limit.
BUT some District Attorneys will send the blood back and demand a search for drugs in the blood. Again this is in the DA's discretion. Some offices like to charge as many crimes as possible. With drugs and alcohol over .08 BAC, YOU can be charged with at least FOUR DWs:
DWI common law VTL 1192 (3): the opinion of the police
DWI per se VTL 1192 (2) .08 or more: the opinion of the breath test for alcohol
DWAI drugs VTL 1192 (4): commonly a marijuana DWAI
DWAI combo (drugs plus alcohol) VTL 1192 (4) (a): alcohol plus THC or other drugs
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.
Handling DWI cases in Yates, Steuben, and Seneca Counties brings me to many small town Courts. The first thing I notice is little to no civilization, then no gas stations, then no cell service, then my car navigation just gives up. I sometimes imagine a cold and dark winter night when I am stuck in the middle of icy ditch, cast out in the middle of nowhere (is there a middle if you are nowhere?) and cursing my grand idea to live and to practice where there are more green pastures, cows, and trees than people.
A cautionary word to the wise don't ass-u-me anything (cause if you do you make an ass of u and me), 1. Never assume that a Town Court is in that Town.
I had a case in the Town of Jerusalem (no not the Town of Jesus birth) but a town in Yates County, NY. Jerusalem is in Branchport. My GPS had me going in round and round in circles.
The Town Court of Torrey is in Dresden, NY. Barrington Town Court is in Penn Yan, NY.
I think you get my point! Check the town's true location on google. Get an real address. I'm going back to paper maps because sometimes the online directions take me through dirt (unpaved) roads in many of these areas. It's not much of a short cut if you have to wait for the sheep or cows to cross the road or have gravel pummeling your car paint.
2. Don't assume first come first served.
Small Town Courts have their own rhythm. The judges may or may not take the attorneys first. They may or may not have all the necessary paperwork. Have patience and courtesy in these places. The pace is definitely slower and more methodical. If you are in a rush you should have thought about that long before you passed through. I love practicing DWI defense in these small towns. It is challenging and rewarding.
Relish the views, the hometown hospitality, and the fresh air but never assume anything, especially around here.
Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
Beer Law #1 Beer before liquor...get drunk quicker.
Beer Law #2 Beauty is in the eye of the beer holder.
Beer Law #3 One beer, two beer, three beer, four
five beer, six beer, seven beer ... floor.
I have read many police reports, and often people stopped for a DWI are asked, "How many drinks have you had tonight?" Usually the answer is two. For some strange reason it is seen as an appropriate amount of consumption, as in, I only had two, or two is less than three but a little more than one. Two just makes sense.
"Drunk Words are Sober Thoughts"
So it would appear that two drinks would be a reasonable amount of alcohol most people would have with dinner or chatting with friends over a two to three hour time period. The problem lies in that after a stop and arrest for a DWI, and an eventual taking of the breath test, accurately called the chemical test, the breathalyzer, the Datamaster DMT in Ithaca, NY, the machine may read (display) a much higher number. They may have a BAC (blood alcohol concentration) of .12, .15, or even as high as .18, which by the way is an Aggravated DWI. Without more information about the night, their eating, their unique body mass, their weight, their alcohol consumption, as well as other factors I can not tell if the machine is accurate, there was operator error, or there was machine error.
Are all these people lying when they say they only had two drinks or are other factors at work?
Former President Bill Clinton most famously captured the essence of properly answering a hard question. When asked under oath whether he had sex with Monica Lewinsky he replied, "I did not have sex with that woman." He then went on to explain that his definition of sex, and the rest of the world's might be at odds.
Any question must not be answered until we define the words or the terms used in that question. Getting back to our drink question, first we must define what is a "Standard Drink."
So what makes a standard drink?
I recently went out with friends and they each ordered martinis. Their huge martini glasses must have had four to five shots (pours) of gin each. Each of their Appletinis had the equivalent alcohol of 4-5 standard drinks. In essence, the two cocktails they drank, was as if they each had consumed 8 -10 beers or 8-10 glasses of wine in a two hour time period. Combined with the fact we only had appetizers, they were each easily in the .08 to .10 BAC range.
So when I look at a client's drink consumption to determine accuracy of the BAC in a DWI case I need to also look at type of drinks, size of drinks, ethanol concentrations of those drinks, and of course the individual's familiarity (yes generally people who are used to drinking process ethanol more efficiently) with alcohol consumption.
Regular drinkers develop more of a hormone called ADH (alcohol dehydrogenases) which breaks down ethanol into acetic acid (vinegar) which is why you literally get pickled with too much alcohol consumption. That is also why some ethic groups genetically (produce less ADH) and therefore do not have the ability to process ethanol as efficiently, and then get drunk more quickly. There are a host of other factors too numerous to go into in this short blog but in some DWI cases I use an special Excel program to compute an individual BAC at time of arrest.
The following are some standard ethanol concentrations:
Beer can range from 3-6% ethanol
Wine can range from 10-14% ethanol
Sherry can range from 18-20% ethanol
Whiskey can range from 40% ethanol
I need to discover or as I say uncover the "real" world consumption patterns. Real world patterns yield far more accurate and actual BAC determinations.
So the truth may be that my client only had TWO, but two what?
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.
