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.

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.

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.

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?

How to Violate a New York Conditional Discharge

The conditional discharge is the most common sentencing option in New York but if you violate you are then re-senteced. The judge can re-sentence to jail, probation, or a combination. This video highlights the various ways to violate a NY CD.

This ways you can violate a CD include many extras with a drug or alcohol based offense. In many DWI and DWAI drugs case the CD is a great end result because you self monitor and self supervise your obligations to the court.

New York State Probation on a misdemeanor DWI can be hell on Earth because you are regularly tested for alcohol and/or drugs. 

For the average adult person to be so restricted is difficult to impossible. You give up many of your constitutional rights to privacy and person. You will be subject to many unreasonable rules. 

I consider New York probation as having a parent with power over you. Generally parents lose control over you after you turn 18. They may influence you but have NO true power. Probation departments through out New York state run the gamut from easy to extremely hard on their probationers.

Refused a Breath Test: How to Get Your License Back?

Lots of calls about how to get a license after a DWI refusal

I have spent way too many hours going over and over the same things with DWI refusal callers. I make these videos to bring some clarity to how the DWI refusal in criminal court is separate but yet so important to the licensure.

New York Refusals are not illegal but they do have consequences.


The New York DWI refusal is unlike any other state. In some states the refusal itself is a crime with separate penalties. Written into the New York legal statute is a very important piece of information. Two penalties with the breath test refusal: one year license revocation (New York) and consciousness of guilt instruction from judge to the jury. That is the reason for your refusal (they can infer) is you were conscious of your own guilt. And one other provision that many people know nothing about.

The New York DMV allows NO license UNTIL a plea to a VTL 1192 Offense

You will not get your license or license privileges back UNTIL your criminal case is completed, and has a plea to a VTL 1192 offense. The 1192 offenses are either:


DWAI alcohol VTL 1192 (1) Driving while impaired by alcohol

or

DWI alcohol (common law) VTL 1192 (3) Driving while intoxicated


This plea of guilty to one of these can be by three means:


1. bench trial with the judge (non-jury trial)

2. plea bargain with the prosecutor (either the DWAI or DWI)

3. jury trial

Trials with DWI refusal cases are generally better to defend because there is NO BAC number. 

The prosecution has NO blood or breath blood alcohol concentration to hang their case upon. So the whole case hinges on the police testimony (opinion) of law enforcement. In some cases with witnesses they can testify as well either to your sobriety or intoxication.

All DWI common law (opinion) cases are a matter of degree.

In other words what was the degree of your impairment by alcohol? Were you merely impaired or truly intoxicated by alcohol. That is the million dollar question.

Can the Prosecutor Challenge Your Getting a Hardship License After a DWI?

Prosecutors (district attorneys) can definitely make life harder. This is true across the spectrum of criminal defense but especially with DWI cases. Some have a self righteous stance on drunk driving. You would think after all the years they wouldn't, and even though I have represented quite a few attorneys some still like to beat the holier than ... drum.

So even after what you would think would be a given, a special hardship license that doesn't even concern them, here I am once again defending my client's rights to one. Remember that nothing is guaranteed, except death and taxes.

Can a prosecutor challenge your getting a hardship license?

NO DWI With a Keyless Remote

Key Fobs and New York DWI Don't Mix

Things are most definitely changing. Is New York DWI law keeping up? It's 2018 and most cars are no longer analog they are digital. What this means is that there are more computers and electronics in them than ever before. So many new cars no longer even use a key. Keyless entry, operation, and function are now more the norm. I even have car with a permanent key (can't be removed) but you still need a key in your pocket to operate it.



Does having more bells and whistles change the nature of the crime of DWI?

Does having keyless entry change DWI while in a parked car?

How to Persuade A Judge to Leniency: Reasons Create Reasonableness

Help Them See the Truth By Proving Your Rehabilitation  

Judges, prosecutors, and even probation officers want reasons to help you. If you show you don't care and aren't trying to address your underlying problems then they will follow suit. BUT if you show and prove you are proactive post arrest, then they will support those efforts. Showing them progress towards sobriety always begins with an assessment / drug and alcohol evaluation. It continues with follow through: AA/NA meetings, classes, and checking in regularly for screenings.

Persuasion is Always About Supporting a Person's Values

Judges and prosecutors take an oath. That oath states that they are to safeguard and protect the public. If the proposals and steps that your attorney is having you take support that value then the court and DA will align with you. They will support your time and energy spent in treatment and rehabilitation.

Your sobriety is never just for you.

Your lack of wellness, your instability, and your ill health affects everyone around you. Your family, your friends, and the community are all potentially impacted by all your actions. Having an IID (ignition interlock device) on your car is a community safeguard because the public is always the named victim of a DWI with or without an accident.  

New York Criminal Defense Begins with Facts Versus Opinions

Facts are NOT Opinions
from Goodwin.net

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?

Understanding New York Judges and Plea Bargains

Judges At the Apex of the Legal Triangle
Judge-Defense-Prosecution

After a few decades of practicing law you start to get a better overview of not only the legal process but the dynamics of how judges think about cases. It is not always the same way because not all judges act, think, or feel the same way about every single case.

That said, there are specific types of judges. I'm not talking about criminal versus civil versus family versus federal versus bankruptcy versus administrative judges. What I am talking about is the overall way that a criminal judge handles the prosecutor/criminal defense lawyer relationship.


What types of New York State criminal judges are there?

How do these judges sort their cases?

How do these judges make final decisions on sentencing?

Ithaca DWI Lawyer: College Stickers on Your Car May Give Police Reason to Stop You

Most Cornell University and Ithaca College students are proud of their schools. They like so many these days display their school pride on shirts, hats, and even their cars. I have a license frame for    my daughter's school on my car.

So is having a rear window college decal on your car against the law? 

Can the police legally stop your vehicle for having a sticker on your rear window? 

Ithaca DWI Lawyer: The Power of Circumstantial Evidence

Often there is NO direct evidence of guilt

The jury acquittal in a recent murder trial out of California (People v. Jose Garcia Zarate) shocked the nation. But delving into the facts of the case and what the defense was within the evidence revealed a bigger truth. When a prosecutor uses circumstantial evidence to prove guilt any and all reasonable explanations of innocence weigh in favor of the accused.


California's circumstantial evidence law favors the innocent, does New York law follow?

Does New York circumstantial evidence law clearly help those on trial? 

Ithaca DWI Lawyer: Help Me Help You

Hollywood Reporter, Jerry McGuire, Sports Agent

You know I love the movie Jerry McGuire. Jerry (Tom Cruise) is a sport agent representing players. This movie speaks to me as a person trying to help people with their legal problems. Often I feel communication is the key to a great relationship.

So why is it so hard at times to guide people into setting up the best outcome for their case?

Why do clients have as much frustration with their attorneys as attorneys do with their clients?

Ithaca DWI Lawyer: How Do Judges Instruct Juries on DW Intoxication

Proving whether or NOT you were
Hammered is Really the Question? 

This is the last of four posts in a multi-blog series on New York Jury Instructions on DWI. The importance of what the jury instructions mean to any case can never be underestimated. Any case moving to trial (and we must assume that to be successful) MUST begin with the end in mind.

In a civil personal injury case we must prove liability and damages. In a DWI case we must defend against the charge and the sub-parts to each element of the offense.



In a DWI or DWAI drugs case this means:

1. The driving (operation)
2. The testing (breath or blood)
* Police testing can also include a DRE (drug recognition evaluation) and/or FST (field sobriety testing)
3. The legal definition of intoxication and/or impairment by alcohol and/or a drug

What is the legal definition of INTOXICATION in New York?

Can you be found legally intoxicated without a BAC test?