Ithaca Lawyer Don't Open Pandora's Box: The Legal and Administrative Consequences of Change

Sometimes it is best to let sleeping dogs lie 
and
well enough alone 
From http://futuredocsblog.com

I grew up in the City that doesn't sleep. I owe Brooklyn, New York a debt I can never repay. The school of my youth included the one of hard knocks, and good old P.S. 276. Yeah P.S. as in Public School number 276. Fortunately education back in the day included Greek Mythology. I never fully realized it's implications till later in life.

We All Want to Advance and Change

A recent phone consult had a man who was planning to get a professional license. After all, who wants to wake up day after day with the same thing. He wanted to advance himself. Like the Army slogan, he wanted to be more, do more, and have more.

Getting any professional license, certification, permit, or anything which requires volumes of paper can be tricky at best but dangerous at worst. Not to scare you but the amount of investigation and inquiry these days before the issuing of anything to anyone is staggering. In the wake of 911 we have a bureaucratic mess. From a massage license to a nursing license to a gun permit, you can go round and round. As someone licensed in multiple areas in four states I can attest to being literally put through the ringer.

The problem in my phone consult's situation was that his name was not quite right on all his prior paperwork. He went through life using a name not really his "legal" (birth) name. It started with one simple form thirty years ago, and now he is Tony Alberto on his driver's license, instead of the Anthony Albert (made up to protect the innocent) on his certificate of birth and social security card. It became so much a part of his life that he forgot about it. Your full legal name is just that important. Using different names and/or identities can get you in big trouble both legally and administratively.

Opening Pandora's Box

Everything is quiet, well and good until you make a change in your life, then watch out! Everything in Tony's life was fine UNTIL, until the day he was applying for his new professional license which required ALL the paperwork of his life to match, to align, and to be in synch. It is now 2012 and all governmental and quasi governmental agencies do not like or want you to possess multiple names or AKAs (also known as).

Years Ago it was OK (or at least not as dangerous)

Years ago I represented a guy from Philly with a DUI that had four driver's licenses, one from New Jersey, two from Pennsylvania, and one from New York. One was Anthony, Jr., one was Anthony, Sr., one was Anthony Vinny Jr. and the last was Anthony Mario. Our legal defense, he was Anthony Junior, not the Anthony senior that go the DUI, not a great defense but with a guy like this it's worth a shot. You could never get away with that these days. The DMVs even have facial recognition software to prevent this type of fraud.

The Domino Effect in Action

Back to our original story of Tony Alberto wanting his new professional license. He had to now go back to the DMV. He needed to apply for a driver's license renewal because he was changing his name to his official (legal) name. One seemingly simple process was now going to lead to a chain of event reactions.

The applying for the professional license led to the name change led to the license renewal which now takes us to the problem event, this led to filling out of the license renewal form which led to him having to reveal his recent medical problems.

Medical problems which now could impact his ability to drive a car,
Medical problems which could now jeopardize his driving privileges,
Medical problems which could then take away his freedom to move,
Medical problems which could then take away his ability to work,

You see license renewal is a triggering event. A triggering event is any that can cause a domino effect of change. As they say one thing leads to another. This is a prime example of the opening of Pandora's Box (the evils of government intrusion), and the Domino Effect (one event triggering a series).

Key Take Away: Discuss or at least think about (consider) the full ramifications of dealing with any governmental or quasi governmental agency. This is especially true if you are making application for privileges, licensure, permission, or certification of any type. Sometimes the forms can be much like a minefield. A wrong step or inappropriate response can trigger a domino of things unwelcomed and unwanted.

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Lawrence Newman
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com

Why You Can't Handle the Truth About DWI Re-Licensure

from growthnation.com
"gotta love this intensity"

I love Jack Nicholson, I love great movie dialogue, and I love big picture ideas. In the blockbuster movie, "A Few Good Men" Jack testifies and uses that iconic line, "YOU Can't Handle the Truth." Well in a great many areas of life people need things to be simplified. It happens in medicine, and it happens in law. Do you really think nerves get "pinched" come on? Yeah, doctors use easy explanations, hence terms like "side" effects, and plenty of "it just works but I can't say how."

In 2012, people are definitely more savvy, more interested, and more open to really learning what the hell is going on. The internet is an open and abundant resource of information. The problem is all this information eventually requires organization and interpretation.

An Object Lesson in Understanding Re-Licensure

Last night I got a phone call from a DWI client. His case was over, but his license or re-license nightmare was still continuing. Post-sentencing in any DWI case people have a list of things to do (called conditions). Some things just don't jibe (make sense) and people can be confused. This occurs more frequently with out-of-state license holders. Just another level of complexity to conquer. try as i might to make things easier, or work out they don't always do. As I like to quip, it's simple but not easy.

Communication Breakdown

Apparently, the communication between the Court and the New York DMV had issues (delays) and because of that his DMV license paperwork was delayed. BTW I had contacted the Court three times post sentencing to remedy this. The clerk did the right computer inputs but the DMV was dragging it's . . .  I tried to discover or uncover what was going on. The good news is that this is not a common occurrence but when it does happens it is not pleasant experience.

First Truth: 

This is one of Murphy's laws, we work and we prepare and still it doesn't all come out perfect. It was just taking more time than it "should." Normal timeline, 2 weeks from the Court to the DMV. Did I say, normal? What happens normally? I have had instances of 6 weeks to 6 months. How often do government things take more time than we want or feel they need to happen?

Was this a Big surprise? The government, the court, and the DMV was taking more time to resolve his license issue. Is anybody chasing after your tax refund? Is anybody looking after your social security check? Another fantasy to believe that this process is always fluid or fluent or quick.

Second Truth:

When it comes to Travel these days, getting Identification, Licensure of any type, anywhere, and all things certification/proof related the government wants (demands) more and more these days.  In the Post terrorist, fear laden world that we live and work in, nothing government document driven is happening fast and easy.

The DMV demanded an Out-Of-State License record (abstract) no more than 10 days old. This led to a domino effect because he was from another state. Because of the original delay by the Court and the New York DMV his abstract (driving history from earlier) was now too old to use. The DMV wanted an official "new" one.

Oh the fun of "Getting Certified Official Sealed Original Records" while living Out-Of-State

Try getting your official license record from another state quickly and easily. The special word is official (as in certified) because getting a record online may be easy but getting an original stamped sealed certified document not so much.

Third Truth:

This is the biggie, New York State Courts (Judges) DO NOT GRANT driver's licenses or privileges.

Yes, we (lawyers) tell people all the time that the Court is going to give you a hardship privilege license or grant you a full privilege back BUT Now the Truth. Courts just take less they don't give anything license/privilege related.

Taking Away Your Delicious Turkey Dinner 

I love Thanksgiving and your full unrestricted driver's license is kinda like the soup to nuts typical November Tgiving meal. All the fixings: Turkey, gravy, mashed potatoes, stuffing, yams, cranberry sauce, apple pie, etc.

In a DWI case, the hardship privilege following a Court Suspension is like taking away your Turkey dinner but leaving you some peas and potatoes. I didn't give you a "hardship" dinner, I left you with a minimum (or minimal) food to subsist. Certainly not a complete unrestricted license but the bare bones minimal (work, school, and medical care) privileges.

When a Court grants you a 20 day license at the end of your case (at sentencing) again they don't give you a license. They are merely placing a STAY (DELAY) upon the DMV mandatory suspension.
A STAY of a suspension is merely A DELAY of a suspension. Again, nothing is truly awarded, it is just not taken NOW!

Nothing is Ever Given, Awarded, or Granted

Only the DMV of any state gives a license/privilege to drive a car. Courts, Judges, and even prosecutors love to say they are giving things but in truth they are merely delaying the DMV or NOT taking everything. They even believe it so it must be the truth, right? That sounds like the government doesn't it? They "cut" government spending by spending less. Like my wife saving me so much money by getting deals at the store. But honey they were on sale so it was like getting it free?

So back to my story, My client wanted me to do something about his license. He felt as though I was a disappointment. I should have (make) the Court "grant" him another 20 day license or privilege. After all the Court and the DMV delayed (messed) up so they should accept responsibility (another fantasy) and make it right. The day I see an insurance company, government agency, or licensing authority apologize and make amends I think we all better check our temperature. It means I must be running a fever because it doesn't happen very often. A nice story but nothing more.

I Told the Truth and I was Not to Be Believed

I tried to explain the madness of his request but alas it was too late. He could not appreciate or deal with the reality of it all. I was much like Jack in that the truth was not going to be accepted or welcomed or understood at this point or perhaps any other in the future. I feel bad when my communication is broken or misunderstood by a client. But then again blogs like this one would not exist but for people who were mad at me and/or the system we all have to deal with.

TWO KEY Takeaways: 

1. When entering (embarking) on your New York State DWI case if you have an OUT-OF-STATE license be prepared to get a copy of your state's driving record (history) immediately at the onset for the Court, for the drug/alcohol evaluation, and for District Attorney negotiations

AND 

2. Be prepared to get a certified (official) copy at the end (close in time) of the matter for the New York State DMV. You will need it to get a post revocation New York conditional license.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com

Travel to Canada Opens Up with the Tourism Facilitation Action Plan for those with DWI/DUI/DWAI/OUI

Overcoming Inadmissibility to Canada with a 

New York DWI or a New York DWAI

"Well, It's About Time"

Canada is loosening up these days. It's front page news in the Buffalo newspapers because Canada realizes they need (they want/desire) our tourist dollars. The Loonie (Canadian One Dollar Coin) and the Toonie (Canadian Two Dollar Coin) just ain't cutting it. You want laws to change or red tape to be cut then show the almighty dollar.

Under the Tourism Facilitation Action Plan (the TFAP) , Americans with a single indictable (Canadian lingo) offence (NYS DWI or DWAI) in their criminal histories, for which they served less than six months in jail, are less likely to be turned back at the border. Most first time New York DWIs and DWAI do not serve any jail time. Canada considers all impaired driving to be an indictable offense in Canada. Indictable offenses are more serious crimes.

The plan will expand Visa Application Centres from 60 private sector offices to 150 globally by 2014. It will also give Canada Border Services Agency the discretion to waive fees for certain cases in issuing Temporary Resident Permits.action o

“It is a dubious and intrusive rule,” the TFAP continues. “ … the current process for those refused is overly burdensome and requires substantial supporting documents and records that are not easily available. This rule results in millions of dollars in lost revenue from would-be tourists and has a negative bilateral effect.”

Greg Rickford, a conservative party member of Canada’s parliament, representing the Kenora District of Ontario, has pushed for the one-time exemption, until a long-term solution is found.

“As of March 1, 2012 this goes into full effect,” Rickford said early last week.

Rickford said he’s “championed the cause” on behalf of the tourism industry in northwest Ontario, but the rejection of some Americans with but one offense was felt elsewhere in the country, like British Columbia and in larger cities.

Temporary Solution is Not a Visa

This is a one time exemption for tourism purposes. This is NOT a permanent solution for those that desire more (and continued) visitation to Canada.

As they say, "Just ONE Mistake (a DWI), then Your Welcome to Spend Your Money in Canada"
Those with multiple DWs are not going to qualify under the act. Those with major (Felony) crimes also need not apply under the TFAP.

KEY TAKEAWAY: Remember there are NO guarantees of entry. The customs officers have Complete Discretion to deny, or allow entry to anyone, anytime, regardless of this new policy. But those with one strike are likely to pass muster.

Dr. Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

newman.lawrence@gmail.com
607-229-5184

http://www.ithacadwi.com

Ithaca Lawyer 2012 New York DMV "Dangerous Repeat Alcohol or Drug Offenders" Rules Change

Nothing stays the same. One thing we can always count on is change. The world, the laws, the rules, and just about everything are dynamic. They (the powers that be) write new ones, repeal old ones, re-apply, deny, and re-define continually. Keeping up with the changes is one thing, understanding their effect to and upon my current clients and future clients is quite another. Remember a license is merely a Privilege it is Not a Right although in this great country (and especially the country of Upstate New York) your freedom, your independence, and your livelihood are on the line without a valid driver's license.

Which brings us to October 2012, New York State's Governor Cuomo has declared an emergency change to the current DMV regulations. This is effective as of September 25, 2012.

If you want a night time sleep remedy (New York DMV Proposed Rules):

http://www.dmv.ny.gov/proposed.htm


The Main Points (simple but Not easy to understand):

1. This is aimed at REPEAT offenders whether based upon drug and/or alcohol related DWI or DUI.
2. The look back period to impose punishment is extensive at 25 YEARS.
3. Those with 2 DWs (or similar) within 25 years will NOT get their license back early after the completion of the DDP (NYS DMV Drinking Driver Program).
3. Everyone with a DW (VTL 1192)  revocation based on impairment (includes intoxication) will get a DMV "LIFETIME look back/REVIEW" of their complete driving record (includes all states) before re-instatement of their New York State privileges.
4. For those with 5 DWs over their lifetime = DENIAL of license privileges.
5. For those with 3 DWs over their lifetime plus a serious driving offense = DENIAL of license privileges.
6. Even those Repeaters who receive any privileges (conditional ie. partial) will require a Mandatory Ignition Interlock Device for their cars for many years (5 years).

In the "Before" Time

It used to be that the DMV would grant FULL license privileges (not conditional, ie. partial) after completion of the 7 week NYS DMV DDP (drinking driver program). This was allowed for those 21 and older, without a prior DW within 5 years.

WHO Does it Truly Affect?

These new rules are Primarily Aimed at Alcoholics, those people who are drug and/or alcohol dependent. Hence the title, DANGEROUS REPEAT OFFENDERS. I think this is a good thing. I am not pro-drunk driving (those that believe defense lawyers are evil/bad ok, but crazy NO).

Sometimes a big sweep can also affect those who are NOT alcohol/drug dependent. In this case the only people who may be tossed under the proverbial bus are those with very old DW convictions that now will have longer revocations (3 months on a DWAI, 6 months for a DWI, and 12 months on an Aggravated DWI). I have long argued that if someone had an ability impaired or an intoxication conviction from twenty years ago should that be now still held against them?

The Fairness of Holding onto Old "One Time" Baggage  

Holding old "one time" baggage against people happens all the time. Now I'm talking about the isolated incident, not a five or ten year run (a run is a spell of bad judgment/behavior). Say You made "a" mistake, you are a human being, not perfect, but perfectly falable, now what? You had an affair, twenty years ago, so goodbye marriage, goodbye family? You had a conviction for theft/fraud/deceit twenty years ago, goodbye job/position/license? You cheated, you stole, you had bad judgment, are you going to be punished for these old sins forever? A great many Prosecutors, Judges, and Evaluators do this, and they honestly believe it is the best thing to do.

It's Truly Biblical: "There "But For" Grace Go I"

This is a super charged subject but as I age (mature) I try to see the middle. No harsh black/white but where within the Grey does this fall? Depending on your viewpoint this can be seen as fair or foul? Believe me my view is not very popular. It is balanced, for those with 20 year old convictions, to me, in my mind that is a "lifetime" ago. What you did at 20 years old, or 25 years old is not who you are at 45 years old or 50 years old.

"S/He who is without sin may cast the first stone?"

I started this blog with a picture of a held stone, it's poised (just about ready) to throw, , , Against Whom?

Just imagine if everyone was crucified forever for all their past one time past mistakes. I do not think that a 25 year old conviction should play against a person who has been responsible, productive, and contributing for all that time. Should a good life of raising a family, paying taxes (thank you Governor Cuomo), and working count for nothing?

My view, if they are alcoholics, drug dependent, get them help, get them off the road, and then when they have shown/proven/earned stability (responsibility) then give them back limited licenses with ignition interlock devices. That makes sense, that keeps us all safe. Yes, some people should never get a license, in fact some completely sober people (who are horrible drivers) should be re-tested? What I feel is wrong is the Lumping or categorizing of a lifetime for punishing secondary offenders.

Cookie cutter justice is not what this country is about. Individuals and their lives must be looked at in the totality before appropriate punishment is given. Without using objective (and fair) measures for making decisions this sets a dangerous precedent and moves us all in a "one size fits all" direction.

Dr. Lawrence (Larry) Newman
Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com
http://www.ithacadwi.com

Why oh WHY is the DMV Not Giving Me Back My License After My DWI?

After representing and defending hundreds of people for DWI and traffic charges over many years one thing remains the same, the Commissioner of the NYS DMV can be much like the Wizard of Oz.

Much like Dorothy , , , Sometimes they (the DMV) withhold privileges, and I am left wondering why? Is it one thing? Is it a combination of factors I fail to see or my client failed to disclose? Is it something we can remedy? What do they want? What do they now require? I can guess or I can call them up or I can send them a letter.

Should I Follow the Yellow Brick Road?

"What? I'm still revoked?

Sometimes they will tell me and sometimes they just deny without an explanation, except to say at this time we are not "extending" privileges.  So we can "apply" again in the future. After time has passed, or my client has completed a program or programs?

I have seen privileges to drive withheld "indefinitely" after DWIs, reckless driving charges, vehicular assaults, after my client was found guilty of both DWIs after a trial, and after medical suspensions. The reasons to deny a license or reinstate one are endless. Usually it is based upon a combination of factors, a set of circumstances, and/or a history.

Of the situations of indefinite periods of license revocation that occur I usually encounter one of two things: Negative Units or History of Alcohol Substance Abuse.

Note: I am not getting into the multiple DWI reason for withholding a license as that is usually a given (easily explainable, understandable, and defined in law).

What are Negative Units? 

1. The NYS DMV has a special system in place that is largely unknown by most attorneys and lay people. Under 15 NYCRR § 136.6 DWs, some traffic offenses, and accidents are not assigned the traditional "points" against your license instead they are assigned just "negative units" by the DMV.

Easy Formula: More Units = Less Safety = No License

15 NYCRR § 136.6 is a "safety factor" section of NYS law that specifically assigns "negative units" to different offenses/accidents/DWs. This is part of the record that the DMV Commissioner looks at if they are considering giving you back your license to drive. BTW things like reckless and speeding get assigned points and negative units. So a double whammy of trouble. Everything "bad" driving/behavior related can cause an uptick on your safety factors. In this instance more is not good but bad with a capital B.

The Surprise 

People are often confused after completing all the NYS programs that they are denied reinstatement of their license/privilege. It is likely that if you have too many negative units (more than 25 pursuant to Under 15 NYCRR § 136.4(a)(3).

If you are revoked for a DWI for example, maybe 2 DWs in the same event, and you have other driving offenses when the revocation period ends you apply for your license back. The DMV doesn't give you back your license because you have too many negative units. The six month or one year revocation or the ability to get it back after taking the DDP never happens.

Do You Have a Drug/Alcohol History?

2. The second major reason not to reinstate privileges is if they classify you as a person with a history of Alcohol/Substance Abuse. The NY DMV also states that any driving record (abstract) with 2 or more "alcohol" related charges (could be a DWAI or DWI) within 10 years and boom, you now have a history of alcohol abuse. This is further defined in Part 136.1 (b) (3) of the Regulation of the Commissioner of Motor Vehicles.

Getting it (Your License/Privilege) Back After Being Classified

So to get your driver's license back after having 2 incidents within this 10 year time frame you MUST fill out and file DMV form DS-449, and submit evidence of either rehab (following an OASAS eval and follow up recommendations) OR a clean bill of health (ie. after a drug / alcohol eval no further treatment is necessary. Form DS- 449 is called "Alcohol Abuse Rehab. Program Summary."

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Dr. Lawrence A. Newman

Doctor of Chiropractic

Attorney at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

http://www.ithacadwi.com

Ithaca Cortland Lawyer Why Would a Lawyer Lie to YOU?

Well first off, as they say it's NOT a lie if YOU believe it (we call that a pathological liar).

So why do some lawyers lie? 

People place their faith, their trust, and their money in lawyers daily yet they still have reservations and suspicions.

This is a topic near and dear. First my confession, I am a liar. Yes, to get through life I lie to myself, my kids, my wife, and my friends. Sometimes lying is necessary, it is healthy, and I would even say appropriate.

Do these jeans make me look fat? of course not.
Hey what do you think of dinner? oh, these Turkey Meatloaf Muffins, they're delicious,
Or I really appreciate you signing me up for those ballroom dance lessons... I can't wait to go
Or I don't have any favorite kids, you're all my favorites,,,

Lies to myself include, you look wonderful today, you're smart, you're sexy, nah you're not short, yeah you're funny, etc. It can go on and on, but the truth is life is finite and at times stressful. Sometimes The complete truth will get you into trouble.

Choices Made Daily

Do you want to spend your finite life completely in friction?
Do you want to spend it challenging all your friends and family?
Do you want to call out people every minute of the day?

Well some people do live that way, I don't believe it to be very healthy or normal. Normal people understand when it is appropriate to lie. I don't want my wife to always tell me the truth. The truth can be ugly, the truth can hurt, and the truth is not always freeing.

SO, WHY DO Lawyers Lie?

1. To get clients to sign up. "because some people want to be lied to" 

It is true that some people want to hear of the remote possibilities, not probabilities but long shot maybes. Yeah, it could happen but how "likely" is that? Just like all horses can win but the 40-1 shot?, well you may not want to stake your future on that. Some people also want $5,000 worth of legal services for $500. That is how we have these attorneys running court house to court house with a gizzilion client files but no (to little) time for any individual file.

It is said that the majority of people are conned or lied to because they are generally seeking a deal. A crazy return of interest on their money, a car far below cost, basically something for nothing.

Remember TV and media advertising are built on selling FANTASIES.

There is NO something for nothing! 

NOTE: The Primary Avoidance Clue. "Overextension"

If you see any professional man or woman overextended in their life financially be careful about hiring them. I have practiced as a doctor of chiropractic and a lawyer in four states. After being around these men and women for some 26 years I can tell you that those who owe are stressed and may not be able to be truthful. Needy is never a good thing. Needy men seeking women, needy women seeking men, needy people are desperate. Desperate people do desperate things. My wife asks, how can you tell they are overextended? If they are living far beyond their means? If they are leasing, renting, and/or borrowing a lifestyle. If as my uncle says, "are living a champagne life with a beer pocket."

2. To get clients to leave them alone. "the crazy but possible"

I get calls all the time. My lawyer is working on my case over a year. He is working on getting my case dismissed. He said, they lost the video. No video = No case, nooooo, not with a DWI refusal. Hey, DAs regularly have trials on DWI refusal cases without videos. It is the norm in Upstate. 99% NO video.

How likely is a complete dismissal in this refusal case? In the real world, a complete dismissal of the DWI refusal charges? A big, fat maybe, I'm a betting man but I would not take that bet. Not the rule.
But clients will leave you alone if you state you are working on a crazy (but possible) outcome.

3. The truth is uncomfortable. "avoid conflict, pain, and most of all reality"

The truth is hard to digest. I like to give best case, worst case scenarios. Yes, there are a great many unpredictable parts to any case or situation. After all we are dealing with people. We can't guarantee or promise outcomes. The truth to me is a range. Sometimes we fall into the better part of that range (with effort) or the worse part of that range (usually without effort). Yes, doing nothing usually yields nothing. Working towards a realistic goal is the sane way to approach any problem. To avoid conflict, to avoid CONFRONTATION with clients some lawyers may skirt the truth.

Confrontation is the Key to Success

I learned years ago that confrontation is the key to success. Dealing with rejection is the difference between the winners and losers in life.
You can have ALL the life you can confront. Telling people in no uncertain terms your value and worth, and risking their disapproval is key.
In it's purest terms, Truth = Confrontation.

Well you can read or see by my videos, blogs, or musings I am not afraid to tell you (or anyone else) the truth.

The Truth Can Set You Free. "the great liberator"

At 51 years old, after 26 years practicing as a professional in two fields, I feel fortunate and grateful. I stick my hand directly into the bees and wasps. I believe it can make a person stronger inside to be ok with themselves. There is most definitely a time and place for truth. It is childish fantasy to believe it is always best to be truthful (or honest). As I have said, I lie to stay sane (healthy). As I try to fight the effects of age, gravity, and time I am reminded of the futility of forces beyond me.

I tell the truth in practice because it is a stress reducer. Clients I believe deserve it. Truth can Allay fears, and help manage expectations. Truth utilized this way has worked in my marriage, has worked with my friends, has worked with my children, and has worked in my practices. I do not have to remember what I have said to dozens of people, my core principles, my philosophy does not vary person to person or place to place. It is rock solid.

So the truth at last, I love my life, and I love my practice, and I work hard to love the people around me. As I like to quip, everyone has something to love about them, even the seeming unlovable.

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Dr. Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850
607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com

Ithaca Cortland Lawyer: Assumptions about Alcohol Tolerance and High BAC DWI Cases

Come on Guzzling Crown Royal, that's Sacrilegious!
all womenstalk.com

When defending a DWI case one of the first things that must be considered is the BAC level.

B.A.C. = Blood Alcohol Concentration. 

Some defense attorneys want to put their heads in the sand and pretend it doesn't exist, it doesn't count, and it doesn't matter. That is just plain crazy.

Whether the measurement level is based upon a breath or blood sample will reflect upon the "perception" of it's accuracy to those that will make and accept plea offers. Remember, a Breath test is an "indirect" measurement of Blood alcohol level. Whether this number is an accurate number is to be discussed in another time (and blog). Let's just approach it from the standpoint that it is "kinda-sorta" accurate (plus or minus 0.02 BAC). After all it will always be merely a number hanging in space until it is flushed out and challenged.

BACs and Relativity

Einstein's law of relativity is as much part of DWI defense as anything else. Really it's all relative. High and low mean nothing without a standard or a norm. Things can get tricky when stating something as erroneous as a number is truly high or truly low. Let's just say that BAC levels run the gamut from the very high (0.18 BAC is a NYS Aggravated DWI) to the very low (Less than 0.10), but generally speaking 0.15 is in many states considered moving you towards the higher range (for those non-alcoholics) of BACs.

Relative Levels of Contrast State to State

For sake of contrast, in the neighboring state of New Jersey, a 0.10 BAC is the deciding line between a 90 day license suspension, and a 210 day license suspension. And NJ offers NO conditional license or hardship license privileges. Arizona punishes more at the 0.15 level, so even state to state there is NO set standard.

THE CRUX of the Matter: BACs and Government Assumptions

If your DWI/DUI/OUI case has a BAC (any BAC) then that level may impact how they (Judges, Prosecutors, Evaluators, Probation Officers) view (perceive) your case and situation. Government can be faceless and nameless. Government can remove individuality and uniqueness. This mentality of "boxing" and "categorizing" people into black and white can be stifling and inaccurate. But government people are people and as such they make Assumptions (pre-judgments) regularly. It's NOT fair, it's NOT just, but it just is. So we need to deal with it and them. As they say, "ass-u-me and you make an ass of u and me."

Assumption #1:

A "Higher" BAC means this person has a "High" Tolerance to Alcohol. 

Tolerance means that it takes greater quantities of a given substance/drug to achieve the same affect. BTW Alcohol is a drug (socially acceptable and legal) but a drug nevertheless. People who are alcohol tolerant can have higher BACs, and still function (walk, talk, drive) while those without tolerance would pass out or throw up.

Alcohol is a toxin, and the body seeks to eliminate it quickly at higher levels (concentrations). This is what a normal, healthy, and fully functioning body does (or is supposed to do). The body will expel (eliminate) alcohol at approximately 0.015 to 0.020 per hour. So each drink takes about an hour give or take to assimilate and eliminate.

Do these government people always factor in genetics? NO.
Do they always factor in variances based upon food intake, sleep patterns, and/or gender? NO.

Assumption #2:

Higher BAC means this person has been drinking large quantities of alcohol over a long period of time.

Some District Attorneys and some Judges will assume you have a familiarity with the spirits. This is a nice way of saying, "s/he drinks regularly" and with "gusto." This person has been doing this dangerous behavior for a long time, and just has not been caught (DWI).

Assumption #3:

Higher BAC, high tolerant people have an issue with Alcohol/drugs. 

The concerns of the Court and the concerns of the District Attorney must be addressed in any DWI/DUI/OUI case. These people have a job to do. One aspect of that position is to protect the community. To eliminate threats and risks. Are you a threat? Are you a risk? This last assumption is the most important to remedy.

Allaying fear and allaying concern is an important aspect of DWI defense that is too often ignored. Defense usually deals with the front end of a case (legal practice) but never firms up for practicalities. Taking into consideration that over 90% of cases are completed with plea bargains it is foolish to pretend that risk management is the least important aspect of a DWI case. Alcohol dependency is on everyone's mind, whether it gets to their lips is another story. The nuts and bolts of drug/alcohol defense issues in a DWI/DUI case is a topic for a more lengthy and separate discussion.

How Important is Risk Management?

It is now 2012, and the world that we live in, work in, and manage is a constant negotiation. There are cases that are in-line for litigation, for trials, for hearings, for motions, but those are in the vast minority. They get the most press, the most news coverage, but they are a thin segment of the day to day realities.

The true lines that divide county jail from state prison, jail from non-jail, short term incarceration and long term incarceration, probation from conditional discharges are where the majority will have their fate. They can be easily crossed in either direction. That is how cases fall or slip into a category or as they say "by the way side." Falling into the abyss, forgotten, and done.

A counselor of law and at law will be a navigator of these treacherous waters. Of these fields loaded with land mines. Planning a strategy to deal with all aspects of a case or situation will encompass looking at the whole. The front and the back.  

Risk Management: Past, Present, and Future

A whole blog post will be devoted to the importance of dealing with a DWI/DUI/OUI case fully by considering not just what has happened (an arrest/charges) ie. YOUR PAST but more importantly how we will approach and Prepare for YOUR FUTURE (jobs, employment, certifications, degrees, licenses) etc.

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Lawrence (Larry) Newman

Ithaca, NY 14850
607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com