New York State Police Use the Draeger Alcotest for DWI Arrests: Potential Defense Issues

2012 Certification on the Draeger

DOWNSTATE DWI TESTING

New York State uses a variety of breath alcohol testing devices to prove DWI (Driving While Intoxicated) crimes. In the Boroughs, and downstate (Queens, Manhattan, Brooklyn, the Bronx, Staten Island, Long Island) they utilize the Intoxilyzer 8000.

UPSTATE DWI TESTING

Law enforcement in Upstate New York Towns, Villages, and Cities use the Datamaster DMT. The state police love the Draeger Alcotest, which comes in two models the 7110 and 9510. By far the Draeger is the state of the art unit. It has dual sensor technology (two forms of testing) consisting of an electrochemical (fuel cell) system and an Infrared System.

What's in a name?Is it an Instrument, a Device, or a Machine?

The police, the prosecutors, and the manufacturers love to call them "instruments" but many of us in the defense community just loosely refer to them as "machines." At the certification class I just attended the instrument creator, and vice president of Draeger, Hansueli Ryser (I kept thinking Hans Solo from Star Wars) got upset that I referred to it as a machine, he said "Larry it's an instrument not a machine." I can understand the sensitivity, afterall I would not want my instrument which measures blood alcohol concentration to an accurate degree referred to as a mere machine just as the late Steve Jobs would not want his iphone referred to as a phone.

Evidential Breath Testing BUT does it Equal "Valid" and "Accurate" Evidence 

They are technically and more importantly legally recognized as evidential breath alcohol testing units. The evidential means that they have been approved, certified, and most importantly recognized to yield results that can be used in Court as "evidence" and as "proof" of the BAC (blood alcohol concentration) at the time (or there abouts) of testing.

This proof can be used against you to prove you were Driving While Intoxicated or Driving While Impaired in New York State. The list of approved devices is huge. These are just the best of the lot and the ones used in New York State. 

The Issues with Breath Testing

As great as these units are they have their limitations and issues. Just like any computer or microprocessor based system, garbage in yields garbage out. 

1. Must have a Good Sample of Breath.

One of the most important aspects of breath testing is gathering a sufficient, clean, and accurate sample of breath. There is a mandatory period of uninterrupted and continuous observation of the person before blowing into the unit. This is a big point of contention (defense) in many states with breath testing. Police observation in the back of police car (cruiser) prior to testing does not count. Leaving the subject in the room unattended does not count. Turning around to do paperwork does not count. 

Uninterrupted means uninterrupted.

Continuous means continuous.

In New York State it is a 20 minute period of time for this observation and not one minute less.

2. Biological Variables Person to Person

The units are set for the average person with an average basal (body) temperature with an average breath. Even the best of units will have a range of error just based upon this. They say the average person is Chinese, a female, and dead so averages can be deceiving and wrong.

3. The BIG Assumption

The biggest assumption with evidential breath testing is that the subject is done metabolizing alcohol. In other words you (and your body) are beyond the absorption phase. Your body has completely absorbed all the alcohol consumed and NOW you are completely in the elimination phase of alcohol. Why is this fact so important? Because prior to complete elimination your body will have varying concentrations of alcohol between the breath, the blood, the lungs, and cardiovascular system.

All of this is based upon Henry's Law which basically states that in a closed system of liquid and gas eventually the concentration of the molecules of a substance in the liquid will be equal to the concentration of the molecules of the substance in the gas above it. In the realms of breath alcohol testing we have BREATH (the gas) and BLOOD (the liquid).

From thescubastop.com

For illustration, #1 is one to one ratio (balanced), then #2 we have increased alcohol concentration in the lung (breath) tissues during the alcohol absorption phase, then #3 balanced alcohol in lung (breath) and blood in elimination (expiration) phase.

So in the absorption phase (#2) we have an unequal concentration of alcohol in gas (breath) and alcohol in blood (blood alcohol concentration). In fact in the absorption phase (#2) we have a higher BAC in the breath (cardiovascular/lungs/heart) area of the body and a lower BAC in the blood system.

So no matter how good a machine/instrument/unit/device we have these areas of contention. The human variables are always present without even getting into the problems with an accurate measurement.

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 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.

Reviews of Larry Newman:

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

Dr. Lawrence Newman

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

http://www.ithacadwi.com

  

Ithaca Cortland Lawyer Answers How Long Does it Take a Scaphoid Fracture to Heal?

The little bone with a BIG Purpose

The Scaphoid (aka navicular) bone in the wrist is unique for a great many reasons. I like to call it the Small bone with a BIG purpose. If you hurt your hand or wrist in an auto accident make sure your hands are completely evaluated for issues/problems. The worst thing is an undiagnosed (undiscovered) injury that goes UN-treated. It can spell disaster to your future ability to be fully functional.

THE SCAPHOID IS UNIQUE

1. It "is" to the wrist and hand as the "knee" is to the leg, a firm foundational structure to allow for (permit) full strength, support, and function. Without a healthy, proper, and healed Scaphoid our hand, fingers, and wrist are in trouble as is the leg, hip, and foot if the Knee has an issue.

2. The blood supply to this bone can be backwards. Therefore the point of injury or break is crucial in determining (a) the amount of damage to the bone and (b) how long it will take to fully heal.

Which brings us to today and the question, just how long does it take a Scaphoid to heal?

Fast answer, 4-6 weeks to 10- 12 months. That is a BIG "to"...

It Depends On Three Main Things:

1. Area of fracture to the bone.

Fractures closest to the thumb: HEAL THE FASTEST.
Best source of blood

Fractures closer to the body (direction closer up the forearm) to the middle of the bone take LONGER.
Fractures to the Scaphoid at the tip (away from the thumb) take the LONGEST.

Middle and tip fracture spots may require surgery.

2. Age, If you are younger you heal much faster. Older people heal much slower.

3. Health, People with underlying health problems heal much slower. Those with auto-immune diseases, like diabetes, lupus, rheumatoid arthritis, etc. take far longer to heal. Any chronic inflammatory condition will impede and delay (block) healing time.

General Take Aways: Do not settle or close a personal (damage) claim to your hand, wrist, or arm injuries until you are determined to be cleared and stable by your doctors. Lingering problems can be a sign of long term permanent impairment that must be documented for you to be fully compensated.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

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

http://www.ithacainjurylawyer.com

Ithaca Cortland Lawyer Says "Don't Look a Gift Horse Traffic Ticket in the Mouth"

What a Beautiful Gift Horse!
From dmitryscloset.wordpress.com

You know the old expression "don't look a gift horse in the mouth" well it is as true in criminal law as it is true in any other part of life. I got a fax today from a out of town lawyer asking me to help him do a case in one of the Courts I frequent regularly.

Nice to get a request but it had things that bothered me:

1. A cap on my fees (I hate that), I practice solo so no one tells me what I charge (except my wife)
2. Required a Court appearance by me and a Canadian (good luck with the second part of that sentence)
3. It involved a non-moving, no point violation/offense

This last thing really got me, why the hell are these lawyers even bothering to litigate or charge or be this involved (the fax to me was 8 pages) on something so trivial? Why are they making a mountain out of a mole hill? Why? Why? Why? Is it the money? I don't know what possesses some people.

Honestly, this is not something that should have ever been taken (accepted) under "legal" representation.

I tell people if you got caught for speeding and the cop/trooper/deputy gives you an  NYS VTL 1110 (a) Failure to Obey a Traffic Device (non-descript, 2 pointer), accept it, pay it and move on. It was the proverbial "gift horse." You GOT a GIFT! GET IT! A GIFT! They did you a favor, they cut you a break.

So in this case the gift was even more shall I say generous, they charged a NYS VTL 1201, parking/standing on pavement, yes Virginia that is merely a "Parking" ticket. Carries NO POINTS in NYS and Canada.

So why did they take this case on? Why did they charge this poor (ignorant) person hundreds of dollars to litigate a parking ticket? Is it principle or something? Why now involve me? Why even ask me?

Aren't you embarassed to do this type of horseshit, yeah I said horseshit because that is what it is. Tell the man to pay his fine, and move on. Done, stop trying to create issues when there are NONE.

Now tell me how you really feel, anyway I feel better now, all the best and Don't ever look a gift horse in the mouth because I don't.

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 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.

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

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY 14850

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

http://www.ithacadwi.com

Ithaca Cortland Lawyer New York's Evil Triad: The DMV Classifies Serious Traffic Offenses

From broomedocs.com

When I think serious I think like "Serious" with a capital S. As in Lethal (deadly) like bleeding, As in hypothermia (getting cold), As in emergency, As in comparing truly serious offenses with minor offenses (like those with jail as a consequence and those without jail as a consequence).

BUT Under the New York State DMV Vehicle and Traffic Law (the VTL) Serious is defined differently:

The TRIAD of Serious Traffic Offenses (aka Serious Traffic Violations) include:

• Unsafe (moving from) Lane Change NYS VTL 1128 (a) 
• Speeding 15 mph or more NYS VTL 1180 (d)
• Following Too Closely NYS VTL 1129 (a)

NOT included is Reckless Driving VTL 1212 (which is another STO) but is classified as a Misdemeanor (crime) under NYS law. The above are all Violation Level (non-criminal) but SERIOUS.

The Consequences of Convictions of these SERIOUS Offenses:

• Insurance Rate Increases (under NYS law for up to three years)
• Potential Driver's License Suspensions for accumulative violations
• Increased Dangers and Sensitivities to CDL (commercial driver license) holders
• Points, Fines, and NYS DMV Driver Responsibility Assessment Surcharges

Talk to/consult with an attorney before pleading guilty to any SERIOUS traffic offense. The potential collateral damage may warrant the cost of hiring counsel. 

In other words it may PAY instead of COST to hire a lawyer.

Reviews of Larry Newman:

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

Lawrence Newman, D.C., Esq.

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 Can You Be Charged based Upon Drug Resin? Is that Possible?

From Magic-Mushroom.net

I recently defended some drug cases involving mushrooms (not portobellos or criminis), and a host of other "fun" drugs. Rock/Music Concerts like the Grassroots Festival in Trumansburg, New York bring people from far and wide to enjoy the festivities. Unfortunately, this is probably not the best place to bring your drugs. The police know from prior events that those attending like to distort reality through chemistry. Law enforcement is present through and around all aspects of the multi-day event. Cars get stopped, people get searched, and arrests take place. What should be a weekend of fun turns into something unwanted when laws get broken.

One of my cases had such a small amount of drugs that the police had to scrape it from the paraphernalia and containers. The folks arrested looked on incredulously as the police "gathered" the evidence against them. They got charged with Criminal Possession of a Controlled Substance in the Seventh Degree (a criminal misdemeanor).

Yes Virginia, there are a great many things legal that make no sense (common) that is. I still don't understand that Arizona has speeding tickets that are classified as criminal offenses but also lax gun laws or that Canada thinks almost everything (we classify as a violation) is an indictable and criminal offense (in Canada).

So I live and practice in the Great State of New York. We have some draconian drug laws. The Rockefeller laws of 1973 still reverberate throughout our Court rooms. Now when you think DRACO think small offenses with big/harsh punishments. Remember that these drug laws have been around for a long time and we must abide by them.

New York Penal Law 

Section 220.03 Criminal possession of a controlled substance in the seventh degree.
 

A person is guilty of criminal possession of a controlled substance in
the seventh degree when he or she knowingly and unlawfully  possesses  a
controlled  substance;  provided,  however,  that  it  shall  not  be  a
violation of this section when a person possesses a residual amount of a
controlled substance and that residual amount is in or on  a  hypodermic
syringe  or hypodermic needle obtained and possessed pursuant to section
thirty-three hundred eighty-one of the public health law; nor  shall  it
be  a violation of this section when a person's unlawful possession of a
controlled substance is discovered as  a  result  of  seeking  immediate
health  care as defined in paragraph (b) of subdivision three of section
220.78 of the penal law, for either another person  or  him  or  herself
because  such person is experiencing a drug or alcohol overdose or other
life threatening medical  emergency  as  defined  in  paragraph  (a)  of
subdivision three of section 220.78 of the penal law.
  Criminal possession of a controlled substance in the seventh degree is a
 class A misdemeanor (a crime). Punishable by up to one year of jail, three years of probation supervision, etc. etc.

Can you be held (arrested), tried, and convicted for RESIN (a residual amount) of a 

drug/substance in New York State?

Yes, in the case of People v. Mizell, 72 N.Y.2d 651 (1988) a small and unusable 

amount of cocaine was held by the highest New York State Court to be Enuff for 

a drug conviction.

Reviews of Larry Newman:

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

An "Unusable" amount of a drug is enough to uphold a conviction under New York State Penal Law 220.03.

Often first time drug offenses can be defended and negotiated with the 

District Attorney.

Sometimes it is necessary to have a drug/alcohol assessment, undergo counseling,

and/or a combination of things. Depending upon weight, and a host of other 

factors, remember cases must be evaluated completely for the best outcomes.

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

504 North Aurora Street

Ithaca, NY 14850

newman.lawrence@gmail.com

607-229-5184

http://www.ithacadwi.com