DWI Probable Cause: The Shadow of Doubt and the Importance of Timing

Is the world just white and black? from mindmixxes.blogspot.com 

So often people love to paint everything as black/white, or yes/no. I guess it is easier to understand and digest if the world were all so easy. Decisions being right/wrong and good/bad, but alas Virginia, it is not so and never has been.

Why Do they Call it the "Shadow of Doubt?"

In the world of legal defense and the law in general a great many issues and problems come in varying degrees and shades of grey. Yes sometimes grey is dull and lifeless as a color but more importantly things need to be viewed by a DEGREE. The color grey is much like that shadow that casts doubt. People often say, "Beyond a shadow of doubt or without a doubt."

Forget Was and Focus on When

Most law and legal issues are a matter of degree and perspective. In the matter of New York DWI arrests most lawyers and laypeople ask the basic question, "was there PC (probable cause) to make a DWI arrest?"
This is a rather low standard, and usually easily met by the police. Most cases are going to have a WAS.
I believe that the better inquiry in many cases is the "When?" question.

The When Question in Finding NY PC for a DWI Arrest

"When did you decide to arrest for the DWI?" "At what point in your investigation did you make the decision to charge and arrest for DWI?"

Why is the point in time of an arrest so important in a New York DWI case?

Such Confusion, Which bed is best? from oncoloring.com

The Three Bears

I love children's stories. They have simple messages. So clear and concise and much like the childhood story of the Goldilocks and the three bears, one bed was too soft, one bed was too hard, and the last bed being just right, there is a point in time in any DWI arrest to be at that "just right" point. Police have to be, as they say on the money, or at least within the range of reasonable. If you don't like my rendition of the three bears you can have the porridge temperature version instead.

What is PC (Probable Cause)?

Reasonable and trustworthy information that a particular person has committed a particular crime.
In a recent DWI case, a defendant hit a car, stayed at the scene, and had his friends drive his away. Then the troopers showed up. He was in fact, drunk as a skunk. Standing next to the car he hit and damaged. He smelled of alcohol, looked wasted, and walked it.

THE Big BUT

But there was no car, no witnessed driving, and he was charged with two DWIs (common law and breath test) based upon his own admissions of driving.  The Court tossed the case for lack of Probable Cause. Not enough evidence of the crime (DWI) being committed by this particular person on this particular date. They (law enforcement) cannot make a criminal case solely upon your admissions to it.

Too Quick is Bad for the Police

If the police are too quick in their decision making process, then they have maybe rushed to judgment. Maybe there is in fact insufficient evidence of common law DWI? After all their investigation is an evidence gathering process. Did they stop short of the goal?

Too Slow is Bad for the Police (damaging)

If the police take too long to make an arrest decision then maybe they were unsure of a motorist's intoxication and/or impairment. Maybe they needed to do seven or eight field sobriety tests instead of the standardized big three for a reason. Their uncertainty can be leveraged and harnessed by a DWI defense attorney at a later date to cast a shadow (s) of doubt on the process and the arrest, and most importantly the charges.

Take Away: Remember Police have Stages of DWI Investigation

STOP of the Car
First Contact with the Motorist
Exit of the Car
Sobriety Testing
Questions and Answers
Portable (field/roadside) Breath Testing
Arrest Decision

At each and every stage in the process they are assessing, gathering, recording, and most importantly deciding what they will charge and WHEN they will charge it.

Larry Newman
Doctor of Chiropractic
Attorney and Counselor at Law

http://www.ithacadwi.com

607-229-5184

Is Your DWI Attorney Leaving You High and Dry?

High and Dry Sucks! from redbubble.com

I love clever and succint expressions, I guess I am getting older (my kids say getting OLD). But think about American English, it has so many clear idiomatic phrases, like being left "high and dry."

If you are left high and dry, someone has left you alone without help or assistance to fend for yourself when you really need it. It comes from an old shipping term, when ships were beached "high and dry" without water. I do not want my clients to be "beached and helpless."

At the end of every DWI case there are many forms, papers, and obligations to the Court, the New York DMV, and maybe even the District Attorney. Helping you understand and fulfill these is part of the job of your attorney. I get a great many calls from people without a clue about what comes next. I'm kinda like the guy that fixes the $5.00 haircuts.

When people ask me, so what are you going to do that the public defender and/or that much cheaper lawyer down the block is not going to do for me.

My # 1 and only point!

I am not going to leave you HIGH and DRY.

A recent Aggravated DWI case (reduced) in Schuyler County, the Court did not tell him who to contact next, no number, no timeline, no resources, where to go, when to go, etc.

My closing summary (four pages) plus my availability (counsel) to answer questions, this is a mere piece of that:

The Court imposed a “Conditional Discharge” where certain conditions must be met, a C.D. is in lieu of jail time and/or three years of probation supervision:

1. No new crimes and/or offenses for one year.

2. A fine of 590.00 and NYS surcharge of $485 on the VTL violation, for a total of $1075.00, to pay.

3. You will be assessed a DMV Surcharge of $250/year for three years. The DMV will send you an invoice letter.

4. You will enroll and complete the DDP, Drinking Driver Program, and obtain a Conditional License.

5. As we discussed, you are required to get an Ignition Interlock Device placed upon your car within 10 days, March 21, 2013.

Please Notify the Schuyler County Probation IID Monitor ASAP (you have 3 days).

Chris Rosno

Director of Schuyler County Probation

scprobation@co.schuyler.ny.us

105 Ninth St.

Watkins Glen, NY 14891

607-535-8165

Call Intoxalock make an appt, Phone (877) 777-5020, location 6800 Route 415 South Bath, NY 14810

6. Victim Impact Panel, 03/27/13, 630PM Tompkins County Courthouse

Contact ASAP to schedule: Michelle Barber

Address: 320 North Tioga Street, 3rd Floor

Ithaca, NY 14850

Phone: 607-274-5461

Fax: 607-274-5429

Email: mbarber@tompkins-co.org

They will breath test you at the door.

plus information on auto insurance, and DDP, and Interlocks, and Canada, and and

You get my point. If you think you will get this from the large majority of attorneys (practicing in any area) you are sadly mistaken.

Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY
newman.lawrence@gmail.com

607-229-5184

http://www.ithacadwi.com

DWI Testing: The Dangers of Believing in Machine Results

Just blow, and  Viola!  An "Accurate" Blood Alcohol Concentration

I have a love/hate relationship with a great many things, one of them is computers. When they work, I absolutely adore them but when they malfunction or don't work as I would like (or expect) I have deep hatred for them, maybe even loathe is not too strong a word.

My wife and I frequent the movies at the Ithaca Mall. Conveniently perched on the way to the movie theater entrance is a blood pressure machine. It sits there waiting and beckoning people to come forth and self-test their blood pressure.

Machines, Are they accurate? Should we blindly trust them?

Assumptions Make an "Ass of U and Me"

There is an assumption we give (more like place) upon these public machines, it is this, they will give a somewhat "accurate" reading. So many Questions arise: Will these numbers be highly accurate? How much trust or faith should I place upon the numbers generated? Are they enough for me to warrant scheduling a doctor's visit?

My wife was a bit perturbed and upset on our last movie visit. Her pressure read high, as in you better call the doctor. Here is a woman who is pretty fit so finding these alarming numbers were a surprise. Later on she went to the Doctor to get this checked out (as in confirmed) she found her blood pressure was NOT high, she was fine.

How many clients are surprised by their BAC (Blood Alcohol Concentration) numbers?

Are these machines always accurate? Of course not. They have ranges of error and rely upon proper procedures to help ensure better results.

Mental and Emotional States Can Affect Results

For a doctor to make a HTN (hypertension) diagnosis (high blood pressure) they need three separate office visits, with three separate pressures showing high numbers. They also take into consideration, white coat hypertension, patients whose pressure is high just based upon seeing (visiting) the doctor.

I have never (did I state never?) had a police officer admit someone was nervous or demonstrated anxiety by being stopped by them. Even those hysterically crying were never characterized as nervous or anxious.
Funny?

On DWI arrests sometimes nervous/anxious/upset/scared people fail the field sobriety testing miserably because they are nervous/anxious/upset/scared . Balance, coordination, and answering questions are far more difficult if you are in front of a person with a uniform, badge, and gun who is about to arrest you.

Larry Newman
Doctor of Chiropractic
Attorney at Law

607-229-5184

http://www.ithacadwi.com

The Heathy Response to Your New York DWI

Lawyers? An Overreaction, you decide? from quickmeme.com

People accept (or reject) bad news in a multitude of ways, some just avoid it completely, as in denial, some get angry at themselves, and some get angry at others. Recently, a man in Plattsburgh, NY set himself on fire 2 hours after his DWI arrest. Now the man was 60 years of age, and I don't know the back story but overreaction to DWIs is not as unusual as you might imagine.

The Reaction versus The Response

I have seen the gamut of overreactions to first, second, and third DWI arrests ranging from drinking binges to suicide. I have seen people get new DWIs following pending DWI charges.

First, why? because once people think they messed up it just drives them into an even greater (deeper) depression. Hurting yourself becomes the norm. They feel at some level they need to be punished and self punishment is maybe more controlled and predictable.

I believe that Any "reaction" is bad AND it is far better to "respond" to YOUR problems. It may sound purely semantic, as in word games but taking response-ability is ultimately healthier.

Larry Newman, Junior psychologist?

Now before you label me amateur junior psychologist let me state for the record, I am not a psychologist, nor trying to diagnose mental disease of my clients but I do care about people. I want them to maintain a healthy perspective as to what they are facing with any DWI charge. Waste of life and human potential is so horrible to watch. Getting a DWI is not the end of your life. Yes it is a problem, a looming challenge, and there may be issues (some underlying) that will need to be addressed but overreaction helps noone.
Least of all, YOU!

Self Infliction of Pain, not pretty. from ibtimes.com

Playing it Over and Over: The Broken Record of Pain

Some people get caught in the stages/cycles of grief (anger, denial, acceptance, bargaining, depression). They may cycle over and through these as with any "loss" or "perceived loss." I call it the broken record of pain. This is neither healthy nor productive. You are standing in place self flagellating (as in, stop hitting yourself).

So here is my take as a DWI Defense lawyer, four things you should keep in mind to best deal with your DWI charges:

1. There is no black and white DWI charge.

All DWIs come in shades of grey, discuss with your attorney where yours lies on the spectrum of cases and situations. Compare your situation to others to have a healthy context. Usually a DWI without people or property damage is better than one with it.

2. What is your true exposure? 

What is the worst case scenario? What is the best case scenario?
Is it jail? Is it probation? Is it community service? Is it financial? Is it your job? Is it your license? I other words what are you facing from the Court, the DMV, and your family/friends. Can you, will you face the worst and still surmount it?

3. What can "you" be doing to help your situation? 

Being proactive early can alleviate a lot of uncertainty. Taking ownership of your issues with your attorney is healthier than just giving your problem away to someone. I like the participant approach, you are better knowing about everything than being a mushroom in the dark. Whether the issues are health and/or legal related being a spectator dooms you to repetition.

4. Ask lots of questions. 

This approach to seeking answers aligns completely with the participant model. You may find that the Court will give you time to pay any fines or surcharges, you may find that the license loss is for a much shorter time period than you imagined, and you may find that jail/prison is not likely. After the attorney has all the facts, discovery, and documents they may find that there are viable defenses to your charges.

In the end, to "err is human and to forgive divine." 

I personally have learned and grown more from my "mistakes" than from all my "successes." Problems are deeply transformative if you allow them to be. I believe that your DWI can be another lesson and ultimately a blessing if you have a better perspective.

Larry Newman
Doctor of Chiropractic
Attorney and Counselor at Law

http://www.ithacadwi.com

newman.lawrence@gmail.com

Ithaca Lawyer Understanding YOUR DWI Sixth Amendment Rights are Meaty

Your New York Fair Trial Rights, A Meaty Amendment
from servicesannenbergclasroom.org

People love throwing around the Bill of Rights, and the amendments to the Constitution piecemeal. As if each amendment equals one right you have.

In truth the Sixth Amendment is a "meaty" amendment. It has a lot going on and gives you your "Fair Trial Rights." It may be one amendment but it is packed with entitlements and protections.

First some clarification, The First Ten Amendments = Your Bill of Rights.
The Sixth Amendment is specifically related to your Rights Involving Criminal Process against YOU.
These are the protections afforded us against the government. They were fought for long and hard by our forefathers (and mothers).

DWI cases are defended and fought based upon the 4th, 5th, and 6th Amendments.
The Sixth Amendment has these 7 parts:

1. Right to a Speedy Trial
There is a time table. They can't take forever to prosecute you.

2. Right to a Public Trial
You have a right to have everyone know how you have been treated (fairly or unfairly). No secrets, total transparency.

3. Right to an Impartial Jury
You are entitled to pick a jury. Sometimes this is more like a de-select a jury.

4. Right to Confront Witnesses (this is also called the "Confrontation Clause")
You have a right to question those accusing you of criminal behavior. To bring to light their biases, their prejudices, and to challenge their opinions. In a DWI case these are usually police witnesses.

5. Right to Compel the Court to Subpoena Witnesses
You have the right to make people come to Court.

6. Right to an Attorney (counsel)
You have a right to be assisted by an attorney at every step/stage in the process.

7. Right to Information and Notice of what the charges are and what proof they plan to use
You have a right to know what you are charged with, how they plan on proving these charges against you, and what specific statements they plan on using against you

Every person accused of a DWI has these Basic Constitutional Rights. Their attorney is there to assist them, assure them, and use them to protect their interests at every stage of the process. None of this should be taken lightly.

Larry Newman, D.C., J.D.

http://www.ithacadwi.com

607-229-5184

Ithaca Lawyer Defending the NY DWI with The Police Alphabet Test

Alphabet test, OMG, from joyreactor.com

Sometimes I muse it might be fun being a cop. Why you ask? 

1. They get to command, direct, and instruct people as part of their investigative power. 

2. They get to make shit up. They can lie, and they can use their imaginations to get to the truth.

When it comes to DWI investigations they get to make up their own tests. These are called the 

NON-standardized field sobriety tests because they have NO standards. There is no procedure, instruction, scoring, or method by which we can all agree that someone passes or fails. It is all up to the individual police officer or trooper to decide. How fun is that?

One such test they love to give is the Alphabet test. I have even seen officers give this to foreigners (people whose 2nd language is English). They usually begin by asking people what grade they completed and if they understand English. 

Ithaca Police or IPD, from centralny.wnn.com

1. Alphabet must be said not sing songed. 

The police do not want to hear you say the alphabet as you learned it as a child. This is too easy.

2. They will pick a specific letter to start and end with. This is usually not letter "a" to letter "z." Again way too easy. They will usually pick letter "j" to letter "u."

3. They will want you to begin when they instruct you to.

The alphabet is one of those non-standardized tests that I like for a number of reasons.

1. Even drunk (impaired) people can remember their alphabet. It is so ingrained in the brain.

2. You can usually speak the pronounce the letters articulately. The officer can generally understand you because they know what comes next and know the sequence.

3. It can demonstrate your memory, your alertness, and your cognitive abilities. 

4. Your performance can attack police testimony that your speech was slurred or that you were incoherent.

All in all, I prefer the police alphabet test over many of the other "made up" sobriety tests. 

Larry Newman, D.C., Esq.

newman.lawrence@gmail.com

 607-229-5184

http://www.ithacadwi.com 

Using the NYS Trooper STOP of a Car to Defend a New York DWI

New York State Troopers have great hats and uniforms
from forums.officers.com

The New York State police are great psychologists. Why the badge, the uniform, and the big hat? Because you can argue with a person (a human), you are not going to argue with a Trooper. They have to be masters at the psychology of control and manipulation because their jobs and lives depend upon figuring people out and taking command.

They must quickly assess, control, and take charge of situations. Sometimes these situations may involve people strung out on drugs and alcohol. Sometimes they are dealing with people who are fighting, arguing, yelling, and/or in the throes of craziness.

Trooper Take Down 101, from flicker.dwightsghost

The most dangerous thing a trooper will ever do is pull over (STOP) a car. Safety is paramount, because they just don't know so many things. They don't know if the person in the car is wanted, is dangerous, is high, is armed, and most importantly is going to try to hurt them. All that uncertainty leads them to approach these car stops with a lot of caution.

Once they notice a violation (equipment/moving) they will turn on their "take down" lights. Perhaps they will also use their siren. Once the car pulls over it is literally bathed in light. This for officer safety.

All the details of the STOP of the car can be used to help defend a DWI case.

A motorist's "Mental and Physical" ability is displayed not just on field sobriety tests but at every moment of their encounter and investigation with a State Trooper.

1. The trooper will first note your ability to respond to his lights in their report.

Did you slow to a stop and respond quickly to his lights? Did you pull safely to the right? Did you use your blinkers (turn signal)? Did you pull to a safe location? Did you park parallel to the pavement?
Did you strike or hit the curb? Did you place the car in park? Did you turn off the car?

2. The trooper is going to be able to see inside the car completely. They will be looking at all of your physical movements inside the car. 

Did you turn off the car? Did you remove your seatbelt? Were you able to open the glove box and take out a registration/insurance? Were you able to retrieve your license from your wallet? Did you put down the window?

Did you fumble? Did you struggle to open the glove box? Did you fail or forget to get your license out of your wallet? Did you give them a credit card and not a license?

Alcohol affects physical coordination and fine motor movements. People who are impaired or intoxicated have difficulty with even simple tasks.

3. Every trooper command, direction, and instruction is a mini-test.

Did you follow the instructions? Did you appear to understand all his/her directions? Were your responses to these commands appropriate?

Did you stare at them blankly after they asked you a question? Were you slow to respond to their commands?

Alcohol affects mental function and cognition. People who are under the influence may not be alert and aware of their surroundings. They may be slow or lack the ability to follow even simple directions.

4. Your exit of the car will be observed closely.

Did you trip, stumble, or fall? Did you use the car's door frame to balance? Did you need to hold on to the car after your exit? Did you remember to take off your seat belt before exiting?

All of this occurs prior to the giving of any FSTs (Field Sobriety Tests). That is why THE STOP of the car must be scrutinized. The defense of a DWI case must look at ALL aspects of your contact with law enforcement not just the ones that they (the police) may selectively highlight.

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

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY
newman.lawrence@gmail.com

607-229-5184

http://www.ithacadwi.com