Ithaca Lawyer Discusses Warnings and Precautions About New York Ignition Interlock Devices

As a DWI defense lawyer practicing in the Finger Lakes I see a great many clients who eventually require an ignition interlock installed in their cars. Leandra's Law is real, it is here, and it is enforced Statewide. What you (or your lawyer) don't know can and will hurt you.

IID BASICS or the Most Common FAQs

1. Is an IID a Must or a Should have?

The IID is not discretionary for NYS DWIs, it is Mandatory since August, 2010.
The Judges and the District Attorneys have no leeway or power here, if is a DWI (VTL 1192 (2), VTL 1192 (3), or ADWI (VTL 1192 (a) (a) then a device MUST be installed within 10 days of sentencing.
Bottom Line: There is NO plea bargaining concerning IIDs.

2. What if I live in another state?

It does not matter if you live in NYS or someplace else, you will have to get it installed. So if you live in PA, TX, or CA expect to hunt down an IID provider location, and then they will report back to the county monitor in NYS every 30 days. many of these IID providers have National Support. If you plan on moving (relocating) then plan on continuing monitoring as well. As long as the County Monitor is kept informed and updated it should not be a problem. The device must be downloaded at a physical location every 30 days.
Download times run 5 to 15 minutes. Some places can come out to your car with a handheld downloader.

I have not had the issue with "Out of the Country" (Foreign) License Holders unless they desired NYS privileges. My Canadian Clients end up with far worse consequences from their own country.

3. Could you just say (tell the Court) that you don't have (own) a car?

You could but it is still on your NYS DMV record, a hold will be in place by the county monitor (will be seen in any other state). With this new thing called the internet, and a National Registry of licenses:

http://en.wikipedia.org/wiki/National_Driver_Register

When you apply for a license or renew an existing license then they will run your record. If it shows up with a serious driving offense, like a DWI or DUI then the system is alerted. Your license (or driving privilege) in NYS will remain revoked UNTIL it is lifted by the County IID Monitor. If you choose NOT to comply with the NYS Court Ordered IID then other states will not give you (or renew) driving privileges either.

All Motor Vehicle Associations must check you under Federal Law 23 CFR 1327.5(b)(1). 

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div8&view=text&node=23:1.0.3.17.2.0.1.5&idno=23

4. What if You really don't Own a car?

It still remains on your NYS record, and the National Database as a revoked privilege/license. I have had clients have to borrow or buy cars to fulfill the Court obligation. They had a rental car, and were merely visiting NYS when they received a DWI. A Court Order is a Mandatory Obligation. It cannot be argued that you are in an unreasonable situation. In fact, a North Carolina client had to figure a way to get their car to a state with IID providers because North Carolina has none.  When I spoke to NYS DMV they just shrugged it off, not a perfect law by any stretch of the imagination. It has a great many issues with practical application in a day and age where people frequently travel, relocate, and are city dwellers.

5. Can it be installed prior to the Court's sentencing?

You "may" be able to get it installed BUT most places (providers) will NOT install it without the Court documents/final Court Order.

6. Are there differences between the units (IIDs)?

For sentences of a CD (Conditional Discharge) which is lieu of Probation and/or Jail, the Tompkins County Monitor has only been requiring a Class I (lowest level device). This one is the least expensive, and has NO camera. Higher level and naturally more costly devices have cameras to take your picture when blowing.

In Tompkins County, Probation sentences require the Class 3 device (with Camera) for the three year probation term.

7. Where Can I get one (an IID) in Tompkins County?

 In Tompkins County we have three main providers:

1. Route 366 and Route 13 next to AAA Motor Club, Autowerks (carries Smartstart IID vendor)

2. Highway Hi Fi, on Route 13 across from Papa John's Pizza Plaza.

3. Hunt's Auto service, Intoxalock Vendor, a little across from Tompkins Trust off Route 13.

Smart start was offering a free install, as an incentive, But I prefer the Intoxalock to avoid problems with the device's operation.

8. How do I get One installed?

You just call and say you need an IID, they will schedule you. Bring the final Court Order. Takes about an hour or less to install. Camera IIDs take longer because of the camera placement.

9. What else Must I do when installing the IID?

You must contact the County Monitor within 3 days of sentencing. It may be a different person if you are on a term of Probation versus receiving a CD (Conditional Discharge). Generally the minimum term for the device is 6 months, but some Judges place it on for 12 months or longer, even for a CD. All misdemeanor Probation terms are for three years.

The contact name and number for the Tompkins county IID monitor:

Michelle Barber:             Phone: 607-274-5461

Fax:  607-274-5429

Email: mbarber@tompkins-co.org

10. What Should I be aware of when installing the IID?

My Warnings: 

                           1. If the car that is getting the install has issues (mechanical and/or electrical) with the following it "can" affect the function of the device:

low battery

alternator voltage

defective horn

untimed engine

frequent stalling

Check the car out throughly before it gets this device installed. People that do not (screen and fix) or place it upon a junker are not usually happy because the device will malfunction. This can then provide the monitor with false readings of intoxication.

                           2. Do not drink the night before you drive, or else the device may be triggered from alcohol still in your system (body). 

WARNING: A BAC of .05 is an automatic Serious Violation/Failure that will require a Court Appearance.

                           3. Do not use cologne, perfume, mouth wash, toothpaste, mints while in the car or with anything that could trigger the device

11. How is the device set up and used?

The unit is calibrated for up to .25 BAC before it triggers but that said I would not rely upon that as a number because your body naturally produces some alcohol.

-the unit will demand a start up test

-then an initial rolling test (within a random interval ranging from 5 - 15 minutes) 

-subsequent rolling tests, not to exceed 30 minutes

They will (the installer) give you more information, these are merely some highlights. 

12. What if I am in found in Violation?

A violation of a CD will result in your being re-sentenced by the Court. The matter can be re-opened, you can receive jail time, you can receive three years of probation, you can receive a longer term for the IID to be in place.

Law Offices of Lawrence Newman

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

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

In Honor of William Sellers, The Lawyer's Lawyer

I recently learned of the sudden passing of William Sellers. Willie was a dear friend, a brother, and a cherished member of our legal community. Will was not just intelligent, he was street smart. He had a way of cutting through to the truth. He could size up situations, and see through people. Will was old school, he took it all in, and had a little glint in his eye that said everything. Will didn't just enter a room, he lit up the room. His personality was larger than life because his presence was so full of life. He made everyone laugh, at life, at himself, and his smile was absolutely infectious. I will forever remember our moments spent talking. Will loved to talk, and his voice was beautiful. He could draw people in like a magnet, and tell a story. That's what made him a great lawyer, Will was an amazing storyteller. You just couldn't not like him, he was so charming. There will never be another like him. He was a genuine and gracious man. He will be missed, he was to me and so many others the lawyer's lawyer.

                          REQUIEM

                                                         by: Robert Louis Stevenson

                              NDER the wide and starry sky,

                               Dig the grave and let me lie.

                               Glad did I live and gladly die,

                               And I laid me down with a will.

 

                               This be the verse you grave for me:

                               Here he lies where he longed to be;

                              Home is the sailor, home from the sea,

                              And the hunter home from the hill.

Pitfalls of a NYS Speeding Ticket & DIY (Doing It Yourself)

I hear lots of stories, they keep me amused. Too many people after the fact want to hire a lawyer to "fix" their problem. I say after the fact because the timing of events is an essential component of legal strategy. This is especially true with traffic tickets.

I got a call from a guy with a speeding ticket. Stopped for doing 88 in a 65, so a six point VTL (vehicle and traffic law) 1180 (d). BTW six pointers trigger NYS DMV driver responsibility fees for three years.

His reason for the speed violation was interesting. He said his tires were bigger than those that come with the car. He had on 17s (wheels and tires) instead of the standard 15s (wheels and tires). This caused his speedometer to be inaccurate and unreliable.

So he takes pictures of the tires, gets info on online, writes a detailed letter to the District Attorney, took a lot of time and work, IMO.

DA writes back with a small reduction. He then calls me.

First mistake: tires (wheels) being too big or too small is NOT a good legal defense. WHY?

Because, speeding is not an intent crime. An intent crime requires a mental state, ie. that you intended to commit. We call that legally a "Mens Rea." In Latin, a guilty mind. For example, if your kid accidentally pockets some gum at the cash register while you are leaving a store that is NOT petty larceny. Why? Because you did not intend to steal that gum. Now if you told your kid to secretly take gum as you were leaving the store, and he put it in his pocket, then that is petty larceny (plus a whole bunch more).

With the violation of speeding, you are either speeding or NOT speeding. Exceeding the limit or NOT exceeding the limit. There is NO guilty mind requirement. Now there are the legal defenses of necessity to speeding, like your wife was in labor, or you were bleeding, or you were having a heart attack. There are also issues (factual defenses) with radar/laser and the technology of measuring speed whether by a device or a visual estimation. Those could be factually challenged in Court by cross examining the officer.

KEY Takeaway: There are always potential Factual challenges (did this happen) and Legal challenges (did the government act outside of their authority).

Second mistake: He never requested (demanded) a supporting deposition. 

This is a sworn statement by the officer, trooper, or deputy that states under oath the probable cause for the citation. They (the Court/law enforcement) must supply one (upon a written demand) within 30 days time or you can motion the Court for a complete dismissal of the charges. In this case he never received one, and he never demanded one. This would have been a KEY Legal Challenge in this case.

Third mistake: He never obtained or gave his driving record (history) as a reason for a reduction.

This is called an equity argument. To be reasonable or have anyone be reasonable, you need "REASONS." People want to know WHY? Why should you get something? Why should you be compensated? Why do you deserve leniency? Why should the Judge give you a lower fine? Or Why should he agree to a reduction? Seems simple enough. The funny thing is that it doesn't end there because how you present information is an art form.

So there are three things here: LEGAL, FACTUAL, AND EQUITY ARGUMENTS. These are part of the lawyer's tool box.

Law Practice (and many other professions) is both an Art and a Science

Trust me when I tell you I have tried to save people time and money by having them do it themselves and they invariably mess it up. I recently had a professor go into Court (by himself) on a simple traffic ticket. I gave him some free advice. I don't know if it was his attitude or something else but he could not "close" the Judge. Judges have to agree along with DAs to reductions (changes). He then turned around and blamed me.

In other words, he went in like I told him, I guess he said what I told him? but I don't know if he came across cocky or arrogant but he couldn't get anything reduced or changed. Yes, often a familiar and trusted (or at least respected) legal face can get done what you cannot. That's why I hate giving Free Advice.

Persuasion is less the words than the form. Just Saying I love You, and being sincere (and meaning it) are two entirely different things. Convincing a Judge and/or a Jury is much more than words. Sometimes the plumber or contractor can turn the wrench one less turn or add something (from their experience) that you cannot, that is the way of the world, not always fair but often true. DIY law is a play at your own risk game.

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

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

http://www.ithacadwi.com

Ithaca Lawyer Tells Skunk Tales

You may not think that living in Ithaca, NY would expose you to a host of wildlife but it has. Believe it or not since this city boy has been upstate I have had many run-ins of the animal variety. In six years time I have killed Bats (see my blog on the B.A.T.) aka "breath alcohol test," Hit a deer, been stopped on the highway by wild Turkeys, and this morning went face to face or "mano a mano" with a Skunk.

It's 5:30am, and this skunk was ravaging through my trash. I banged on the back door, and he just turned to look up. Looked straight at me, no fear, not a flinch. Then he went back to eating. Brazen little ,,,, I thought, I banged again, he then turned his back towards me, and I saw the puckering. I though uh oh, this is not going to end well, so I backed off, I waited, I banged again and yelled. He then just turned, and casually walked away.

I thought dealing with that skunk is kinda like law. Sometimes you bang a little, yell a little, with words, motions, and hearings (challenges/postures) and then you wait. People back off, think it through, and then a compromise is reached.

Getting sprayed by that potent, noxious skunk juice wouldn't kill ya but it most certainly wouldn't be fun either. The skunk just wants to eat something.

Everybody wants something. They may not get all of it, in fact they may be satisfied with just some of it. I guess the key very often is discovering that place in the center. The place where everyone can live.  Yeah that skunk made me think that yelling and banging need balance too, and just maybe I'm a better lawyer because of it.

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

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

At the Speed of Court or How Long Things Take

In my duties as a lawyer I am often asked the common question:

How long is this thing (this legal thing) gonna take?

My quick answer "it depends" which (by the way) is an answer that they teach over and over in law school. To give an accurate answer we would need to know a great many things, some of them not even legal. The timing of civil and criminal matters hinge on knowing more than just the facts of a case.

1. What is the Judge's, the Court's, and the Prosecutor's schedule.

Are any of them taking a break or on a vacation or going to a seminar? Some Judges take month long breaks in the summertime, some Courts are only part-time (once per week), and some Prosecutors (Assistant District Attorneys) only make a monthly appearance in various courts. City Courts are generally much faster than a town or a village court because they are full time Courts with lawyer Judges. Think about this, What could take a few days or weeks in the City could take months in the country.

2. Is your case or situation going to require motions, hearings, and potentially a trial?

There are generally two main tracks: trial and non-trial (plea). I like to also consider a third track, can I get leverage by use of motions or hearings to persuade a more favorable plea. How long will it take to file the motions? Then every motion requires time for a response by the Judge. Kinda like a big ping pong game accept the time between the ball's motion is delayed by weeks to months. Some Judges even have hearings to decide if we are going to have a hearing and to decide the extent and the scope of those hearings, whew! It can go on and on.

3. Is this a County District Attorney that gives full discovery and early?

You don't really appreciate the strengths and weaknesses of a criminal case until you have everything the government plans to use against you. The trouble is that in some counties throughout the state of New York the DAs are less open with their files. Is this legal? Yes. They do not have to reveal their whole case (all the evidence) until late in the game. Some have given me police reports at the hearing, just prior to police testimony, talk about working on the fly.

4. What type of case is it, and how are they normally handled in this area?

If you know the history of an area (county, city, town) legally you are better prepared to deal with a future issue. That is why people asking me a question about an Albany case or a Brooklyn case are not figuring in this huge and important factor. If you are not conversant with the location, ie. you're not from around here?, then you my friend are at a disadvantage. You don't know what that ADA does, or Judge, or what's usual for this area.

Knowing the answers to the above questions places an attorney in a better position to answer the question how long is this thing going to take. Every one of the above factors or how to best circumnavigate them can mean the difference not only in the result but also in the timing.

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

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

Holding it Against YOU: Understanding NYS Speeding & Traffic Tickets, Points, and Time Frames

I look forward to Summer in Ithaca, NY for a number of reasons:

1. The weather in May, June, and July are a sharp respite from our brutally cold, and sometimes icy  winters. Although this year we were lucky, with minimal snow, and only a short number of gloom days. The northeastern seaboard got bombed while we got hardly anything.

2. The town and city of Ithaca go into summer mode. More tourists, festivals, and out of state visitors but much less College traffic and congestion. The population variance is immediately palpable.

This blog post is for those that call me asking, how long will this (tickets, points, violations) stay on my record? 

First, which record? Are we talking about your criminal record or your NYS DMV record?

Second, the better set of questions, the ones they really want to ask but can't really articulate are:


How will this ticket (violation) impact me, my life, my insurance, my license, and in what way (s)?

THE IMPACT of UTT (Uniform Traffic Tickets) and Points

As far as your New York State criminal record is concerned, all misdemeanors and felonies will stay on your permanent record forever (if you were 19 years old or older when committed). Violations are sealed (including traffic tickets) here, except for three:

- DWAI (VTL 1192 (1)) Driving While Your Ability Was Impaired
- Solicitation of Prostitution
- Sexual Solicitation

As far as your NYS DMV record, there are four time frames you should be aware of:

- Drug and alcohol related traffic infractions (VTL 1192 (2) DWI per se BAC .08 or more, VTL 1192 (2) (a) (a) Aggravated DWI per se BAC .18 or more, VTL 1192 (3) DWI common law, VTL 1192 (1) DWAI, DWAI drugs, DWAI drugs and alcohol) All stay on your DMV record for 10 YEARS.


- Violations/traffic infractions (not related to drugs or alcohol) stay on your NYS DMV record for 4 YEARS.


- All traffic violations (including alcohol and drug related) can be held against you by NYS insurance carriers (under NYS law) for 3 YEARS.


- All traffic violations which carry points or the potential for suspension and /or revocation of license privileges (speeds, following too closely, etc.) have an 18 Month look back period. 

btw:
Everyone who has infractions in NYS will have them on their NYS DMV record. This is regardless of whether they hold residency in NYS or anyplace else. Canada (in particular Quebec and Ontario) have a tit for tat (point for point) with NYS, except for our lowest level speeds (that fall below the Canadian kilometers level).

Not everything is cut and dried so to speak. There is more to know depending upon your specific situation, types of traffic infractions, Court, County, Judge, and your prior record.

What about if you are from out of town? What about if you are from out of the country? What about if you just changed licenses? What about if you plan on moving and changing licenses?

Always best to (at the very least) consult with an attorney, maybe you don't need to retain one? This is not so much to always get an answer but sometimes just maybe to ask "the right or better" question?

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

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY

607-229-5184
http://www.ithacadwi.com

Cortland Lawyer Explains NY Legal Success versus Legal Failure

People love to throw around words. Sometimes it is not intentional but they don't always mean what they say or say what they mean. I use words and language to serve my clients. It helps to explain things in terms most suitable for the situation and my client's perspective.

In a personal injury case the term disabled is way different word than word impaired. Yet people use these words unknowingly. Both can be temporary or permanent, both can be whole or partial, but they are worlds apart in terms of monetary value or case impact. btw disabled relates to a "job," impaired relates to a "part of the body" or a "function."

1. Success and Failure are Judgments

Whether someone or something is a success depends on how you define it. I always get results. I like to say it is a good result or a bad result based upon the total picture. If my client receives their due based upon their injuries, the impact to their life, and the type of accident (in a particular location) then it is a good result in my opinion.

Results have to take into consideration their age, their job, their liability, and their location. Notice that I used the word "their" because injuries are unique to every individual. Do not compare a Brooklyn bus case with one in upstate New York, they are two different animals.

2. Time and Money are Interrelated (they both have value)

People want results now. They would rather have a bird in the hand than two in the bush. Is waiting going to result in more? Or is waiting going to result in a little extra benefit? Yes, time has a value in regards to money. Money is time and time is money. Having a fast and complete closure of a legal issue can be of great value. This is true in injury cases and this can also be true in criminal cases. Spending more time and more money don't always yield a better result. In fact, prolonging the agony of waiting is not what many of us want.

Waiting may be in your best interest financially, but is it what you want to do?
Going to trial may also be in your best legal interest, but do you want to take that risk? Do you want to spend that time? Do you want to go through that emotional roller coaster?

3. Best for YOU Should Be Best for Your Advisor/Lawyer/Counselor

Conflicts of interest bother me. If someone has a stake in any outcome it may influence their decisions. Your attorney should always be looking out for what YOU want. What are YOUR goals? They may not fit in with the goals or the desires of your attorney. Lawyers are supposed to put aside their own biases, and conflicts. That is why under the ethical and professional codes of conduct they have to remain neutral, work for you, and pace themselves in a fiduciary capacity.

A fiduciary is one that has Fidelity (from the latin Fe) to you. Faith in you, allegiance to you, and place nothing in between that. We should expect that of our professional advisors.

Dr. Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

http://www.ithacainjurylawyer.com

607-229-5184