The Proof is in the DWI Pudding or Can They Prove Your Guilt?

Working backwards from the goal is the most effective way
to long term success

BEGIN WITH THE END IN MIND

I always begin my legal research on any case (a set of criminal charges against my client) with the end in mind. The government and their lawyers (the prosecutors) have the burden of proof. In other words they are on the offensive. They must move the ball to the end zone. I play defense. They must make all their proof of the crime beyond a reasonable doubt in the minds of the jury.

The first thing I do is look at the Set of Specific Jury Instructions for that Charge.

This set of directions is what the Judge will specifically tell, instruct, and order the Jury to do. It is crucial to to form my defense step by step against the prosecution's case.

The second thing I do is study cases and case law that may show fact patterns similiar to my client's situation. These usually demonstrate how the Courts have ruled on similiar evidence (the proof).

The expression “the proof is in the pudding” has been around for hundreds of years. It is a metaphor that means "only believe things that can be proven." Juries should never make assumptions or believe what they are told without something more. That something more is making the facts apply to a clearly defined law and set of rules.

Every criminal charge has things (called elements) to be proven. The jury acts as a “fact finder” in this role. They are given the law and the rules of proof to be applied to these set of facts by the Judge.

What the Judge gives the Jury is a set or sets of instructions. A determination of Guilty or Not Guilty of a criminal charge hinges on the Jury’s understanding and application of the Jury Instructions.

AGGRAVATED UNLICENSED OPERATION New York AUO 3RD 

Various criminal charges have different sets of instructions that the Jury must follow.
For example, the criminal charge of Aggravated Unlicensed Operation of a Motor Vehicle in the 3rd Degree, a Class A Misdemeanor. Vehicle and Traffic Law section 511 (1)(a).

The Jury Instruction is as follows:

In order for you (the Jury) to find the defendant (the accused) guilty of this crime, the People (the Prosecution/the Government) are required to prove, from all the evidence in the case beyond a reasonable doubt, each of the following two elements:

1. That on or about (date), in the county of (county), the defendant operated a motor vehicle on a public highway; and

2. That the defendant did so while knowing or having reason to know that his/her license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked, or otherwise withdrawn by the commissioner.

Therefore, if you find that the People (the Prosecution/the Government) have proven beyond a reasonable doubt both of these elements, you must find the defendant guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.

On the other hand, if you find that the People (the Prosecution/the Government) have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree as charged.


The crucial element that the Prosecutor must prove is that you had knowledge that your license or privilege was suspended, revoked, or withdrawn.

The key question in the case is:

Did you know or have a reason to know you were driving without a license or privilege?

There are various ways that the prosecution can prove their case which are all fact dependent. If you lost your New York driving privileges or your license was taken by a Judge at a hearing it will be hard to argue you did not know you did not have a license or permission to drive a car.

On the other hand, what if there is proof (you changed addresses, you had mail problems) that you never received any notice (a letter) from the Court or the New York DMV of a license suspension due to an unpaid ticket, unpaid fine, or a failure to pay a reactivation fee? That argument may be accepted by a Jury as reasonable doubt of your lack of knowledge or having reason to know of your license suspension.

Ultimately the proof in every case is dependent upon what can be shown to the Jury. Criminal defense attorneys not only work with the facts that are visible, but seek out the invisible but discoverable facts that can help a client’s case. The goal is to show that the facts presented by the prosecution are unclear, conflicting, and do not prove the elements of the crime beyond a reasonable doubt. Juries need to be shown common sense reasons to find doubt within the Government’s proof. Afterall, remember that it is always the Government’s burden, not yours, to prove every element of your legal guilt to the standard of beyond a reasonable doubt.

The 9 Most FAQ About NY DWI, here:

http://www.scribd.com/doc/57124346/9-Most-FAQ-About-a-NY-DWI

The New York Up State DWI Survival Guide, here:

http://www.ithacadwi.com/NY_DWI_Survival_Guide_2012__fingerlakes.pdf

Winning The NYS DWI Refusal Case, here:

http://dwicom1.wpengine.netdna-cdn.com/files/2013/10/1294-HowtoWintheNewYorkDWIRefusalCase.pdf

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 550 blog posts, dozens of articles, and over 520 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Ithaca Lawyer How The New York DMV finally enters 2009! Online Defensive Driving Course

I sometimes get excited about little things. Through the passage of time I have witnessed a revolution and evolution in the way law is practiced. When I practiced law in Philadelphia in the 1990s the Courts downtown were still requiring some Complaints (lawsuit) to be "typed" (they supplied old typewriters), and handed in with "carbon" based copies. In the early part of 2001 Philly was only one of a few PA cities that were beginning to process requests for police reports, and the filing of small claims with an online website.

One of the great things about Ithaca, NY is our DMV is small, fast, and relatively quiet. Compared to most big city DMVs it is practical (nice parking) and easy to get in and out of. On most days I can walk in and request a DMV driving abstract for one of my clients, and walk out with one in minutes. So why am I excited today? The NY DMV has finally approved the use of Online Driver Improvement Courses to reduce points and insurance costs. It only took till this year for the NY DMV to enter cyberspace with approved online driver improvement courses when we have been having online degrees for College diplomas for almost two decades. The University of Phoenix has offered online degrees since 1989.

I-PIRP is the acronym for Internet/Alternative Delivery Method Point and Insurance Reduction Program. They also have approved other ADM (Alternative Delivery Methods) such as courses utilizing DVDs, CDs, Video, and Cable.

I checked out the four Internet based and approved DMV course providers.

www.NewYorkSafetyCouncil.com

Cost $48.95, no mention of discounts for students, very basic "chunky" website, this is probably the lowest tech site of the four.

www.MyimprovNewYork.com

Cost $37.95, this one gets my vote for fun and funny, jokes, video, and easy to view website.
Check out this corny joke from my Improv, "S.T.O.P. stands for Slow to Observe Police"
This course is formatted for a 5th grade reading level so you will not be too mentally challenged.

www.idrivesafely.com/NY

Cost $48.95, more advanced website than NY safety council, but still compared to My Improv NY very boring! These courses are all 320 minutes in length, so for 5+ hours boring is not fun!

www.NewYorkDefensiveDriving.com

Cost $49.95 but discounts for seniors, students, military personnel, and Veterans. Very content laden, educational, and easy to use website.

So NOW you can finally spend under $40, and five hours of your life in the comfort of your home to do two important things:

1. Receive a benefit of a 4-point reduction on your NY driving record. See Below for clarification.

2. Receive a 10% insurance discount on your New York auto insurance rates.

Once you complete one of the approved programs (whether class based or I-PIRP) you will receive a certificate and a notice which will then be entered on your DMV driving record, and the DMV computer will automatically reduce your active point total by up to four points.

It is Important to remember that the completion of a course under the
I-PIRP "Internet Point & Insurance Reduction Program" or the class based program does NOT remove, delete, subtract, or erase any violation, conviction, or notice of original number of points from your driving record.

Even after you complete the course, most violations, conviction and points assessed will continue to show on your driving record for up to four years. Violations and convictions involving drugs or alcohol will remain on your driving record for ten years. "Point reduction" only means that the New York DMV will not count up to four points on your driving record toward license revocation or suspension.

Defeating Ithaca DWI BATs: Breath Alcohol Tests

At a Draeger Alcotest Seminar 

The Machine Loved by NYS State Police

This past Memorial Day weekend was exciting in many unexpected ways. My family and I live in an big, old Victorian house built around 1889. It has a certain charm or charms about it. Tin ceilings, beautiful wood triple moldings around everything, floor to ceiling windows abound... I guess it makes me long for a time when people enjoyed alittle more and savored details. To balance things out, it lacks many modern amenities like a master bath, central air, bedroom closets, or a usable garage.

Our home is also conveniently located two blocks from the Courthouses in Ithaca, NY. I have a home/office combo because the house is huge, and I am beyond the need for a traditional office in my untraditional life and lifestyle. I am not a bricks and mortar type of lawyer. All of my bar and college diplomas sit in my basement. I have doctorate degrees in Chiropractic, as well as law, and am a member of the PA, NY, NJ, and FL bars but I do not feel the need to display my credentials upon a wall. I moved to Ithaca three years ago to specifically abandon my bluetooth, my offices, and sitting in my car for hours in traffic. I wanted away from the big cities with all the honking, parking, driving, and pollution issues. My iphone keeps me in touch with faxes, emails, texts, the internet, and all phone calls. I am in a word "connected" to people and a world of information. My clients can have all my numbers because they will talk directly to me. I focus my practice on the defense of DWI because it allows me the time and energy to devote my attention and commitment to a smaller amount of cases. My philosophy of Quality over Quantity rules my life and practice.

I walk alot now. I can actually name alot of flowers and birds. My lawyer and doctor friends from college think I should get a psych eval.

BATS: They are big and nasty, like flying rats
from mysciencework.com

Anyway, last week I had an exterminator treat our home for wasps and bees. That night I saw my first bat flying in my living room. My wife and kids freaked out. I did not want to (it would not leave through an open window) but I had to kill it. The next morning we awoke to two more bats. Bats are like flying rats. My wife left the house that morning to go outside and run . As leaving she said she was not coming back until "they" were gone. I thought on that one for awhile, and decided that I did want my wife to come back. So after many calls to wildlife removers on a memorial weekend Saturday went nowhere, I suited up in my bat gear. On went my gardening gloves, long sleeves, baseball hat, my weapons of choice: a tennis racket, and a broom. I proceeded to kill and squash two more bats. Which brings me to today's blog....

The Breath Alcohol Test

How do we attack and kill a real B.A.T.????

Alvin Toffler said, "The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn and relearn".

I think Toffler had it right. I am constantly learning, unlearning, and relearning. The best analogy for attacking the BAT was given to me by an expert in the field, Jan Semenoff. When I attended his seminar on Breath Alcohol Testing he likened the breath testing process like spokes on a wheel and the result (the number), the BAC, the bullseye in the middle. The spokes support the hub, the target number, they give it validity:

A Maintenance Spoke- was the machine properly and regularly performed?
A Calibration Spoke- was the machine calibrated, when was it calibrated, and how was it calibrated?
A quality control Spoke- was the simulation solution in the machine changed and when?
A training Spoke- was the operator of the machine trained and currently licensed?
A Procedure Spoke- were proper machine procedures followed?
A Operator Error Spoke- Did the operator of the machine make any mistakes?
A Operator Malfeasance Spoke- Was the operator's intent to be accurate in question?
A Sampling Error Spoke-Was the breath sample proper in space and time?
A Radio Interference Spoke- Was there any Radio Frequency Inter. present during testing?

Additional Spokes in our wheel analogy are:

A hardware design Spoke-
A software design Spoke-
A Environmental Factor Spoke-
A External Verification Spoke-
A Accuracy Spoke-
A Precision Spoke-
A Specificity Spoke-

If we can break the "spokes" of the machine's support wheel, if we can loosen them, if we can damage them, or if we can get rid of a few of them the wheel will fall apart. The machine (the wheel of validity) no longer has all it's supports. The breath alcohol number, the final result, the bullseye, the target BAC (breath alcohol test result) which points to legal guilt is now compromised, it is now debatable, it now an uncertain number, it is no longer a number "beyond a reasonable doubt." The BAT is then dead, and can no longer hurt us.

The 9 Most FAQ About NY DWI, here:

http://www.scribd.com/doc/57124346/9-Most-FAQ-About-a-NY-DWI

The New York Up State DWI Survival Guide, here:

http://www.ithacadwi.com/NY_DWI_Survival_Guide_2012__fingerlakes.pdf

Winning The NYS DWI Refusal Case, here:

http://dwicom1.wpengine.netdna-cdn.com/files/2013/10/1294-HowtoWintheNewYorkDWIRefusalCase.pdf

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 550 blog posts, dozens of articles, and over 520 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Convicted of DWI: Your Career Options May Not Include Barber, Boxer, or Bingo Operator

A Barber's License may be harder than you think
from the rawtable.com

I am often asked by my clients what a criminal conviction to a DWI or other misdemeanor will mean to their future job prospects in New York State. I am proudly a native New Yorker, Brooklyn born, raised, and a graduate of the School of Hard Knocks. Although, I now enjoy the practice of criminal defense law in beautiful and picturesque Ithaca, NY.

The more I learn of the legal quirkiness inherent in the New York laws I shudder and chuckle. My blog today centers on how a prior criminal convictions can affect the application for a professional license in New York State.

"Discretionary" Licensure Under NYS Law

A Barber's license, Boxer's license, and Check Cashier license are all discretionary in NYS. For a Boxer or Wrestler or Check Cashier making application for a NY license that means they may be refused a license (a permission) to box or wrestle or cash checks professionally if the applicant has been convicted of a crime or is consorting with anyone convicted of a crime. Consorting is defined as to keep company or associate with. NYS is mindful of those you choose to hang out with. Your friends may cost you a license.

For those holding a Barber's license, any crime or offense involving moral turpitude or for habitual substance abuse can trigger a suspension or revocation of that license.

Bingo Operators and Distributors are barred a NYS license for a conviction for any crime under Executive Law section 435 (2)(c)(l).

Licensed Electricians can have their ability to earn a living supended or revoked if convicted of a crime under NYC Admin Code section 27-3016 (1)(vii).

Interestingly Licensed Plumbers face no such restrictions.

Sanitation Workers may be punished or dismissed for conviction of any legal offense, conduct injurious to public peace or welfare, or immoral conduct under NYC Admin Code section 16-106. In NYS the unlawful possession of marijuana (UPM) is considered an offense, so technically speaking you could lose your job as a garbage man for having a joint.

Which brings me to the GOOD NEWS, to the many professional occupations in which a criminal misdemeanor conviction pose NO restrictions to obtaining a NYS license:

You can rest easy knowing you can be an Accountant (CPA), Acupuncturist, Architect, Attorney, Baby Chick Seller, Chiropractor, Controlled Substance Manufacturer, Dental Hygienist, Dentist, Deputy Sheriff, Engineer, Insurance Securities, Midwife, Nurse, Nutritionist, Occupational Therapist, Optometrist, Pharmacist, Physical Therapist, Physician, Physician's Assistant, Podiatrist, Psychologist, Securities Broker, Social Worker, Speech Pathologist, Teacher, or Veterinarian with a criminal conviction on your record.

To all those with dreams of being a Professional Bingo Operator, Boxer, or Barber I promise to do my best to fight whatever charges loom against you in the future. In the meantime, take a deep breath and realize the world of possibilities for future NYS licensure in so many wonderful professions will not be impacted by a misdemeanor DWI or other criminal conviction.

The 9 Most FAQ About NY DWI, here:

http://www.scribd.com/doc/57124346/9-Most-FAQ-About-a-NY-DWI

The New York Up State DWI Survival Guide, here:

http://www.ithacadwi.com/NY_DWI_Survival_Guide_2012__fingerlakes.pdf

Winning The NYS DWI Refusal Case, here:

http://dwicom1.wpengine.netdna-cdn.com/files/2013/10/1294-HowtoWintheNewYorkDWIRefusalCase.pdf

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 550 blog posts, dozens of articles, and over 520 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

The Student's Dilemma ... The Crime of AUO- Aggravated Unlicensed Operation 3rd

Tickets, Court Papers, and Letters from the
DMV Can ALL Get Lost in the Move 
from my footpath.com

One of the most common phone calls I receive is for representation on AUO charges. Often people do not know why they were arrested for this charge. Yes, I said, arrested at roadside. Imagine you think you are just getting a speeding ticket and then Wham, an AUO 3rd.

Under New York Motor Vehicle and Traffic Law section 511, Aggravated Unlicensed Operation in the third degree (AUO 3rd) is classified as a misdemeanor, a crime punishable by up to 30 days in jail, up to $500.00 in fines, mandatory State Court surcharges, and points against your driving record.

Ithaca College and Cornell Students frequently change addresses over the course of their many years of study. These changes in living arrangements may cause them to miss, lose, or misplace their mail. Moving residences also mean lots of boxes of papers, mixing of documents, and resulting confusion. Within the ensuing melee, things like DMV papers, and speeding tickets may be misplaced or forgotten.

btw You must notify the New York DMV of any permanent changes in your address within 10 days of moving.

SEE NY DMV website:

You must notify the DMV when you move to a new address.
• You have a maximum of 10 days after you move to notify the DMV.
• You must report the change of address at a DMV office, by phone, or by mail. You cannot report a change of address by e-mail.
• You cannot change your address when you complete a transaction on-line.

Unfortunately, when you were pulled over (stopped) for some other violation, commonly speeding, or possibly an equipment violation, and then come to find out that your driver's license is also suspended or revoked it may be a shock to be arrested.

Maybe it was because a ticket from years earlier was never paid, or worse a town or village Court clerk never sent the proper paperwork to the DMV.

Whatever the reason behind the charge, it must be dealt with immediately. If you accrue more than one charge of AUO (aggravated unlicensed operation) the fines and penalties increase dramatically, all the way to a Felony AUO 1st, which has a very real potential for jail time.

In the majority of cases I am able to figure out the underlying suspension issues, rectify them with these town or village Courts, request for the Court to allow time to clean the driver's DMV abstract, and then negotiate a non-criminal disposition (usually a violation) with the prosecutor.

Depending upon the underlying driving history this process can range from a few Court appearances to many court appearances.

I had one Cornell graduate student as a AUO client with outstanding fines in three different Courts, hundreds of miles apart, and over a 3 year period of time. In this particular case his roomates never forwarded his mail. Speeding tickets over this long time period all got lost. It took me four months, a dozen letters, and numerous calls and faxes before I was able to help him clear and negotiate all his old charges, and resolve the AUO 3rd charge with a simple traffic violation. His Cornell graduate degree notwithstanding he was infinitely more employable with a valid driver's license.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 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. 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

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

The Effect of Drug Convictions on Student Financial Aid (FAFSA)

Practicing criminal defense law in Ithaca, NY brings a specific student focus to many legal issues. Many Cornell University and Ithaca College students receive financial aid in various forms. Concerns over the affect that a conviction of any type could have on their current lifestyle, future plans, and career prospects are always at the forefront of any legal consultation.

Most students are unaware that any conviction for the sale or possession of illegal drugs leads to some harsh collateral consequences.

President Clinton originally signed the legislation that amended Higher Education Act (H.R. 6) which mandated that "A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any federal grant, loan, or work study program." This was amended in 2006 to block eligibility for Federal financial aid only when the offense occurred during the period of time when the student was receiving aid.

The controlling law is 20 U.S.C. section 1091 (r) (1) which suspends eligibility for any federal grant, federal loan, or federal work study financial assistance for students convicted of any offense under State or Federal law involving the possession or the sale of a controlled substance.

The suspension of eligibility for Federal financial aid begins on the date of the conviction and ends as follows:

for Possession of a Controlled Substance 1st offense: 1 year
for Possession of a Controlled Substance 2nd offense: 2 years
for Possession of a Controlled Substance 3rd offense: Indefinite

for Sale of a C.S. !st Offense or 2nd Offense: 2 years
for Sale of a C.S. 3rd Offense: Indefinite

The use of marijuana in Ithaca is ubiquitous. Pot is not considered or recognized by many people as a controlled substance or illegal drug. There are many "head" shops in the downtown Ithaca Commons which sell pipes, bongs, and other smoking paraphenalia.

Of important NOTE to college students is the fact that a conviction for the Unlawful Possession of Marijuana, (UPM) PL 221.05 will result in a period of ineligibility for any Federal financial aid.

UPM is for possession of less than 25 grams (about 7/8 of an ounce) of marijuana. In contrast, the Criminal Possession of Marijuana (Penal law 221.10), a B misdemeanor, is where the amount is over 25 grams but less than 2 ounces OR where posession is in a public place where the marijuana is burning or open to public view.

How is it possible that your Federal financial aid will be affected by the possession of one unlit joint?

UPM is considered just a violation in New York State, and is not a classified misdemeanor (a crime). Even so, Section 1091 was specifically written to include any offense language (thanks to former President Clinton) which does not necessarily imply a crime, and the Unlawful Possession of Marijuana, PL 221.05 is considered such an offense, and Marijuana is a listed controlled substance under 21 U.S.C. section 802 (6).

So what remedies are available to convicted students?

They can complete a drug rehabilitation program to regain eligibility. This program must comply with criteria set out by the Secretary of Education by (1) being qualified to receive funds from Federal, state, or local government, or from a Federally or state licensed insurance company OR (2) be administered or recognized by a Federal, state, or local government agency or Court, or a Federally or state licensed hospital, health clinic, medical doctor AND
(3) must include two unannounced drug tests.

Of course, the best solution is not to have a UPM conviction in the first place by hiring a competent and knowledgeable lawyer to represent your interests immediately. A Unlawful Possession of Marijuana (UPM offense), and the Criminal Possession of Marijuana (Class B misdemeanor) charges can usually be resolved with a non criminal deposition which will not affect your Federal financial aid.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 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. 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

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

Understanding Alcohol in Ithaca DWI Cases

Beer's Law

Beer Law #1 Beer before liquor...get drunk quicker.
Beer Law #2 Beauty is in the eye of the beer holder.
Beer Law #3 One beer, two beer, three beer, four
five beer, six beer, seven beer ... floor.


I have read many police reports, and often people stopped for a DWI are asked, "How many drinks have you had tonight?" Usually the answer is two. For some strange reason it is seen as an appropriate amount of consumption, as in, I only had two, or two is less than three but a little more than one. Two just makes sense.

"Drunk Words are Sober Thoughts"

So it would appear that two drinks would be a reasonable amount of alcohol most people would have with dinner or chatting with friends over a two to three hour time period. The problem lies in that after a stop and arrest for a DWI, and an eventual taking of the breath test, accurately called the chemical test, the breathalyzer, the Datamaster DMT in Ithaca, NY, the machine may read (display) a much higher number. They may have a BAC (blood alcohol concentration) of .12, .15, or even as high as .18, which by the way is an Aggravated DWI. Without more information about the night, their eating, their unique body mass, their weight, their alcohol consumption, as well as other factors I can not tell if the machine is accurate, there was operator error, or there was machine error.

Are all these people lying when they say they only had two drinks or are other factors at work?
Former President Bill Clinton most famously captured the essence of properly answering a hard question. When asked under oath whether he had sex with Monica Lewinsky he replied, "I did not have sex with that woman." He then went on to explain that his definition of sex, and the rest of the world's might be at odds.

Any question must not be answered until we define the words or the terms used in that question. Getting back to our drink question, first we must define what is a "Standard Drink."

So what makes a standard drink? 

I recently went out with friends and they each ordered martinis. Their huge martini glasses must have had four to five shots (pours) of gin each. Each of their Appletinis had the equivalent alcohol of 4-5 standard drinks. In essence, the two cocktails they drank, was as if they each had consumed 8 -10 beers or 8-10 glasses of wine in a two hour time period. Combined with the fact we only had appetizers, they were each easily in the .08 to .10 BAC range.

So when I look at a client's drink consumption to determine accuracy of the BAC in a DWI case I need to also look at type of drinks, size of drinks, ethanol concentrations of those drinks, and of course the individual's familiarity (yes generally people who are used to drinking process ethanol more efficiently) with alcohol consumption.

Regular drinkers develop more of a hormone called ADH (alcohol dehydrogenases) which breaks down ethanol into acetic acid (vinegar) which is why you literally get pickled with too much alcohol consumption. That is also why some ethic groups genetically (produce less ADH) and therefore do not have the ability to process ethanol as efficiently, and then get drunk more quickly. There are a host of other factors too numerous to go into in this short blog but in some DWI cases I use an special Excel program to compute an individual BAC at time of arrest.

The following are some standard ethanol concentrations:

Beer can range from 3-6% ethanol
Wine can range from 10-14% ethanol
Sherry can range from 18-20% ethanol
Whiskey can range from 40% ethanol

I need to discover or as I say uncover the "real" world consumption patterns. Real world patterns yield far more accurate and actual BAC determinations.

So the truth may be that my client only had TWO, but two what?

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 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. 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

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

Ithaca DWI Everything I'm Not is EVERYTHING I AM

Everything I Am

"Now everything im not, made me everything i am.

damn, here we go again. people talkin shit, but when the shit hit the fan

everything i'm not, made me everything i am. "

Kayne West

Well last night I had the pleasure to hang out with a bunch of DWI Criminal Defense Lawyers in Manchester, NH. They were fun, and funny as well. We had dinner at a Brazilian Restaurant where they (the Gauchos) bring you skewers of meat. I mean lots of meat: lamb, sirloin, roast, pork, ribs, chicken, sausage, etc. They started out with a Salmon appetizer. Everyone has tongs to grab their meat from the Gauchos. Anyway, drinks and this meatfest brought out the fact that one of the attorneys joked about getting a call from a Powerball Winner. The question asked, "do you practice powerball/financial planning law?" Well quipped the lawyer, "I do now"...

It's a joke amongst lawyers that many do (practice) what makes money in the moment. My business card states: DWI Defense Attorney. I focus, I concentrate my energies there. They asked me whether I had another card that said "Personal Injury Lawyer" and another that said "Powerball Lawyer"...(Now of course I do not) ... in other words was I prepared to take on whatever business came my way? My answer no.

I mainly (primarily) practice what relates to cars and drugs. Plain and simple. I live in Ithaca, NY and Alcohol is a drug, so naturally the majority of my practice is Ithaca DWI Defense, and all other assorted traffic related violations.

Now living in a College town, at the base of Cornell University and Ithaca College brings an assortment of other student related criminal work. I am asked and often agree to take on these criminal matters. What I do not do is as important as what I do do (there is a joke in here somewhere):

I do not practice family law, corporate law, adoptions, wills, trusts, estates, real estate, divorce, landlord tenant matters, medical malpractice, bankruptcy, dog bites or Powerball Winner Law... I think you get my point. I do not take everything that walks in my door or calls on my phone.

My belief is that practicing what you enjoy, what you devote your time and attention to will flourish. This has been true for me. I think you do a great disservice to yourself and others to be and act in a way (render a service) you are not into. It is a fear based paradigm that tries to be all things for all people. I have always refused to buy into that level of thinking.

Kayne could not have said it any better... Everything I'm Not is Everything I am! Nuff said.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 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. 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

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

Fact or Science Fiction?

I am a big Sci-fi movie fan so when the new summer trailers started to appear this winter my heart raced with excitement. I could not wait to see Star Trek, Wolverine, and the upcoming soon to be released Terminator. I enjoyed Star Trek for the first rate performances, dialogue, and special effects but was not overwhelmed by the story. Yeah call me a stickler but ...WARNING SPOILER ... PLOT ALERT... having Young Spock and Old Spock meet up face to face and then lead dual lives (different purposes) in the same time period was a bit much. To me it violated every science fiction rule possible. My boys told me to lighten up, and suspend disbelief, anything is possible, it is fiction.

Which brings me to time travel and criminal defense. Everyone has a story. How things happened, what they saw, the way things went down. Every story comes from a perspective, a vantage point so to speak, and also comes through a set of unique and personal filters.

How we all view the world and things constantly happening around us are different for the teenager versus the senior citizen, different for the conservative versus the liberal, etc. We bring to all of our senses (and sensory inputs) a set of relationships. What we think is big or small, cheap or costly is always based upon comparisons, never is anything decided in a vacuum.

I listen to my clients version of events, then read police reports, gather evidence, visit scenes, and piece together a story. What is the un-biased version? Because every police report and government document is written with a bias. The bias being the crime or crimes charged must be substantiated. They want a conviction. What descriptive words were selected to explain the pre-stop, stop, and probable cause needed for the arrest? What facts were left out of the officer's narrative? Since we do not have a time machine as yet, we can not go back, and re-live the night. We must (as good criminal defense lawyers) detail all the facts, both good and bad to our case, even the ones left out of all the documents. We must draw out with our imagination how the story played out. The more vivid we can make our story for the jury the more likely that our movie will be successful, and well received as the truth. Yes, I believe stories that come alive, make sense, and have depth win the day in Court.

Recently, I had a case where the Police officer wrote conflicting bad facts in his report. Both facts were bad for my client. The first fact he stated was that my client was wobbling and swaying during the HGN (Horizontal Gaze Nystagmus) test. The HGN is supposed to assess BACs above 0.10% and therefore indicate DWI when done properly. His second bad fact he stated in the report was that my client failed the HGN. Now comes the good part, the HGN test requires a fixed head that is not moving. You can not have it both ways Officer!

What are the facts: If the body is swaying and wobbling the head must also be moving (that was not in his report). How can you observe and record the movements of eyeballs under those conditions? How can you estimate angles? Now think of the absurdity of this:

With a pen in one hand, a flashlight in the other hand, at 2:00am, with blue and red lights flashing, with my client swaying and wobbling, the officer is moving the pen side to side, recording and observing eye movements, and scoring this test objectively? Needless to say this case did not go too far.

That is why I laugh when criminal defense attorneys tell me they spent five minutes with a police report, and then give their clients an opinion about their DWI case. I do not speed read police reports or other important discovery documents. That is when slow, careful reading and dissection is required. More importantly, I place the facts into the clear light of day, and within the context of probable cause.

The mental skillset necessary for any good defense attorney are the ability to "read between the lines, find conflicts in the evidence, and to bring the true facts most helpful to our clients to the attention of the Court and most importantly to a Jury."

Getting Breath Test Certified or Being Certifiable.

"The right of one charged with crime to counsel
may not be deemed fundamental and essential
to fair trials in some countries, but it is in ours."
Gideon v. Wainwright, 372 U.S. 335 (1963)

Tomorrow, I am traveling to Manchester, New Hampshire for two seminars being put on by the New Hampshire Association of Criminal Defense Lawyers. They are an Intensive Intoxilyzer Training (DataMaster Training and Certification Course), and A DUI Extravaganza. The quote above comes from their website home page. btw The Datamaster DMT is the Breath Machine used by the Ithaca Police Department, and many other upstate towns.

I am excited to go, and learn more about these machines. This morning I attended the Ithaca Court Pre-trial Conferences, (a PTC is a meeting between the defense attorney, prosecutor, and the Judge to see where the cases are headed ie. trial or plea). It is also a time to catch up with friends, share stories, and have some general camadarie.

I tried to share my enthusiasm over my pending trip with my fellow lawyers. They didn't get it! They could not understand why I was flying to Manchester, NH for four days for these seminars, but then again they do not get worked up over DWI defense. For many law practice is a job, is drudgery (as in Webster's: dull, irksome, fatiguing work, uninspired and menial labor) How sad is that! I have been inspired in and by both my careers (the first as a chiropractic physician and the second as a trial attorney). I am almost as excited about these seminars as I was to see Wolverine and Star Trek, but I'll save that for another blog.

You see I feel that the key to alot of DWI cases, is and has always been putting "THE MACHINE" on trial. This George Orwellian Machine that spits out a number, and casts a verdict of guilty. It insults my scientific background (yes, I have a BS in Human Biology) to have this mere "screening" device placed on a pedestal by the government, and their attorneys.

Anyway, I am off to become trained and "Certified" as a Breath Test Technician as by the Authority (I feel like Cartman with that word) of the US DOT (Department of Transportation). I already told my wife how lucky she will be to sleep with a "Certified" Breath Test guy upon my return. She is still laughing.

Why get certified? Why go to training? Why spend $2,500.00 + (seminar: $1650.00, air: $330.00, Hotel: $400.00, my growth and knowledge: Priceless), Why leave my family and practice for four days?

I'll tell you why.

This is from their brochure http://www.itd2.com/ :

"You need to understand the science and technology behind breath alcohol testing in order to offer your clients the best possible defense."

These are some of the Course Topics:

-Complete information on instrument operation, maintenance, and calibration
-Component systems of breath testing instruments-complete knowledge on how they work, and what can go wrong.
-Specificity of Breath Test Measurements
-Accuracy of testing procedures
-Pharmacology of alcohol absorption, distribution, metabolization, and elimination
-Learn to conduct a more thorough examination of breath alcohol testing procedures
-Become Certified in the operation of various breath testing devices

So you can see why I'd be amped about learning. I love to challenge authority, and the best way I know of doing just that is by being an authority.

Stop the MADDness!

Today is mom's day, and a good reminder for me to be thankful to all mothers. Just so the record is clear, I am not "for" drunk driving. I do not want people out on the roads driving their cars wasted. I also feel that the original intent behind MADD (Mothers Against Drunk Driving) has somehow been lost to a zealous political group who want to have no drinking and driving.

MADD wants ignition interlock devices installed on ALL cars. These costly and ineffective breathalyzers would be on every new car manufactured for use in the 50 states. MADD feels that this will eliminate the DWI/DUI problem in the United States. I feel this is a mistake. Long term studies have shown that putting these devices on cars for DWI convictions instead of giving offenders long term license suspensions with conditional privileges is more hazardous (causes more accidents) in the long run.

It is also true that three of MADD’s six most generous contributors are Generals Motors, Ford and Toyota. Talk about a conflict of interest. More about the inaccuracy and unreliability of Ignition Interlocks in future posts but for now be aware of this Maddness!

New York Law and Reckless Endangerment

People are often surprised that we have crimes for conduct in which no one has been hurt or injured. They are quick to point out, well ... "no one got hurt so what did I do that was so wrong?"

It is the potential of substantial harm and risk that was created. One of these crimes is called "Reckless Endangerment." Sometimes it is included along (as an additional charge) with a charge of DWI, when the driver has a child in the car. Other real life practice examples:

1. throwing snowballs at moving cars
2. tossing furniture out of an apartment window
2. shooting off paint guns in your backyard (residential area with children present)
3. discharging your handgun into Lake Cayuga while drinking beer
4. high speed driving

S 120.20 Reckless endangerment in the second degree.

A person is guilty of reckless endangerment in the second degree when
he or she recklessly engages in conduct which creates a substantial risk of
serious physical injury to another person.

Reckless endangerment in the second degree is a class A misdemeanor.


The mental state needed for “reckless” is defined in Penal Law §15.05(3)

“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.”


The phrase “serious physical Injury” is defined in Penal Law §10.00(10) as

“… physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ”.

Do not take the charge of reckless endangerment lightly. It is considered a serious legal infraction and prosecutors are remiss to blow it off to mere stupidity. They fear continued actions of a like nature (a course of conduct without forethought) could in fact lead to someone suffering a lifetime permanent injury or death. They or the Court may seek a cause for the behavior. They may demand a mental health screen or a drug evaluation before a final disposition of the charge.

Is Pleaing to a Violation a Good Outcome?

I live and practice criminal defense law with an DWI (Drunk Driving) emphasis in Ithaca, NY.
Because of my daily involvement with the local Courts I am often called on legal matters relating to College behavior. Some might call it hijinks (merrymaking), or shenanigans (according to Wikipeida: Shenanigans are trickery, mischief, or underhanded actions), or as I call it "what were they thinking?" What often seems like a good idea at 3:00AM makes no sense in the light of morning.

Yeah Ithaca College and Cornell University students sometimes unwind from the stress of studies in interesting ways. In my youth, I was a fraternity member. My rat brothers and I had made many road trips, and our fair share of craziness. Nothing like mixing PGA (pure grain alcohol), Boonesfarm, and alot of other assorted beverages to make a potent albeit sweet punch.

So when things happen, as they often do, at the wee hours of morning, when brain cells are not fully engaged, I will end up representing students with various criminal charges. These are usually misdemeanors, and if they resulted in a criminal conviction would stay on their permanent record forever. New York State unfortunately does not have an expungement statute. Many of these first time offenders just made a bad decision/judgement call.

One possible option, depending upon the facts and circumstances, for first timers (to the Court system) is that I can try to negotiate the charges with the ADA (Asst. District Attorney) to an ACD.

An ACD is a Court Adjournment of the matter (for 6 months) in Contemplation of Dismissal. In other words, if the offender does not get into any further trouble with the law over a six month time period the charges will be dismissed by the Court.

That is well and good, but sometimes the facts and circumstances of the offense involve more serious allegations. They are still at the misdemeanor level of crime, but they may involve violence, a pattern of drug abuse, or of harm to people and/or property. These cases are naturally dealt with more harshly by the prosecutors and the Court. Their concern for the general public is understandable.

In these situations a second potential disposition is a negotiated plea to Disorderly Conduct. Commonly called a "Discon" in criminal Court parlance.

Disorderly conduct is not a crime, it is considered under the Penal Law to be a Violation and
Disorderly conduct does covers a wide range of unlawful conduct, behavior, and activities.

Disorderly Conduct, Penal Law 240.20, has many subdivisions. According to the Penal Law, a person is guilty of this violation when, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," a person does one of the following:

(1) Engages in fighting or in violent, tumultuous or threatening behavior;
(2) Makes unreasonable noise;
(3) Uses obscene or abusive language or obscene gestures in a public place;
(4) Disturbs a lawful assembly or meeting of persons without any lawful authority;
(5) Obstructs vehicular or pedestrian traffic;
(6) Congregates with others in a public place and refuses to comply with police requests;
(7) Creates a hazardous condition or physically offensive condition by any act which serves no legitimate purpose.

btw, The foregoing all sound like Hijinks, Shenanigans, and stuff that happens at College parties.

What are the advantages to a plea to Disorderly Conduct (a violation) versus a plea to a Criminal Misdemeanor?

1. A Violation is not considered a criminal disposition or conviction. It is a non-criminal disposition. In my opinion, a "good" non-criminal disposition.

2. A person who is convicted, by plea or trial, of a violation is entitled to have their record sealed.

3. A person who is convicted, by plea or trial, of a violation is entitled to have their fingerprints and any photographs (mug shots) returned.

4. Disorderly conduct is considered a "non-printable" charge, for which fingerprints are not required.

5. A person who is convicted of a violation is entitled to have their statewide record kept confidential. In other words, no statewide search by the Office of Court Administration of electronic records relating to their violation can be disseminated (released) to the public once it is sealed.

Please Note however that the actual paper records kept in a City or Town's Criminal Court are not sealed, and the public does have access to the physical record in the clerk's office. Someone could physically go to that particular City, Town, or Village Court and find your records.

A Disorderly Conduct plea can be a practical resolution and compromise to having a trial. Trials always involve a degree of risk. The risk of losing at trial (and being found guilty of a misdemeanor) usually far outweigh the benefits of pleaing to a violation.

For the all following reasons, when prosecutors and defense lawyers negotiate pleas to violations it helps clients avoid the lifetime consequences of a conviction for a crime that they were alleged to have committed.

Criminal Defense Lawyers and the Taliban

I was surfing online the other day looking for training on my favorite subject, and came across a Police seminar on the FSTs (Field Sobriety Tests). I sent the organizer of the course an email asking if I could attend the program. I thought it might be fun and interesting to learn from a police perspective. The course instructor sent me back a rather intense email stating in no uncertain terms that his training was only for Police enforcement, and that allowing me to attend was like giving the Taliban nuclear weapons.

Wow! I was amused and laughed at his analogy. First, I have great respect for law enforcement. My father worked for the City of NY and then the state of NY in corrections for a great many years. Second, I do not believe I am the enemy of the police or the government. I am a check to the system, and what I believe to be a necessary component for the administration of justice and fairness. We, including the police, the government attorneys, judges, clerks, and defense lawyers are all important parts of a very integrated order and process. Lastly, I believe we should all strive to be well trained, educated, and honest when performing our jobs.

Well, there are other seminars on the same topic where I would be welcome. But, it is scary to believe that special and secret police DWI training should go on behind closed doors. Are there tricks to report writing and giving and grading the FSTs? Is making another DWI arrest more important than being fair? These and other questions dance in my head. I thought they were supposed to "protect and serve?" I am now thinking it is more like the police cruiser in the movie, "Transformers" that states on it's side, "to punish and enslave," anyway maybe I being a bit harsh, afterall I can be a threatening little man with a briefcase.

Besides this defense lawyer has feelings (yeah it's true), does not support terrorism or the Taliban, and though I do not own any guns, hunt, or practice martial arts I do enjoy police movies where the bad guys lose.

Is DWI Probation Supervision Worse Than Prison?

My job is to protect my clients. Avoiding a term of probation supervision is part of that protection. I do recognize the value of the probation department, and when it is appropriate, their services can be invaluable.

For younger people whose parents can not control them (the out of control teens) NYS has a PINS Program (Person In Need of Supervision) and pre-PINS probation program. These forms of probation are where the child reports to a probation officer who provides the child with resources, supervision, and direction (psychological counseling, drug counseling, job counseling, school counseling). I do feel that probation is a good thing for some adults as well. As an alternative to incarceration, probation supervision allows them to remain gainfully employed and get counseling for their drug/alcohol issues. Tompkins County also has a Felony Drug Court Program which is probation based, and more intense in it's rehabilitative goals.

Where I have an issue with probation is where it is recommended or the prosecution wishes to apply it to those adults who do not have drug and/or alcohol dependence issues. Some of these people would not benefit from Court Ordered Probation Supervision. I feel in some respects it is a punishment worse than a short jail sentence.

Recently I was in Court, and was watching an attorney and his client go through a plea and sentencing for a DWI. I observed the judge tell the attorney that because of Probation his client could not now get a condtional license at the DMV. The attorney had a look of shock. What he did not know, and what he failed to tell his surprised client was that once the probation department is involved (You are ON Probation or IN Probation) they decide when and if you get your license back. Not the Court and Not the DMV.

Some of the "terms and conditions" of a three year or five year probation:

1. Report to a Probation Officer or have the Probation Officer make surprise (unannounced)visits to your home or elsewhere (perhaps your job).

2. Remain within the Jurisdiction of the Court unless granted permission to leave (No random visits to relatives or friends or potential job opportunities in other states).

3. Be available for questions from your probation officer.

4. You must receive permission (prior consent) from your Probation Officer before you move, change your job, or remain away from home past 12:00am.

5. Refrain from disreputable people or places.

6. Abstain from the use of all drugs (except by prescription), as well as the use of any intoxicating beverages (alcohol).

7. Stay away from all places where alcoholic drinks (intoxicating beverages) are sold or served for on-premises consumption.

8. You must submit at any time without notice and without a search warrant to a search of your person, residence, vehicle, or other personal property, leased and/or owned that is not your residence and any area under your immediate control and permit seizure of any contraband.

9. You must be granted permission to obtain any type of driving privilege or license whether conditional or unconditional.

10. You may have to place an ignition interlock device on your car, and at your expense as required by the Probation department.

11. You have to submit upon request with or without prior notice to any appropriate test including breath, blood, urine or saliva for the purpose of determining the alcohol and/or drug content.

12. You must undergo an evaluation for alcohol and/or substance abuse and follow through with any treatment and/or counseling recommended, including inpatient and/or aftercare treatment, and shall undergo said treatment for as long as required, all at your expense.

13. You must attend and actively participate in and successfully complete counseling/treatment/educational programming/self help group as designated by Probation.

14. You may not drive a car without permission of Probation. Must inform Probation of all cars owned or operated and their plate numbers.

15. You must work faithfully at a suitable employment or pursue a course of study or vocational training that can lead to suitable employment. You can not quit or change employment without permission by Probation.

16. You are not allowed to own, use, or possess any guns, rifles, shotguns, stun guns, taiser, swords, ballistic knives, gravity knives, weapons, etc.

As to true understanding of the application of the Probation Department's terms. I have had clients forced to decline better employment in neighboring states. I have had client's have to submit to liver enzyme blood screens with Probation seeking to discover weekend drug use.

In some counties, it is well known that their Probation Departments do not give permission to have a driver's license for years. So some things can truly be worse than three or four months in prison.

Three Things You Must Know Before Your New York DWI Alcohol Evaluation

This is my follow up Post to my "I want a New Drug" Entry of last month. Many people have asked me to clarify the process and pitfalls.

It is likely that you will have a drug/alcohol screen/evaluation for your arrest for DWI for the following three reasons:

1. Under NYS law, an alcohol/drug screening and evaluation is mandatory if your BAC (blood alcohol concentration) at the time of your arrest (as measured by the breath test) was .15 or higher.

2. The results of an evaluation can prove helpful to your lawyer for plea bargaining purposes to demonstrate that your conduct on the night of the arrest was a one time event, and not a pattern of alcohol abuse behavior.

3. The alcohol screening/evaluation is part of the DMV's DDP (Drinking Driver Program) and must be done to obtain a conditional driving privilege. The program's completion is predicated upon a follow through with any treatment recommendations made by the OASAS (Office of Alcohol and Substance Abuse Services) certified provider. They have an excellent website to locate providers in your area, just put OASAS into google.

My advice before having your alcohol screening/evaluation:


1. Be prepared to answer questions about your drug and/or alcohol use.

Read through the MAST (Michigan Alcohol Screening Test) to have an idea of the type of questions that will be on the screening forms. Within the DDP program the alcohol screening is a questionaire/form to determine if you need an evaluation/assessment by a provider.

2. Be prepared to provide a urine sample for a drug screen.

NOTE: Drug screens are not drug tests. Screens are very general, fast, and inexpensive. They have a high sensitivity (show alot of false positives), and are not specific as to quality or type of drug. A drug test is very specific, and designed to qualify and quantify a certain drug. You may not have to provide a urine sample but why risk it. It is always better to expect to give a clean sample than to decline. I tell all my clients to avoid being around cannabis for at least four weeks prior to the test and other drugs for at least two weeks before the screen.

Many drugs both legal and illegal have a long half life (stay in your body for a long period of time). The way half life works is that every 7 days half the drug is left over after your use. After an additional 7 days half of the remaining half is left over- that is 1/4 left. After an additional 7 days, half of the remaining 1/4 is left- that is 1/8 of the original dose and so on. After 5 half lives 1/64 of the drug may be left- at this point it is likely that there will not be any clinical effect from the drug. This half life is dependent upon the frequency of the drug's usage, method of intake, length of usage, your tolerance to the drug, your fluid intake, your body size, your body fat, your metabolism, and the specific range that the drug testing uses to signify a “positive” for drug use. THC in particular is stored by the body in the fatty lipid tissue and are gradually released into the blood stream until cleared. For chronic users with a high body fat percentage, this process of elimination can take several weeks. Sometimes people on diets may be burning off fat, and releasing stored drugs (drugs stored in fat cells) into their urine.

The table below gives a guide to detection periods for many commonly used drugs:

Drug & Approximate Time Period of Detection

Alcohol 6–24 hoursAmphetamines 2–3 daysBarbituates 1 day to 3 weeksBenzodiazepines 3–7 daysCocaine 2–5 daysEuphorics (MDMA, Ecstasy) 1–3 daysMarijuana (THC) 7–30 days (mild use - moderate use - frequent/chronic use)Steroids (anabolic) 14–30 days

Any prescription drugs not reported to the provider but that may show up in your urine will be suspect as drugs of abuse. Remember that second-hand cannabis smoke exposure can also cause you to fail a standard urine drug screen.

Some OTC (over the counter) medications can also trigger false positives on drug screens:

• Ibuprofen (Advil, Motrin) • Midol • Sudafed • Vicks Nasal Spray • Neosynephren • Ephedra and Ephedrine (often in diet products) • Vicks 44

If you are determined to be a drug abuser (having drugs in your system that are unreported, unprescribed, and/or illegal) you will get a treatment recommendation of 3-12 months time. This is usually a twelve step based group and/or individual program with a frequency of 2-3 times per week.This program is likely to include follow up drug screens, and an order to completely stay away from drugs and alcohol. Note: You are allowed to obtain one second opinion concerning your evaluation. This second evaluation is then the final one for the Court.

3. Be prepared to follow through on all recommended treatment, and evaluations because the Court is going to want proof of completion.

If you receive a CD (conditional discharge) from the Court this will be one of terms of that discharge. If you fail to meet the Court's conditions your case can be re-opened and your failure will be considered a violation of the Court's Order.

If your alcohol evaluation indicates a "no treatment recommended" that will often be helpful to avoid the prosecutor (Assistant District Attorney) recommending a term of probation as a condition of your final sentence. This report of No Treatment by an evaluator can also assist your attorney in getting a ADWI (Aggravated DWI) charge where your BAC was .18 or higher reduced to a "regular" DWI.

I hope that this article sheds some much needed light on the DWI alcohol evaluation process.

Is it the Economy, the Job Market, or my DWI?

One of the wonderful things about practicing law is being popular. Not popular as in, "would you like to come to my party?"... but popular as in getting lots of phone calls, emails, and text inquiries.

One question that comes up quite often is in regards to the impact a conviction can have on future jobs and careers. With the state of today's economy many are struggling to get or maintain employment. I recently reviewed the job ads in local papers and online,

Glazier Position... no misdemeanor convictions in past 2 years, Materials Handler...No Misdemeanor convictions/ deferred adjudications within the last 2 years.-No felony convictions/deferred adjudication whatsoever. Phone sales...All applicants must...be able to pass a seven year criminal background check, some misdemeanor charges may be accepted depending on the nature and year of the conviction.

I think you are beginning to get the big picture. If it's between you or some other job applicant without a criminal conviction, your backgrounds will be considered. Now imagine a number of applicants for a more important assignment, it is a position of trust and authority. This employer plans on investing a sizable number of hours into your training and education. Who do they pick?

So now the obvious legal questions:

Firstly, are employers legally entitled (have a right) to know about my DWI conviction?

1. Employers are entitled by NYS law to ask about all criminal convictions including Misdemeanors and Felonies that resulted in a conviction.

2. Employers are not entitled to know about arrests that were resolved in a dismissal or an acquittal.

NYS Executive Law (Human Rights Law) Section 296(16)
"It is unlawful discrimination, unless specifically required or permitted by statute to make an inquiry about, whether in an application form or otherwise or to act upon adversely to the individual involved any arrest or criminal accusation of such individual not then pending against such individual which was then followed by termination of that criminal action or proceeding in favor of such individual, as defined by Section 160.50 of the Criminal Procedure Law.

Can a future employer deny me a job based on my DWI Conviction?

An employer can not deny you a job unless the conviction is directly related to the job duty or poses an unreasonable risk to persons or property. ie. a school bus driver position and your DWI conviction

Section 296 of the New York Executive Law makes it unlawful for an employer to deny employment to an individual based upon his or her having been convicted previously of a crime, or by reason of a finding of lack of “good moral character” due to his or her prior conviction of a criminal offense, when such a denial is a violation of NY Correction Law article 23-A (Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses).

Under Article 23-A, employers of 10 or more employees are expressly prohibited from making hiring or termination decisions based upon an individual’s conviction record unless:

(1) there is a direct relationship between the prior criminal offense(s) and the specific employment position sought or held by the individual; (see school bus driver example)

(2) hiring or continuing to employ a person would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. Before determining that an individual’s criminal conviction record bars employment or continued employment, Article 23-A requires that those employers weigh each of the following factors:

a. New York’s public policy favoring the employment of previous convicts;
b. The specific duties and responsibilities of the position sought or held by the individual;
c. The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on that individual’s fitness or ability to perform one or more job duties or responsibilities;
d. The time that has elapsed since the occurrence of the criminal offense(s);
e. The age of the applicant or employee at the time of the conviction;
f. The seriousness of the offense (misdemeanor vs. felony);
g. Any additional information produced by the person or on his or her behalf, regarding rehabilitation and good conduct (ie. Certificate of Relief from Disabilities); and
h. The employer’s legitimate interest in protecting its property as well as the safety and welfare of its employees and clients as well as the general public.

If the potential employer can find out about my DWI can they also ask me questions about my past and current drug/alcohol use?

Short answer is they can with some specific limitations. They can not ask questions that would indicate that you had a past drug/alcohol problem or a current problem because those inquiries would violate the Americans with Disabilities Act.

They can ask these questions:

1. Have you ever used illegal drugs?
2. When was the last time you took illegal drugs?
3. Do you drink alcohol?

They can not ask you how much you drink or how much drugs you used.

But practically speaking if they now know about your DWI conviction, and they know you drink or took illegal drugs what are your real chances for employment with this company?

In NYS, you can never erase or seal a violation involving DWAI (impaired driving), and you can never erase, seal, or expunge criminal convictions.

You always have options:

1. You can fight the possibility of a criminal conviction, by fighting the charges against you.
2. You can get a Certificate of Relief from Disabilities. This is for peoplewith no more than one felony and any number of misdemeanor convictions. This certificate demonstrates that the State of New York believes you are rehabilitated. This certificate also removes certain obstructions that you may have from obtaining licenses or getting certain jobs.