Playing the DWI Defense Game: Better Questions Yield Better Answers

YOU NEED THE RIGHT QUESTIONS

What never ceases to amaze me in the game of life is the power of questions. People want answers but what they really need is to ask the right questions???

The right question at the right place and at the right time can bring your thoughts into alignment, focus, and ultimately yield incredible answers. The right responses can bring you successful outcomes.

This same thinking permeates the game of DWI defense.

First, RECOGNIZE it's a GAME, it's all a GAME, so be a good GAME PLAYER to WIN!

So, What is their (prosecution's) "evidence" of intoxication?

Yes, cases need to be proven, and they need to proven by the use of evidence. Each case has a set of facts but moreso we have a perspective of a witness or witnesses who will testify. They will not be testifying to mere facts. They will be giving their opinion about those facts by coloring them. What do I mean by coloring? Saying that you smell alcohol, and saying that you smell a strong odor of alcohol coming from the face or facial region are two different things. Yes, Virginia adjectives color. Saying someone was all over the road is different then saying they moved in and out of lane on two occasions within a 2 mile stretch of highway. Pronouns can color as well. Calling someone a defendant or an accused is not like calling them by their first name. This dehumanization is deliberate.

Truth is often a perspective.

It is a biased opinion with or without color. My job as a professional problem solver is to seek out the best perspectives for my client. All facts have viewpoints.

A fact: a person has glassy, bloodshot, and watery eyes on the night or morning of their arrest.

THE BIG WHY?

Was it because they were intoxicated or are there other reasons? Other Reasons or Causes yield doubt. Reasonable doubt is common sense doubt or common sense reasons other than they were drunk.

Were they tired? Were they sleepy? Were they sick? Were they suffering from a cold? Do they have allergies? Were their contacts in for too many hours? Were they exposed to smoke? Are their eyes normally like that? Was it because it was 3:00AM? Was it because they were crying? Was it because they just got slapped in the face? Was it because the weather outside was 10 degrees? Was it because their car air-conditioner dries their eyes?

Human beings come in all different shapes and sizes. We are not all the same. In fact, on any given day or time we may react differently to the exact same irritant. Why is this? Because we are dynamic, our bodies are constantly in flux, and our physiologies are continually adapting to a changing environment. Many of the indicators (signs) of intoxication match very closely with those of us who are sleep deprived, over worked, and just plain tired.

If I came to your house and woke you up at 3:00am, how well would you perform on balance-coordination exercises? How well would your brain be functioning? Would you understand my questions? Is it because you are intoxicated or disoriented or tired or confused or scared or nervous? Now imagine you are driving home, it was a nice dinner or party, it is late, you are ready for bed, all of a sudden... blue and red lights, your heart is racing, your throat is in your chest, you are perspiring heavily, we know where this is going...

REMEMBER Your best defense is in asking the right questions.

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

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

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Please avail yourself of my online materials which include over 500 blog posts, dozens of articles, and over 470 informative videos on my youtube channel.

Five Things You Must Know: Commercial Driver's Licenses and DWAI/DWI/DUI

Many CDL holders don't realize the devastating consequences to their future that a DWI/DWAI/DUI in ANY state can bring. The amount of BAC necessary to trigger a CDL DWAI while operating a commercial vehicle is only .04. The amount in a non-commercial vehicle is .08 but will still kill your commercial driving privileges for ONE YEAR.

Here are the five things CDL holders charged with any drunk driving charges in New York State must know.

1. ADWI vs. DWI vs. DWAI conviction/disposition:

If a CDL holder is found not guilty of misdemeanor Driving While Intoxicated (DWI) and is convicted of non-criminal Driving While Ability Impaired (DWAI), a traffic infraction, You will still lose your commercial driving privileges for one year whether a ADWI (aggravated) or DWI (.08 or more) or DWAI (less than .08).

NOTE: If you decide to REFUSE (NO BAC Number) to take a chemical test of breath or blood you will still face these consequences.

In addition, all it takes is a .04 BAC to be found guilty of a CDL – DWAI, if you are operating a commercial vehicle. That level of BAC (.04) would not be of any affect to your license if you were operating a regular (non commercial) vehicle.

This is true even though this CDL DWAI and DWAI (non commercial vehicle) are traffic infractions.

2. Hardship License/Conditional License: 

The Court may still issue a hardship privilege but it cannot be used with your CDL. The DMV can also issue a pre-conviction conditional license (PCCL), usually thirty days after the suspension pending prosecution, but this will also not allow commercial privileges.

3. A CDL holder convicted of a DWI or DWAI offense you can obtain a limited-use license with non-commercial privileges. 

 Only if eligible for a pre-conviction conditional license (pre-trial) or a conditional license (post-trial) which require eligibility for enrollment in the (DDP) drinking driver program.

4. CDL Holders have minimum revocation periods for DWI and DWAI.

Commercial driving privileges shall be revoked for a minimum one-year if the CDL holder commits a major traffic offense (MTO):
Conviction for an alcohol (DWI/DWAI) or a driving while impaired by drugs (DWAID) offense while operating any motor vehicle, personal or commercial;

5. Not to scare you but repeat DWI offenders face lifetime CDL revocation.

A CDL holder with commercial driving privileges will be permanently revoked if the CDL holder commits one of the following MTOs:

Refusal to submit to a chemical test while operating any motor vehicle, personal or commercial;
Conviction for leaving the scene of either a property damage or personal injury accident without reporting, while operating any motor vehicle, personal or commercial;
Conviction for an alcohol or a driving while impaired by drugs (DWAID) offense while operating any motor vehicle, personal or commercial;
Conviction for a felony committed within or outside of NYS involving the use of any motor vehicle, personal or commercial; or
Conviction for operating a Commercial Motor Vehicle while his or her CDL was revoked, suspended, or canceled for prior violations, or if disqualified from operating a CMV, or conviction for causing a fatality through negligent operation of a CMV, including but not limited to, crimes of vehicular manslaughter or criminally negligent homicide.
and the CDL holder has previously:

Refused a chemical test while operating any motor vehicle, personal or commercial, or;
Was convicted for an MTO while operating any motor vehicle, personal or commercial; or,
Was convicted of leaving the scene of either a property damage or personal injury accident without reporting;
Been convicted of an alcohol related operating offense;
Been convicted of committing a felony involving the use of any motor vehicle; or
Operated a CMV while CDL was revoked, suspended, or canceled for prior violations, or if disqualified from operating a CMV or if convicted for causing a fatality through negligent operation of a CMV, including but not limited to, crimes of vehicular manslaughter or criminally negligent homicide.

You can get additional information on this web site, which includes forms for downloading, at: www.nysdmv.com.

Please Note: The CDL holder’s lifetime revocation can be lifted by the DMV after a period of 10 years has passed. The DMV commissioner will require that the driver show proof of rehabilitation through completed drug/alcohol treatment, a certificate of relief from disabilities from the Court of last conviction, and a clean driving record with no further alcohol/drug related charges including test refusals.

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

Navigating The Ithaca DWI Twilight Zone

I love these old shows, a great story well told is never old
from  screenrant.com

I am a big fan of the old twilight zone so I was excited to see a new version of the series on TV the other day. The old series with Rod Serling (Rod used to teach at Ithaca College and his remains are in Interlaken) was well written and made you think. I love the idea or concept of context, whether taking things out of context or having a juxtaposition of events, in other words I do like clever surprises.

Rod Serling would be the narrator/interpreter/guide to this place of confusion. Much like the world of DWI confusion. I guess I'm kinda like Rod in that way. The series would teach lessons about life and judging things too quickly. Good was bad and bad was good depending upon your frame of reference. As Rod used to say, "there's the signpost up ahead, the next stop the twilight zone."

The Land of DWI Confusion

Much like those poor unfortunate people moving through confusing patterns on TV's twilight zone, I often tell my clients that they can only see their case (their DWI)in a vacuum. I have an advantage (much like Rod) because over the years I have seen a large spectrum of DWI cases. I have taken many people on the DWI journey, from beginning to end, and as a result of this I can give them a bigger picture. I can view and compare their police report, their driving pattern, and their behavior pattern in relation to current standards for probable cause and current legal standards for intoxication and impairment. I say "current" because the law is dynamic. It is not set in stone. Cases are challenging the boundaries of law in New York as well as other jurisdictions. What is true today may not be true next year or next week.

Seeking Dry Ground: Uncovering The Certainties

One thing is always a certainty, within the array of facts are the good facts, the bad facts, and the ugly facts. I can often live with (work with) the good and the bad facts. For instance, you exited your car with no problems, understood directions, handed over your driver's license and not your credit card, or you failed to use your turn signal, or you were speeding. It's those ugly facts that get me, you fell down and couldn't get back up, or you confessed your guilt, and then wrote it down and signed it (yes, police can sometimes get people to do this).

Some cases clearly fall into the more good than ugly fact category, some clearly fall into the bad and ugly fact category, but the vast majority fall into the twilight zone. It is not purely black, not purely white, but a hazy gray. It is within this area that a DWI defense attorney must look at the details carefully. Strengths and weaknesses sometimes grow from the same vine (fact pattern).

Potential DWI Scenarios: The Possible and Probable Outcomes

As a DWI defense lawyer I recognize that my clients do not appreciate surprises so I try hard to prepare them for all potential scenarios. The problem is that No one (yes, no one I know) can completely predict the future or within the DWI arena, how a jury will judge a case, which is really a set a facts viewed through specific perspectives and filters. Any attorney or other professional guaranteeing a specific result should be avoided. My big disclaimer, I make no guarantees of outcomes, it is impossible, other than I will do my best.

BUT that said, when you work within a certain specific area long enough and hard enough you can predict outcomes with a higher degree of accuracy. You know and understand the possibilities and probabilities. Much like other professionals who buy and sell properties, stocks, and bonds. These calculated and weighted opinions while not always correct, are enough to make important decisions by and through.

I like to tell people you can be your own doctor (self diagnose and treat), you can be your own CPA (calculate and assess your own taxes), and even your own lawyer (although most judges will usually not allow this with those facing criminal charges without substantial proof of your education, ability, experience, and background) but you will usually have a much better outcome with someone who knows what they are doing and does it professionally. I have seen people as a doctor misdiagnose their conditions and hurt themselves through using improper treatment. I have also seen people as an attorney who ask their friends and family for legal advice. It can get ugly watching them squirm in Court. As the saying goes, those that act as their own lawyer have a fool for a client. The smartest lawyers do not try to be their own lawyer.

The Legal Cost Benefit Analysis: Detriment vs. Benefit

A good lawyer will do a cost benefit analysis that takes into consideration the client's goals, their current positions, and their tolerances. Options are the most important part of my discussion with clients, and viewing those options while taking into account the totality of "their" situation. Answers are not always simple or easy, and that is why having someone on your side with a larger (big picture) overview can often make the difference between being stuck in the DWI twilight zone or moving past it.

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

Defending DWI by Fighting the Crime of Opinion

Cats are cool!
from bookriot.com

I just returned from Boston, specifically the summer session of the NCDD (National College of DUI Defense) held at Harvard Law School. It was an incredible learning experience to be amongst the authors of most of the prominent DUI Defense Books.  These leading DUI trial lawyers shared openly and gave freely of their time.

There were lectures as well as interactive workshops where they (the masters of DUI Trial Practice) videotaped us doing cross examination of police, opening statements, closing arguments, etc. They critiqued our performances and gave great feedback. The speakers were some of the best I have seen or heard. From a Circuit Court Judge doing a presentation about how to understand Judges (he called it behind the curtain of Oz, as in the Wizard) to a twenty year veteran of the FBI crime labs. This Phd/lawyer/scientist spoke of all the problems with forensic lab testing (can anyone say Breathalyzer) and law enforcement's failure to often follow proper protocols. Everything was focused, and geared on DUI defense and practice.

One thing that stuck with me was something that I heard again and again, that DWI is a crime based purely upon Opinion.

The opinion of police officers and the opinion of a machine are used to obtain a conviction. This opinion evidence is fraught with problems. The police subjectively give and grade performance on field sobriety exercises. Their is usually a police bias in the record. Every person pulled over has the odor of alcohol, slurred speech, glassy-bloodshot eyes, and an unsteady gait. The machine takes a "breath" sample and magically yields an "accurate" blood alcohol level. The BAC is often an invalid number hanging in space which has no relation to the true BAC at time of driving. In a nutshell, that is why we do what we do. Protect the rights (the ones that come from that grand old document called the Constitution) of those accused of the crime of DWI.

Anyway, Boston is over, on a negative note, it was very humid, but the food service at Harvard Law School was top notch. It is time to go back to the real day to day work and nuts and bolts of DWI defense, and of course enjoying a rather cool 2009 Ithaca summer.

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

Summer is Officially Here! The BWI (Boating While Intoxicated)

Being on the water does make you thirsty
from iowadnr.gov

Practicing DWI defense in the Fingerlakes region of New York State, and living in Ithaca allows me the privilege of experiencing some amazing lake views. I love to witness Lake Cayuga go through the glory of all four seasons. Everytime I get in my car to appear in another town court in one of the many counties that surround the lakes I am taken back by the the incredible beauty of this area of the country. But of course, that is why I live and practice here, not by chance but by choice.

Summer does have it's drawbacks for me, there will be humid days and nights, lost tourists driving the wrong way down one of our many downtown one way streets, and the pain of yet again changing all the car tires from snows back to all seasons.

I kinda mark the beginning of "my" summer not with the end of school for my kids but by my first BWI phone call. To those not familiar, B.W.I. stands for, Boating While Intoxicated. It is a real criminal charge, and has alot of similarities to it's close cousin the NY DWI.

NY BWIs fall under Navigation Law section 49-a. If you want a sleep aid, forget Ambien, go read through section 49-a.

My surfing has led me to conclude that there is little information about NY BWI on the web. There is also some confusing, and wrong information on the internet concerning New York BWI. I am planning on writing a more in depth article about it in the near future. In the meantime I wanted to hit the highlights:

1. Similar to DWI and DWAI there are a BWI (misdemeanor) and a BWAI (violation).
2. The legal standard (definition) for BWI (intoxication) and BWAI (impairment) for water operation of a craft are comprable to operation of a car or motorcycle on land.
3. You are only in danger of losing (suspension) your license to operate a boat not your car. The suspensions are 6 months and up for the BWAI, and a year for the BWI.
4. There are specific boating safety classes required with both BWAI and BWI.
5. The classes have to be either state sanctioned, US Coast Guard, or US Power Squadron safety classes.
6. There is a "contribution" (around $200) to the "I Love New York" Safe Boating Fund.
7. The fines range from $350- $500 for a BWAI, and $500- $1,000 for a BWI.
8. The BWI and BWAI will be reported on your New York DMV driving abstract, so your auto rates will eventually be affected by your boating charges. If you are from out of state it is likely that this will also go on your state's DMV record because NY has an interstate compact with many adjoining states.
9. The BWI is a criminal charge and will affect your entry into Canada in the future.
10.The BWAI violation is also going to affect your ability to enter Cananda because it is an alcohol related offense.
11. If you refuse the Breath Test back at the station (not to be confused with the preliminary breath test on the roadside) you will face many of the same consequences, ie. increased boating license loss, additional fines, as a DWI test refusal.
12. The BWI has a .08 BAC or >(breath alcohol concentration) standard, same as a DWI.
13. There will be additional NY state surcharges of around $240 for a BWAI, and $400 for a BWI.
14. There are two types of BWI, a BWI "per se" offense based only upon your BAC (.08 or >) and a BWI "common law" based upon the officer's observations, field sobriety testing, and other evidence of intoxication.
15. Since NY state has no expungement statute a BWI (misdemeanor) will remain on your permanent criminal record forever.
16. BWIs are defended much the same way as DWIs. The state (the prosecutor) still has the burden of proving you were intoxicated at the time of operation. The breath machine can be challenged for accuracy, validity, and reliability. The officer's tests can be shown to be administered improperly or scored with bias.

So my thoughts for today, let some else drive your boat, a designated "captain" so to speak. Enjoy the beauty of the lakes as a "passenger" if you want a few cold beers on a hot sunny day.

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

Holiday Headaches: The 4th of July DWI Reality

One cool police /taxi cruiser?
You are going to pay either way, a little or a lot!!

I sit this morning in Jim Thorpe, PA awaiting our whitewater rafting adventure and as in every Fourth celebrating my son Sam's Birthday. Yeah, we have a son named Sam, and he was born on the Fourth of July. No, we didn't name him after Uncle Sam. We named him Samuel after my great grandfather. He was the first to come to Ellis Island in 1906, escaping religious persecution in Russia.

I got a call from a client the other day, he is still thinking that the crime of DWI is like a shoplifting charge, or a harassment charge, or a reckless endangerment charge (all misdemeanors). Yeah, if you stole from me in New York, or threatened my life, or threw a rock in my general direction, and it was a first time offense it is likely to be reduced to a non criminal disposition ( a non crime ), like a disorderly conduct violation ....

BUT BUT BUT you can be a great student, a super father, a marvelous husband, a responsible parent, an honest tax payor, a hard working employee, a law abiding citizen of the great USA, and still your first time DWI will NOT be reduced just because of all of the preceding.

Yes, it is true Virginia there is no free lunch, and no automatic DWI reductions at those higher blood alcohol levels (usually 0.12 or >). This is what truly bothers most first timer DWI offenders... No special treatment or consideration...even for wonderful people, the best amongst us.

In fact, the opposite trend is now true. The zealous government prosecutors have no qualms with prosecuting even lower BACs or even Refusal cases. Yes I'm talking about misdemeanor cases, and in this politically correct day and age, the crime of DWI is very high on the list of horrible offenses.

How do I know this? I'm in these Courts day after day, and listen to some Judges call the offense of DWI a crime of violence. Just last week, I asked for a fine reduction in a very small town, now mind you the State Surcharge for a DWI is $400, and the Town Justice fined my client more than what the District Attorney was requesting in their offer, and then launched into a speech about how terrible DWIs are, and how my client was going to pay big.

Who was this client? Someone who had been driving for 40 years with not even a traffic ticket, married for 35 years, in the same job for 25 years, and all of these additional fines added (by the Judge) because of one single isolated incident. Now the facts in this case were stacked heavily against us, and the charges numerous... so a reduction to a DWI was an incredible offer in this situation. (as a disclaimer, past results in any cases do not guarantee anything). Any criminal defense attorney that offers you guarantees of outcomes, run away!! I can only offer predictabilities (is that a word?).

So on this 4th of July, let Freedom ring, I am proud to be an American, I am proud and honored to defend DWIs, I will not be deterred, I will continue to fight the good fight, I will challenge at every opportunity and at every point of contention, and I will not let them win.

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

Don't Take Your Right to a DWI Trial For Granted

If only it was this easy to get jurors to stay awake
from billofrightsinstitute.org

This past week I took my family on our annual summer vacation. We went to Williamsburg, VA and then whitewater rafting in PA. You can imagine their yawns when I told them where we were going first. My wife and I both went there when we were children so naturally we thought it would be an exciting and educational adventure for them. They were disappointed that the re-enactors did not stay in their colonial roles. My favorite part of the restored community was the colonial courthouse, of course. It reminded me of how much we as Americans take for granted, especially our Constitutional Right to a Jury Trial.

You see part of our revolution (our revolt) against England was because the British wanted the ability to punish some crimes against the Crown without the right to a Jury trial. They wanted certain crimes to be tried to only a Judge (a Bench Trial). These crimes were punishable by death. To get some perspective, back in the day, horse stealing was a capitol offense (punishable by hanging). The colonists wanted to be free and prevent oppression from the government. We think nowadays that we are all guaranteed a Right to a Jury Trial, sadly we are not.

Under the Sixth Amendment of the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But the right to a Jury Trial is a qualified one, it is State, and crime dependent. Much like the right to a free lawyer may not be the right to the best or most qualified lawyer. This is especially so in the area of drunk driving laws.

Not every state provides a Right to a Jury Trial for DWI cases. Our sister states, Pennsylvania and New Jersey do not give a right to a jury trial for first time DWIs (which are unclassified misdemeanors in PA). You get a Bench Trial in those jurisdictions.

Fortunately, in New York State DWI charges under VTL section 1192 give people a right to a jury trial. This comes from New York Criminal Procedure Law, Section 340.40(2) which states: “In any local criminal court a defendant who has entered a plea of not guilty to an information which charges a misdemeanor must be accorded a jury trial." Misdemeanors are tried to a jury of six people. Felonies (2nd time DWIs in NY) are tried to a jury of twelve people.

Only being allowed a Bench Trial (to a Judge) for a DWI criminal charge (as in NJ and PA) I feel puts people at a great disadvantage. In a Bench trial the Judge must act as the factfinder. The factfinders (Jurors in a Jury Trial) hear the evidence and decide it's credibility, it's weight, and it's value. In a Jury Trial, the Judge must explain the law to the Jurors. He is said to "charge" the Jury, he in effect gives them a specific set of Jury instructions. The Judge also acts as the interpreter of the law. Jurors then apply the facts to the law as explained and charged by the Judge. Finally they will render a verdict of guilty or not guilty of the crime of driving while intoxicated.

The ability to challenge the evidence of intoxication in front of a jury of six people gives a person accused of DWI a fighting chance. A chance to demonstrate what they did right, a chance to reveal themselves as human beings, a chance to confront the police on their bias and their subjective perspective, a chance to show the unfairness of field sobriety testing, a chance to challenge the Breath machine and it's "science", and a chance to tell their side of the story.

Thank god our forefathers were smart enough to recognize the value of the Jury Trial for crimes charged. In most criminal cases I would rather trust my fate and that of my clients to a Jury of my peers then an elected official (the Judge). Many of us living in New York State like to complain about the laws, the taxes, and the problems with our state government. After practicing law in the other two sister states (PA and NJ) without this valuable right (Jury Trials for DWIs) I can tell you in no uncertain terms I feel blessed to be in New York, and having the DWI Jury Trial as a backbone to our liberty from Government Oppression.

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