New York DMV Defines History Alcohol Abuse

I am happy to practice in little Ithaca , NY for many reasons. One that clearly stands out in my mind today is the fact that the DMV here is not too busy. In fact I would say the Tompkins County DMV here is fast, friendly, and easy.

You want to see busy, go to the Philadelphia DMV or better yet, go to any South Florida DMV. I can remember one time standing out in line to get a reservation for my daughter to take a road test. Can you imagine a line 40 people long, wrapping around a Coral Springs strip shopping mall, and you are waiting in this line with a number (like in a deli) in 90 degree humidity? Not fun or funny.

Be thankful for our DMV.

That said, what does the NY DMV classify as a history of alcohol abuse?

When most of us think "history" we think either many incidents in a long term (10 years) or a few incidents within a short term (5 years). The DMV does not allow any conditional driving privileges (or participation in the DDP) if a person has 2 alcohol related convictions within 5 years and has taken the DDP because of the the first alcohol related conviction (DWAI or DWI).

The NY DMV also states that any driving record (abstract) with 2 or more alcohol related charges (could be a DWAI or DWI) within 10 years and boom, you now have a history of alcohol abuse. This is further defined in Part 136.1 (b) (3) of the Regulation of the Commissioner of Motor Vehicles.

So to get your driver's license back after having 2 incidents within this 10 year time frame you MUST fill out and file DMV form DS-449, and submit evidence of either rehab (following an OASAS eval and follow up recommendations) OR a clean bill of health (ie. after a drug / alcohol eval no further treatment is necessary. Form DS- 449 is called "Alcohol Abuse Rehab. Program Summary."

Law Offices of Lawrence Newman

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

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

Ithaca Lawyer How to Defeat a Speeding Ticket

Ithaca, NY is in fall season. The Finger lakes region of New York State is beautiful this time of the year. To me the flowers of summer are amazing but the reds, yellows, and oranges that explode on to the pastures is absolutely incredible. Too bad people just can not slow down, and smell the coffee. Instead maybe they are drinking a bit too much of it.

All kidding aside the speed limits around these parts go from 30MPH back up to 40MPH and then 55MPH (the state speed limit is 55 except for the Interstates). Sometimes these changes can be abrupt as in OMG it is back down to 30MPH again. So you need to drive up and down, and with the rolling of the hills it can get tiresome.

I used to say (when I was younger), "I feel a need for some speed."

Speeding tickets can be very costly. There are fines, state surcharges, points on your driving record, car insurance ramifications, driver's license suspensions, driver education classes, DMV yearly surcharges, etc. a ticket for 25 miles per hour over the limit is a 6 pointer!

11 points or 3 speeding tickets in 18 months and you have a suspension of your New York license. If you get only 2 tickets in a work zone you also get suspended. For those from out of state, you will have your NYS "privilege" to drive suspended. You could also face a DMV administrative hearing where they would revoke your license. A revocation means you must re-apply and re-test for a license. A suspension means a definite period of time (kinda like suspended animation) where once the time ends the license is still there (you just pay a fee).

If your license gets suspended you may be able to get a restricted driving license (not full driving privileges) for school, work, and medical care.

So how can you defeat a speeding ticket?

Speed radar units need to be calibrated.

Records of calibration need to be kept.

Tuning forks need to be used to test these units regularly.

Tuning fork calibrations and calibration logs need to be done on the date speeding was alleged, and during the month of the violation alleged.

Certificates of calibration must be kept for the tuning forks.

There are many potential areas of errors in the great majority of speed testing devices:

Cosine error, batching error, panning and scanning errors, shadowing errors, errors from interferences (billboards, overpasses, CB radios, cell phone towers, radio towers), errors inside the police car (heater, A/C unit, fans, radios, computers, police radios), errors from improper placement of the radar unit within the police car, errors due to heat build up in the unit, errors due to cold build up in the unit, errors due to power surges by turning on or turning off the radar unit at the last minute to avoid a car's radar detection unit, errors from automatic car locking systems, errors from a laptop, errors from a cell phone, errors from a pager, errors due to mirror switch aiming, etc.

The officer needs to be questioned (cross examined) about all of this, in detail, before he can lay a foundation that this unit was in proper working condition and NO errors were made or occurred.

The real question comes down to can the government, the state, the people of the great state of NY (the District Attorney) prove beyond a reasonable doubt and to the exclusion of every honest, common sense doubt that the radar unit was properly working on the date and time in question?

Can they prove beyond this burden (this is their burden not yours) that the officer appropriately administered and used this testing device so that it was accurate and reliable?

Because if they can not then they have not met their burden, and the Judge must acquit.

New York DWI Windows of Opportunity

Funny how the things you think about can relate to so many other things. This morning I remarked to my wife how the pear I was about to eat had such a brief period of perfect ripeness. No, I'm not high, but I do get these moments of insight. I have found that pears unlike apples are good, crisp, and delicious (not mealy) for only a few days. Cut them too soon and they are hard and bland. 

Then it hit me, DWI cases also have temporary windows of opportunity. The clock begins to run on every case when you are first arraigned with counsel. This is where you enter your plea of not guilty, and are formally told of the charges against you, by The People (of the State of New York).

Once you are arraigned your attorney must NOW make a demand for Discovery, and for a Bill of Particulars. This is the government's evidence against you (how they plan on proving their case). 

The District Attorney now has 15 days with which to comply with that demand. In addition, you have ONLY 45 days from this first date (the date of the initial appearance) to make, and to file any pre-trial motions. Motions to suppress evidence, Motions to suppress statements, Motions to Contest the use of the refusal against you, Motions to state that the stop and/or the arrest were unconstitutional.

Does your attorney serve the demand upon the District Attorney in Court (at the Initial Appearance)? 

Does your attorney wait? A few days? A few weeks? Does he send a letter? 

My philosophy is that:

1. The ADAs (Assistant District Attorneys) have a lot more cases (files) than I do. 

2. The government employees are typically overworked, and can not possibly know each and every file. 

3. I have more time to spend and think about fewer cases (because I take fewer cases).

4. I have more time to demand, gather, interpret, and study the evidence.

5. I have an advantage IF I use time as an opportunity.

6. There is now a greater likelihood that I will better understand the facts and the case.

7. The sooner I begin, the better my defense (s) to the evidence.

Attorneys are on strict timelines (deadlines). Meaning that if you DO NOT file motions in a timely manner you will lose your opportunity (your chance) to contest and argue them at pre-trial hearings. Too bad, so sad or if you snooze you lose. 

Pre-trial hearings (suppression hearings) are really where cases are truly won or lost. They are opportunities (G-d I love that word) where a lawyer can truly test his defense theories, size up the police officer, and create narrow and focused points of attack. 

So much like seizing that opportunity to eat a piece of fruit when it is perfectly ripe I believe it is vitally important to strike early, strike first, and strike hard with DWI cases. 

Ithaca Cortland Lawyer Why I Love DWI Refusal Cases

My phone calls begin something like this, "I got arrested for a DWI?" and my response is usually, "let me ask you a few questions first to help give you some guidance and direction."  The reason for my first couple of questions is to tell me exactly what "type" of DWI case we are dealing with.

DWIs like people come in different shapes, sizes, and packages. DWIs can be:

1. With or without a traffic stop, ie. maybe the police were called to the scene to investigate an accident, or a person asleep behind the wheel, or a BOLO (be on the lookout) for an erratic driver, called in from a tip

2. With or without a breath test (the chemical test back at the police station or barracks)

3. With or without prior DWIs or DUIs or DWAIs or ADWIs

4. With or without a New York State Driver's License

5.  With or without a Sobriety Check Point

By no means is this list complete. There are many different DWI situations and combinations.

The Chemical Test Refusal DWI Case is unique for a number of reasons.

First the positives of the refusal case:

1. The police and prosecution do not have a breath test BAC to prove their case.

2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >.

3. The prosecutor can only charge VTL 1192 (3), "Common Law" DWI. 

4. The prosecutor usually only has one main witness, the arresting officer. 

5. The prosecutor must prove that "you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver." 

6. They must prove this legal burden of "intoxication" beyond a reasonable doubt based upon the police officer's observations, and field testing, if any.

7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.

8. The DWI defense lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor.

9. The cross examination can cover the stop, the arrest, and the field testing.

Second, the two main negatives of the refusal case:

1. You will have NO license of any type (conditional or hardship) while your criminal case is pending. NOTE: unless you win at the administrative refusal hearing (unlikely) or the officer does not show for the hearing and it is re-scheduled.

2. The jury will get an instruction from the Judge that they may infer a Consciousness of Guilt from your choice to not take the chemical test.

Personally, I like Refusal cases because they offer opportunities to challenge the purely opinion evidence of intoxication. The opinion of the officer is an opinion based in bias. He or she will want to support their decision to stop and arrest you. Their instructing, demonstrating, and evaluating you on the Field Sobriety Tests or (Roadside Agility Maneuvers) can usually be shown to be unfair. If we can show you were coherent (understood the officer's directions, instructions, questions) then providing other reasons for your bloodshot eyes, slurred speech (or impairment), and lack of balance create REASONABLE DOUBT in the minds of the jury as to your intoxication.

Dr. Lawrence (Larry) Newman
Attorney at Law
Doctor of Chiropractic

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

see my free book on Winning the DWI Refusal here:

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

What do Sex and Intoxication have in common?

I have always loved to read. I am fascinated by words. What they mean and how they can affect people. Words have power.

In the world of New York DWI defense words like standardized, validated, reliable, accurate, coherent, calibrated, impaired, intoxicated, reasonable, and fair all have a specific meaning within a specific context. You can never fully understand a word without context. That is why even at spelling bees the participants are given the word within a sentence.

Definitions of terms (words) lead us to judging a set of facts and seeing if they fall within an agreed set of conditions. We all saw this take place when former President Clinton was cross examined as to his relationship with Monica Lewinsky. Can you please define "sex"? Can you please define the word "the"?

In the Jones deposition on January 17, 1998, the President denied having had "a sexual affair," "sexual relations," or "a sexual relationship" with Ms. Lewinsky.

Then testifying before the grand jury on August 17, 1998, seven months after his Jones deposition, the President acknowledged "inappropriate intimate contact" with Ms. Lewinsky.

As to his denial in the Jones deposition that he and Ms. Lewinsky had had a "sexual relationship," the President maintained that there can be no sexual relationship without sexual intercourse, regardless of what other sexual activities may transpire. He stated that "most ordinary Americans" would embrace this distinction.

The President acknowledged that [A] person engages in "sexual relations" when the person knowingly engages in or causes -- (1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person . . . . "Contact" means intentional touching, either directly or through clothing.

According to what the President testified was his understanding, this definition "covers contact by the person being deposed with the enumerated areas, if the contact is done with an intent to arouse or gratify," but it does not cover oral sex performed on the person being deposed.

In the President's view(and understanding), "any person, reasonable person" would recognize that oral sex performed on the deponent falls outside the definition because Ms. Lewinsky performed oral sex on the President, then -- under this interpretation -- she engaged in sexual relations but he did not.

I wish I could get away with using this logic on my wife. I can see the conversation now, but honey ... it's not sex if only she's (my new girlfriend) performing and I am not (technically). So what has defining sex (in this way) have to do with defining Intoxication and New York DWIs.

Well first we have all agree upon a NYS legal definition of INTOXICATION. The charge of VTL 1192 (3) is "common law" DWI, and the term intoxication is a specific term of art.

People v. Cruz is the primary New York case to look to when defining the term intoxication.

The NYS legislature has never included a definition of intoxication in the drunk driving statutes but the Cruz case gives us an applicable standard:

"the standard for determining intoxication is constant; that is, whether the individual's consumption rendered him incapable of employing the physical and mental abilities needed to, for instance, form a specific intent, understand the nature and effect of a contract, or to testify truthfully and accurately"

People v. Cruz, 399 N.E.2d 513 (1979). This was somewhat vague so the Court stated further:

"In sum, intoxication is a ... degree of impairment which is rendered when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver."

So there you have it, sometimes sex and intoxication only occur if we can all agree upon their meanings. In a legal setting the lack of objective standards to determine whether a person is intoxicated has led to the "per se" DWI offenses. In my next blog, I will discuss VTL 1192 (2), DWI "per se" which means you are DWI when you have a BAC of .08 or higher.

Knock-em Off at the Knees

Many years ago I was an avid student of Karate. I had studied different styles until I happened upon American Kenpo. I thought it was a perfect blend of offensive and defensive moves because it embraced a pragmatic philosophy. It was Karate for the little guy. It was Karate in a phonebooth. You were up close and personal with not a lot of the high and hard kicks of Tae Kwon Do. Kenpo said do not bring your foot to their face bring their face down to your foot. Stomping on feet, toes, and shins naturally bent and brought bigger (taller) people down. Then they were nicely positioned to hit, punch, and strike. In other words knock-em off at the knees. Aiming low (hitting below the belt) was easy for me at 5'6". It was also very smart.

Nowadays I bring the Karate philosophy to my DWI defense practice. The prosecution must present foundation evidence before they can admit the results of their breath machine. They must present evidence that the machine was in "proper working order" at the time of the test. See People v. Freeland, 68 N.Y.2d 699, 700, 506 N.Y.S.2d 306, 307 (1986). Without this foundation evidence the BAC results are inadmissible.

Over the last month I have had multiple cases (after I obtained discovery) where the machines were not calibrated ie. properly maintained, for over 6 months. I knew this because I went through the Certificate of Calibration records for these machines. New York State has a "written" 6 month rule on Police car speedometers, and an unwritten rule that machines used to gather evidence, whether a speed laser gun or a breath machine be checked at least every six months.

This 6 month rule is not written in stone (or specifically in the DWI statutes) but case law supports it.

In New York State the term "calibration" means a machine that has been: (1) inspected,
(2)calibrated, and (3) repaired (if necessary) by specially trained technicians at specific NYS facilities.

In People v. Todd, 79 Misc. 2d 630, 360 N.Y.S. 2d 754, 759 (Delaware Co. Ct. 1974) a breath test machine had not been calibrated for over a six month time period, and was left on (running) all the time. The County Court disallowed the use of the breath test result. This case was upheld by the Court of Appeals which stated that it is upon the District Attorney to show (demonstrate) that the breath machine is in proper working order.

But as I have stated in prior blogs, even though many Courts will see Todd as creating this six month rule some Judges may still decide not to follow it.

Preliminary Breath Tests and Your 4th Amendment Rights

It is officially the end of summer, and the beginning of Fall here in Ithaca, NY. Last week we took out the air conditioners (the ones you put in old house windows), and to me that signaled the big change. The shift to shorter days and cooler nights.

It is common for people arrested for DWI in New York to confuse the different types of breath tests they were given. When people call me they have usually done (performed) so many tests, that the night or early morning is a blur. The breath test done by the roadside is called a PBT (preliminary breath test) aka alco-sensor test, and the one back at the police station or Trooper barracks is called "the chemical test." The results of PBTs are inadmissible in New York State Courts, and there is only a fine if you refuse to take it. They are considered unreliable because the chemicals within the handheld device wear out over time. On the other hand, the results of a chemical test are admissible in Court and there are steep penalties and a one year license revocation for refusals to submit to testing. Chemical tests use numbered ampoules of chemical solutions which are disposed of after each and every test.

When the police obtain a blood, breath, or urine sample from you it is considered a "search" under the Fourth Amendment. See the U.S. Supreme Court case, Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 402.The Fourth Amendment to the Constitution states that you shall be free from unreasonable search and seizure. Under New York DWI law it is arguable that "Before" police or law enforcement can request that you take a PBT (sample of breath at roadside) they must first have probable cause (reasonable cause) that you are intoxicated.

In People v. Brockum, 88 A.D. 2d 697, 451 N.Y.S. 2d 326, 327 (a New York State 3rd Department 1982 case) the defendant asserted that the preliminary (alco-sensor) testing of his breath in the absence of probable cause to believe (in the officer's opinion) that his ability to drive was impaired by alcohol constituted an unreasonable search in violation of his Fourth Amendment rights. In rejecting the defendant’s claim, the Appellate Division, Third Department, held that there was probable cause under the circumstances:

The record amply demonstrates that the police officer had reasonable grounds to suspect defendant’s intoxication. The vehicle swerved into the opposite lane forcing the police car off the road and was pursued for about one mile by the police car with flashing lights before stopping. These actions constituted sufficient factors from which the officer could reasonably infer that defendant was driving under the influence of alcohol. At the very minimum, the stop was justified. Once stopped, defendant exhibited watery and bloodshot eyes, emanated an odor of alcohol from both his person and vehicle, and admitted that he had a long day at work and had a few beers. In these prevailing circumstances, there was further probable cause for the officer to believe defendant to be driving under the influence of alcohol justifying the breath test.

Similarly, in People v. Graser, 90 Misd. 2d 219, 393 N.Y.S. 2d 1009, 1114 to 15 (Amherst Just. Ct. 1977) the Justice Court held that:

If the officer after stopping the defendant, has reasonable cause (probable cause) to believe that defendant has committed the crime of driving while intoxicated, he can arrest him, and make a search and seizure of the defendant’s breath after arresting him, by demanding a sample of the breath by means of a breath screening test. It would be a search and seizure, incident to a lawful arrest, and not constitutionally proscribed.

If the police officer demands that the motorist give him a breath sample before arresting him, but after having probable cause to make the arrest, such search and seizure also would not be proscribed merely because the police officer is searching for evidence of a particular crime, committed- to wit driving while intoxicated.

Which kinda brings me round robin on this blog post, the government needs PC (probable cause) for an arrest, they need PC to take seize a sample of your body fluids or breath, and they need PC to charge you with the crime of DWI. They can not arguably use their tests first to establish PC. That would be like putting the proverbial cart before the horse so to speak.

These are the fights we must wage in order to preserve and uphold our Constitutional rights. Sometimes in defending my clients I feel like David going after Goliath (the government, the police) with my slingshot. I must utilize a well thought out, and strategic plan of attack to focus and aim for vulnerable areas. The advantage always goes to the better prepared opponent.