The Art of DWI Defense

As the year 2009 comes to an end for me it is a time to reflect upon the past, and prepare for 2010. I have learned a lot this year, and grown as a DWI defense practitioner, and as a person. So as the year comes to a close... what have I learned? Or more true to form ... what have I been forced to remember?

1. You have to fight for what you want. Contesting a DWI comes with a price. Very little of true value, and worth comes easily. This price is not just money. It is time, it is effort, it is emotion, and it comes with making an investment in the outcome.

Whoever is first to the battle will be fresh for the fight. Sun Tzu

2. What happens outside of the Courtroom determines what happens inside the Courtroom. If a DWI trial is a day or two, the prep for that trial is weeks to months. Much like a game of football, level of practice and training determines the game's outcome. Few realize that those magic moments on game day are the result of thousands of hours of mental and physical work.

For me it is all those seminars, certifications in FSTs and Breath Testing, books, and DVDs. It is honing and focusing on one thing to the exclusion of all else.

The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand. Sun Tzu

3. DWI Policies are not set in stone. This year the Pope changed midnight mass to 10:00PM. In the 1960s the Catholic Church changed services from Latin to English. What is true and fixed one minute or moment in time will change tomorrow. Everything is dynamic, nothing is static.

If a District Attorney says, "we have never done it that way," I say, "well maybe now is the time to change." The government has policies, the Church has policies, and many corporations have policies. Rules, written and unwritten, observed and not observed are all subject to change. This year I have shown multiple people that just because you say (or your company states) this is the way it is, or this is the way it has to be, or this is the way we have done it for years, does not mean that is the way it will be, right now in this particular case or situation.

Water shapes its course according to the nature of the ground over which it flows; so in wartime there are no constant conditions. Sun Tzu

4. You have to move to progress. I get calls all the time. Sometimes from people not happy with their current lawyers. Often those lawyers did not file any motions, and did not move cases to suppression hearings in advance of trial. Even though we are in the defense game, you have to play offense as well. DWI cases are special in that waiting and hoping for what I call a Rambo victory by attrition is not a likely scenario. Remember in movie First Blood when Rambo was able to survive out in the wilderness. He was able to withstand the elements (the weather), able to forage and find food, and to create shelter out of garbage. He was able to outlast and outplay his pursuers. In survivor terms it was a battle for victory by attrition.

I have seen and heard of defense lawyers prolonging DWI cases for years in the hopes of getting a deal. Just one conference after another. This is more common with older lawyers. It is a civil strategy as well. The "Wear the Bastards Down" technique. Maybe that game plan will work with a drug case, or maybe that will work with a case involving civilian witnesses to a crime. I do not subscribe to that theory. Move, move hard, move fast, be proactive, and strike points. In other words, build a case defense, have a strategy, and attack the evidence. You cannot attack anything on your back. Make a Full frontal assault at the State's case, put them on the defense.

There has never been a protracted war from which a country has benefited.

One defends when his strength is inadequate, he attacks when it is abundant.

Thus, though we have heard of stupid haste in war, cleverness has never been seen associated with long delays. Sun Tzu

DWI Stories

December 22, and it has gotten cold in Ithaca, NY. The winter winds are starting to blow, and thermals are becoming a necessary part of my morning prep. Holiday parties are in full swing, and my phone has been ringing.

I listen to stories. In truth, everything is a story. Is there really an objective reality? Sometimes the truth is stranger than fiction. If someone believes that is what happened, is it a lie? There are the stories that my clients tell me, and then there are the stories that the police write in their reports. Often my clients tell me, "that never happened! or I don't remember saying that!"

I give my client's a long questionnaire to fill out, and also ask them to supply me with a narrative of the day of their arrest. That will begin to give me the best (most complete) view (story) of the DWI. Combining that story with the police reports, and records puts me in a good position to gauge the potential defenses, strategies, and issues within the case. BUT what happens if my clients DISTORT their memory, and then I am left with a faulty story of the event.

I believe as a DWI defense lawyer that One of the most important stories is my client's way of "seeing" this event.

I am not a psychologist but I love understanding how people think. Psychologists use the term

Cognitive Distortions to describe a person who takes an event, and sees it in unhealthy ways.

1. Absolute thinking (the all or nothing pattern): Seeing your DWI as black or white. Using words like always, never, and every paint you into a corner mentally. DWI cases, and their defenses have degrees of gray, rarely are they in clear cut black or white categories. You are not a total failure because of this DWI.

2. Overgeneralizing: This DWI is not a never ending pattern of bad news or your life's direction.

3. Using Mental Filters in the negative: You pick out everything you did that was wrong, improper, and focus on that to the exclusion of everything else. Are my clients blocking out the truth (the good things they did) at some unconscious level? Are they blocking out their memory of normal, sober, and appropriate behavior patterns?

4. Negate the Positive: You downplay your positive experiences. You put down your ability to follow directions accurately, to follow the officer's directions under pressure, and to walk on a straight imaginary line in the dark at 2:00AM.

5. You Jump to Conclusions and Interpret Negatively: Just because you are not coordinated doesn't mean you were drunk, do you have two left feet?, just because you were speeding doesn't mean you were driving drunk, drunk is a conclusion, intoxicated is a conclusion, impaired is a conclusion, you can look for and see things any way you choose to convincingly support a conclusion. My tie may be red I(a fact), whether it matches my pants or is ugly is a conclusion. Give me the facts, not your conclusions about the facts.

6. Magnifying or Minimizing: Are you exaggerating or minimizing the importance of any part of this event or the event itself? Are you inappropriately making things smaller or larger than they are or need to be? Is this goof up the end of your life? your marriage? your job?

7. Emotionalizing: Are you emotionalizing (feeling it to be) the DWI? I feel it is..... so it is. Things and events are devoid of emotions and feelings, if you choose to attach negative emotions to this event it will reflect back to you as "truth" when in fact it is only a version of the events.

8. Shoulda, woulda, coulda, I must, I have to: These are the words of guilt. This behavior pattern will not help you or your case. Guilt is lopsided, it means imagining more negatives than positives in your past.

9. Mislabeling the event: Describing the DWI by putting a negative label on yourself, as in " I am a loser" or "I am an idiot"

10. Personalizing the DWI: This means "I am a horrible person, I am irresponsible" You are not your DWI case. You are not crime, or a criminal charge.

All these "Distortions" will hinder your getting past this event, and your DWI defense. They cloud your mind, your judgment, and your remembering the event clearly. To be the most help to your attorney you need a clear head.

What is DWI "Per Se"?

One of the more challenging things about practicing DWI law is communicating the legal statutes in a way that is clear and understandable to my clients. All 50 states have at least two main types of DWI/DUI offenses. One is called a common law DWI, this is what most people understand or interpret as the "driving while drunk" or "driving while impaired" or "driving under the influence." It has many legal definitions, but in NYS it is mental and physical incapacity to operate (drive) a vehicle as a reasonably prudent (safe, responsible) person.

The other NYS statute is our DWI "per se." PER SE: latin for "by, through, in and of itself, intrinsically, inherently, requiring no external evidence."

If you get one thing from this blog this is it:

You DO NOT have to show the signs or symptoms of intoxication or drunkenness or impairment to be found guilty of this offense.

Merely the fact that a "good" (accurate, reliable, properly administered, calibrated) breath test indicated a BAC (blood alcohol concentration) of .08 or more. Some people like to argue but "I wasn't drunk." It does not matter. But I drove perfectly, it does not matter. But I understood the police officer and did all the tests right, it does not matter. If the state (the government/the prosecutor) can bring in their BTO (breath test operator) and make out (prove):

1. he or she was licensed

2. the machine was properly working

3. the test was properly administered

4. the test was performed within two hours of arrest

then ... the jury may (or may not) find that you are guilty of DWI "per se."

Now a DWI defense attorney can argue the problems with taking indirect measurements of blood through the taking of breath. He can argue that everyone is different even though these machines are calculated and calibrated and set up to test and assess "average" people. He can argue that you, the individual on this given occasion had specific medical issues. He can argue that the test was not properly administered, ie. No 20 minute "observation" period.

I have previously discussed other defenses to breath test results that do not match "sober" behavior patterns. In addition, everything the state proves must be proven to the BRD standard (beyond a reasonable doubt).

I could go on and on, suffice to say, the "science" behind breath testing for alcohol leaves a lot to be desired. Prosecutors and many Judges love to rely upon breath test numbers as godspell. After going through the certification program, and studying these machines I am more than a skeptic concerning their accuracy and reliability. I do not trust breath tests!

Mandatory Ignition Interlock Devices (IID) and NY DWI

Well Friday, December 18, 2009 was a historic day. It was the first day that the "new" New York DWI laws took effect. It was thirty days from Governor Paterson's signing, and Ithaca City Court Judge Kerrigan mandated the first case of the day, my DWI case, with a sentence of a conditional discharge (one year - no new trouble ie. crimes), and a Ignition Interlock Device to be imposed for six months. This of course was in addition to the fines, NYS surcharge, mandated DDP (drinking driver program), and a one time VIP (Victim Impact Panel) for March 31, 2010.

All DWI convictions, whether for VTL DWI "per se" with a BAC .08 or higher, 1192 (2), or

VTL Aggravated DWI with a BAC .18 or higher, 1192 (2) (a), or VTL DWI "common law" 1192 (3) with no BAC will now have the mandatory imposition of a six month IID on their vehicles.

The applicable section of the new act is below:

(ii) In addition to the imposition of any fine or period of imprisonment set forth in this paragraph, the court shall also sentence such person convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of this article to a period of probation or conditional discharge, as a condition of which it shall order such person to install and maintain, in accordance with the provisions of section eleven hundred ninety-eight of this article, an ignition interlock device in any motor vehicle owned or operated by such person during the term of such probation or conditional discharge imposed for such violation of section eleven hundred ninety-two of this article and in no event for less than six months. Provided, however, the court may not authorize the operation of a motor vehicle by any person whose license or privilege to operate a motor vehicle has been revoked pursuant to the provisions of this section.

Information on Ignition Interlock Devices and/or installation / service centers, contact:

Ron Bergstrom

Community Corrections Rep I

NYS DPCA

80 Wolf Road, Suite 501

Albany, NY 12205

518 485-9941 or: Ron.bergstrom@dpca.state.ny.us

Company Websites and more information:

INTERCEPTOR IGNITION INTERLOCK INC.

(www.interceptorusa.com)

SENS-O-LOCK DETERMINATOR

(www.sens-o-lock.com)

INTOXALOCK BY CST, Inc. (call 877 777-5020)

(www.intoxalock.com)

DRAEGER SAFETY, INC.

(www.draeger-breathalyzer.com)

NATIONAL INTERLOCK SERVICE

Telephone For All: 1 800 871-5462 or (www.nationalinterlock.com)

SMART START

(www.smartstartinc.com)

There are a lot of problems with these devices in general. I will compare and discuss the various devices in future blogs as to reliability and ease of use.

2012 Update to IID BASICS or the Most Common FAQs

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

The IID is not discretionary for NYS DWIs, it is Mandatory since August, 2010.

The Judges and the District Attorneys have no leeway or power here, if is a DWI (VTL 1192 (2), VTL 1192 (3), or ADWI (VTL 1192 (a) (a) then a device MUST be installed within 10 days of sentencing.

Bottom Line: There is NO plea bargaining concerning IIDs.

2. What if I live in another state?

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

Download times run 5 to 15 minutes. Some places can come out to your car with a handheld downloader.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 In Tompkins County we have three main providers:

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

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

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

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

8. How do I get One installed?

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

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

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

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

Michelle Barber:             Phone: 607-274-5461

Fax:  607-274-5429

Email: mbarber@tompkins-co.org

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

My Warnings: 

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

low battery

alternator voltage

defective horn

untimed engine

frequent stalling

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

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

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

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

11. How is the device set up and used?

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

-the unit will demand a start up test

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

-subsequent rolling tests, not to exceed 30 minutes

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

12. What if I am in found in Violation?

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

Law Offices of Lawrence Newman

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

Dividing and Conquering the DWI

I am a fan of military movies. When I was young I loved to watch John Wayne, Clint Eastwood, and Charles Bronson. They were in my mind men's men. They were walking, talking confident leaders. In my memory, forever type cast as strong, wise, and tough conquerers. They fought for justice, freedom, and the pursuit of happiness.

When I think of my own career arcs, I have always fought or placed myself up against the establishment. When I was a Chiropractor, it was giving my patients the choice of using holistic and natural treatments rather than blindly following one size fits all modern-scientific medical dogma. At other times it was arguing with an insurance company who refused to pay for a procedure or denied benefits. As a lawyer practicing civil law, it was fighting hospitals, medical doctors, and their insurance companies.

Today, practicing DWI defense law, it is the New York State government, law enforcement, and their lawyers (the prosecutors). I am the check to the system. Often I work to set an imbalance. In other words, to create a more level playing field.

One basic premise behind DWI defense is that a case can be won if it is carefully and completely broken down into little pieces. The military theory behind it is called, "Defeat in Detail." You can defeat an enemy more easily by dividing their forces. As Lincoln said, "United we stand, divided we fall." Sun Tzu, said in classic military text, The Art of War, "Fracture the whole."

Any case becomes a story. Every story has chapters. Each chapter has a goal and a purpose. The story is usually of a person at the center of a police investigation.

While they (the government lawyers) are focusing on patterns and signs that focus on drunkenness. I break down the story into the good driving, normal walking, normal talking, normal thinking, normal responding, normal answering, and normal behavior into little bites of tailored information. Each chapter of my story highlights function, and normality. My story focuses on the missing pieces. Their stories embody red, bloodshot, watery eyes, slurred speech, and the strong odor of alcohol. Painting a picture of the fall down drunk. I am looking for all the other reasons (the reasonable doubt) for those same observations.

What is observed are always surface signs. Eyes can look watery at 1:30AM for many reasons, none having to do with the consumption of alcohol. The majority of people are not at their best in the middle of night, and the early morning hours.

So many questions need to be asked. How long have they been studying? How many hours sleep have you had the night before? What is the state of their health? What effect do red and blue flashing lights play in your performance? Or a huge flashlight thrust in your face? Were you nervous, upset, and scared? The term "performance anxiety" ring a bell. How well would anyone do at anything if they forced, under the gun so to speak to perform?

It's all how you look at it. It's the focus. It's the breakdown. It's the details. Make a list right now (while it is still fresh) of everything you did that was good, that was right, that was normal

on the night of your arrest. You will be surprised at how much of what you remember was normal.