Diving into DUI in Key West

 Key West Versus Ithaca in February 2011

I love to go to seminars, last year I went to almost one a month, mind you I don't need any CLEs (continuing legal education credits), I go because I feel it is a privilege to learn and grow. Judging by the above photos it is also an opportunity to escape a long dismal Ithaca winter. Investing in whatever you do offers big payoffs because noone wants to wake up, look in the mirror, and see someone who sucks at their job or is just ok.

This week I have been in Key West, Florida listening to some of the best DUI/DWI defense lawyers in the country. Bruce Kapsack from San Fran, gave awesome closing arguments for drunk driving cases and Jim Nesci from Arizona gave us creative cross examination for the police. btw I have both their books and DWI defense from other states has a lot of cross application to New York.

We also had Dr. Bellack from LA, California not Louisiana, and he is a ENT specialist who testifies on GERD/LPR (reflux diseases that cause acid to enter the mouth) and how these diseases can affect alcohol breath test measurements. Jan Semenoff from Georgia, a breath test machine expert offered his expertise on how the police get falsely high breath tests in from 10% to 25% of the population, a big wow!

We also balanced out the program with attorney Hudson from Sarasota, FL, who spoke on repeat DWIs (felonies) and handling issues with addiction, treatment, and tactical considerations. His ideas were wise and creative. I am going home (back to Ithaca) with wonderful ideas, and I can't wait to begin implementing them. I have read that it is not the ideas you get that are important but having a recipe for dealing with them. Making my practice and service better is always the long term goal, because at the end of the day Key West sunshine is only temporary.

Lawyers Returning Calls: The Art of Being a Mensch!

I guess I have some pet peeves, I hate when I don't get my calls returned. I just think it is common courtesy to return/respond to a call. Even from people I don't know or don't like. I have prosecutors that I call over and over, I have companies I call over and over, who raised these people? A return call takes a couple of minutes.

It all comes down to just basic human respect. My dad, still rings in my head, may he rest in peace (it's been 33 years), always said he wanted just ONE thing from me, "respect." Not great grades, not stellar athletic performance, not monumental worldly success just respect for myself and others, because he saw that as the basic foundation to everything else. How can you be principled and maintain a sense of values, common decency to humanity without this quality? Those that respect others and their property and their values were in my father's eyes Mensches (in Yiddish this means being a "human being of integrity and honor.") He raised me or more groomed me to be that man. From the way he gave of his time to people in need to the way he tipped a server. My father gave people dignity.

So I have had dealings with fellow lawyers over the years, and many do not return my calls. To me it shows a self worth issue, they are more important, or their time is more important than mine, and that is probably the thing people dislike most about lawyers. They (clients) want to be able to communicate about their case, their situation, and having a true counselor available brings peace of mind. I pride myself on returning calls and being available. Does that make me better? Well yes and no, better for my clients, not always for me because my clients come to expect me to be there for them any time. btw I am better early in the day, old habits die hard, I get up very early, and go to sleep by 9 or 930 generally, so don't call after that if you want someone who is coherent.

If you ever compare me to someone else know that I am unique in this regard. I am in a word: Available!

And as I strive to serve I keep in the back of my mind my father's wish to have a mensch for a son.



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

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

http://www.ithacadwi.com

New York Puts New Penalties on Phoning While Driving

New York State ever on the cutting edge of either creating new law or updating old law is implementing new punishments for P.W.D. (phoning while driving) or T.W.D. (texting while driving) today. BTW NYS had the first DWI laws in the nation so if you are looking for a trend setter look to New York. (spoken as a true New Yorker)

Phoning or texting while driving used to be a NO point violation with merely a fine. Now it has 2 points associated with it which can cause your auto insurance to rise up to 20%. These points can also contribute towards the 11 points within an 18 month time period which mandates a 6 month DMV license suspension.

Driving requires you to be mentally focused on the task at hand. Distracted driving is a serious problem whether from a driver using a GPS, eating, applying make up, smoking, or any other non-driving related activity.

My problem is that when I see people behind the wheel eating their Mickey D's,,, is the issue really talking on a cell phone? I know we need to draw lines on behaviors that are dangerous but can we legislate and fairly apply these laws to create real change?

There still are many states that DO NOT require seatbelts, insurance, helmets, and FREELY allow cell phone use while driving. Is limiting our freedom to choose our own behavior going to make us safer? If you can safely drive while eating a bag of chips should we legislate a no snacking law for those who cannot? What about older drivers? Have you seen senior citizens get out of their cars who can barely walk and/or move too quickly? Are those 80 year old motorists, many who are on medication, and thus semi-distracted really safer than a 35 year old on a cell phone?

New York thinks so I'm not quite sure.

Ithaca DWI Out of State Student

DWI Defense Can Begin Early

Being from Brooklyn, I love pizza, and Ithaca has a couple of great pizza places. One of them is "The Nines." http://www.theninesithacany.com It is a cool place to go for a drink, and have some finger food as well. They have corn nuggets that are to die for. Also their spinach salads.

We were recently there, it was a bitter cold Sunday, thank G-d they were open, it's great to go out of season, when the Colleges are on break, anyway my wife's coke had a cool glass.

Perfect product or service placement if you ask me, cheaper than a DWI and IMHO the best defense begins right there!

Update Ignition Interlock Devices Declared Unconstitutional

New case out of City Court of Watertown, NY makes big waves.

People v. Waters, declares sections of New Leandra's Law Unconstitutional. Apparently the way the New York State Courts have been applying the Ignition Interlock Device has been Unconstitutional since August 2010... says New York rolled out the devices on first time offenders too fast and thus haphazardly infringed their rights under due process, equal protection, and overall fairness.

1. Unfair to force installation on every vehicle they own and/or operate

I have been arguing this point since I heard the new law, what if someone had multiple cars for family members (like me)?, What if someone owned a fleet of work cars?

Everyone is forced to suffer with the IIDs- makes no sense

2. Unfair to have no standards/guidelines for Judges to find indigency to install and maintain

Another point I have seen all too often, one court argued they needed to be on welfare or SSI

another Court Judge said they would decide based upon having a cell phone and a car payment

No set scale or published numbers?

3. No set cost (fines) on devices filed with the Court. These companies the IID firms have an open ticket in our pockets, as I say "carte blanche" the white card of prestige and utter power to do as they will

We still have them (the IIDs) but we definitely need further input and guidance in their use and application.

NYS is also forcing out of state motorists to install in their home states and send back via satellite the monitoring info, what if they fail do they have to travel back to NYS? Apparently the reach of NYS extends from sea to shining sea now!

DC Police Breathalyzer Wrong for Years

Can you imagine that the police knowingly used an inaccurate breathalyzer for years? How many innocent people went to jailand sustained convictions based on this machine?

see news story here:

http://www.myfoxdc.com/dpp/news/local/dc-breathalyzer-calibration-questioned-121410

The DWI Exceptions to the Constitution

People think they have all their constitutional rights in all criminal cases. The truth is scary. People who have been accused of murder have more rights than those accused of Drunk Driving. We in the drunk driving defense community call this the DWI exception or exceptions to the Constitution.

One of my mentors, a founding father of the NCDD (National College of DUI Defense) and a great DUI attorney from California, Lawrence Taylor put it best in his talk which details this erosion of our rights:

http://www.drunkdrivingdefense.com/general/lawrence-taylor.htm

Know that what rights you do have need to be preserved early and demanded in Court!

My First Widget

New York DWI Refusal Cases

The unique opportunity with DWI refusal cases is the administrative refusal hearing. It allows for cross examination of the police officer concerning the legality of the stop and the arrest. It can be a great beginning to gathering the evidence (all the facts) necessary to defending the case against intoxicated driving.

The hearing is for four main areas legally:

DMV Refusal hearing:

VTL 1194 (2) (c) : the hearing is limited to the following issues:

1. did the police officer have reasonable grounds (PC) to believe that such person had been driving in violation of any subdivision of VTL 1192?

2. Did the police officer make a lawful arrest ?

3. was such person given sufficient warning, in clear and unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made.

4. did such person refuse to submit to such chemical test or any portion thereof?

Was the refusal persistent?

3 Reasons You Won't Hire Me for Your New York DWI

There are as many reasons for hiring a lawyer as there are for not hiring one. Not everyone is for everyone. I know I am not everyone's cup of tea. I used to say, I'm a peach but not everyone likes peaches. They say "you can't be all things to all people" or "if everyone likes you that's a problem"... lets be real I love to practice DWI defense but if the relationships I have with my clients are horrible then my practice (and life) is gonna suck.

I want relationships with people who want me to be their lawyer. In turn I want to give my personal time and attention to these clients. Take a look at my video where I go through the 3 main reasons someone doesn't want me as their DWI lawyer:

The Unique New York State Justice Courts

I practice in the Finger Lakes region of New York State. It is a beautiful part of the country. I feel fortunate to have had opportunities to experience different Courts in all the smaller towns, villages, and cities. NYS is unique in that we still have these little local Courts which handle a wide array of matters including criminal misdemeanors.

Chief Judge Kaye said, “The Justice Courts are New York’s oldest tribunals, dating back centuries, and today continue to serve a critical role in the state’s justice system, handling more than two million cases each year and collecting more than $210 million in fees annually.”

There are 1300 Justice Courts throughout New York State. 2,100 plus Town and Village Justices serve in these Courts and over 2/3 of the Justices (Judges) are not lawyers. The Judges are elected to four-year terms, practice part time, and do not do it for the money. These are very committed individuals who seek in many instances to do the right thing and to serve their communities.

These Courts have come a long way over the years. Now there are electronic recording devices in most of these Courts. The Judges go through a training and education program specific to their Court duties.

This comes from the NYS Courts Judicial Website:

Changes to the training of new non-attorney Justices are particularly dramatic. In contrast to the single week of instruction prior to the Action Plan (2006), newly elected non-attorney Justices now receive seven weeks of pre-bench training, consisting of alternating periods of at-home assign- ments (a total of five weeks) and classroom training (a total of two weeks). Significant time is spent devoted to the most sensitive decisions facing a new Justice, such the right to counsel and determining bail. Instruction is provided initially by lecture for many topics, but is followed by mock proceedings where the Justices actually have to make difficult decisions based on “real” facts. The new Justices also receive two days of training after they have been on the bench for two to three months. New Justices report that these sessions at such an early point in their career on the bench have been particularly helpful.

This system is unlike the majority of Court systems in any of the other states. I think being familiar with these Courts, the people in them, and how they are conducted is even more important in the upstate New York area because of these differences.

Proving Your Rehabilitation to a Future Employer: Success is in the Details!

Convincing a future employer to give you a job despite a New York State criminal record is not always easy.

I think like an attorney, and the best way I know to demonstrate, and prove who you are (a rehabilitated person) is by showing key evidence in the following categories:

School: Transcripts and letters from teachers. Use these to show grades, attitude, and attendance.

Job Training: Letters of reference from teachers/trainers to include types of programs, training, punctuality, teamwork, and skills building.

Employment: Letters from supervisors showing work product, promotions, and attitude.

Mental Health and/or Drug/Alcohol Counseling: Letters from doctors, counselors, and therapists.

These should indicate clean drug screens/tests, full participation and/or completion, your growth, understanding, and awareness of the causation of past behavior, your commitment to sobriety, and that you are not a risk to yourself or others. Sign a release form so that they can disclose information about your treatment.

Certificate of relief from disabilities or Certificate of good conduct: These certificates help show your rehabilitation. If you have no more than one felony conviction and any number of misdemeanors, you might be eligible for a Certificate of Relief from Disabilities. If you have more than one felony, you might be eligible for a Certificate of Good Conduct.

Letter from your Probation Officer as to your success while on probation. Clean drug screens, punctuality, completion of treatment, and attitude.

All this evidence of your life turn around will wow the majority of people for the rest as the song says, "forget them."

Larry Newman Criminal Defense Attorney

I only go to school in New York. Will I be able to drive in my home state if I lose my privilege to drive in New York?

I practice in a College area with IC (Ithaca College), Cornell University, SUNY Binghamton, SUNY Cortland, New York Chiropractic College, TC3 (Tompkins Community), and a host of others all within striking distance. Many of my DWI clients are students, teachers, professors, Post docs, and Post grads all just passing through. Many still maintain driver's licenses from different states and countries. What happens after a New York DWI arrest to these privileges? What happens to their privileges to drive back home?

New York State can only revoke or suspend your privileges to drive in New York State. At your arraignment (initial appearance) a NYS judge must suspend your privilege to drive here (NYS) if you had a BAC of .08 or higher OR if you refused to take the breath test. However, 45 states are parties to an interstate compact that requires them to suspend the license of any person who has lost their privilege to drive in another state. These five: Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin DO NOT BELONG to the compact

If your home state has not been notified then they will not suspend.

New York typically does not notify the home state until the final hearing/disposition of your criminal case. Although, if you refused the breath test then after your administrative refusal hearing, where it is likely your NYS privileges will be revoked (cancelled) NY DMV will notify at that time.

If your home state is NOT notified (and they of course must notify you at the address listed on your license) then you still have driving privileges in all 49 states while your criminal case is pending in New York State.

To sum up: either after a administrative refusal hearing with a Judge or at the end of your criminal case your home state will likely suspend your license to drive and you will not be eligible for reinstatement until your privilege to drive in New York is restored. Your home state may also choose to impose an additional period of suspension or revocation for a New York DWI, DWAI, or ADWI conviction. Your home state could also require classes, treatment, an evaluation, fines, and surcharges. You should consult with an attorney from your home state to confirm what may or may not happen.

A Tale of Two Courts: Ithaca City versus Town of Ithaca

My backyard is Ithaca, NY. I do enjoy the Ithaca summers but winters can be trying and a dismal grey. Many people who has been charged with DWI ,and other traffic offenses often confuse the City of Ithaca and the Town of Ithaca Courts. Even after living in the City for a number of years it took me a little while to make sense of the divisions.

Cornell University occupies a huge land mass which straddles both the City and the Town boundaries and that is why some drunk driving cases are presented in the town versus the city and vice versa. On the other hand IC (Ithaca College) only occupies Town land so all IC criminal cases are held in the Town of Ithaca Court. I like to break it down this way, highlands of Ithaca (aside from Cayuga Heights which has it's own Village Court) are Town of Ithaca, and the lowlands (the flats) are the City of Ithaca.

The Town of Ithaca Justice Court only holds Court are two main days/sessions, and is less busy than the City.

Check the bottom left hand part of your tickets/charges to see whether you have to appear at:

Tioga Street, which is the Town of Ithaca Court or

Clinton Street, which is the City of Ithaca Court.

Some important Ithaca Court information is below.

Takeaways: Typically the busier City Courts will handle cases faster than the Town and Village Justice Courts (they have more support staff, open more hours, more Court sessions). That is also balanced with a much heavier case load. More cases can sometimes mean you are not getting out any faster.

The City Judges are paid much more than the part time Town and Village Justices, and they work full time schedules. Because of this, the ability to re-schedule Court dates, and have hearings on different days of the week offers more flexibility as well.

City of Ithaca Court

118 E. Clinton Street 
Ithaca, NY 14850 
(607) 273-2263

City Judges are elected to 10 year terms.

Hon. Judith A. Rossiter/ Bio Link Below

http://www.nycourtsystem.com/Applications/JudicialDirectory/Bio.php?ID=7025414

Hon. James Kerrigan/ Bio Link Below

http://www.nycourtsystem.com/Applications/JudicialDirectory/Bio.php?ID=7030229

Handles all cases from the city, some Cornell University cases, and the lowlands of Ithaca (downtown, commons, Route 13, Meadow Street).

Parking: at Cayuga Garage (across from Holiday Inn), $1.00/hour.

Court located next to police station on 3^rd floor. Must go over footbridge to enter building. Do not bring hot liquids, such as coffee into the building.

Court has multiple sessions during the week, initial appearances generally scheduled on Wednesday mornings and some Friday mornings.

______________________________________________________________________________________________

Town of Ithaca Justice Court

215 North Tioga Street Ithaca, New York 14850 (607) 273-0493

Town Justices are elected to 4 year terms.

Justice David Klein holds Court on: Wednesdays at 4:00 pm

Linda Fetherbay, Court Clerk

Justice James A. Salk holds Court on: Thursdays at 9:00 am

Betty Poole, Court Clerk

Handles IC (Ithaca College cases, some Cornell University Cases, and highlands of Ithaca)

Parking in garage at Seneca and Tioga Streets, next to Post Office, must park on higher levels, $1.00/hour. Starbucks and Hilton are located across the street from the Courthouse.

DO NOT CONFUSE: Tompkins County Courthouse is down Tioga street one block North. _________________________________________________________________________________

Understanding New York Upstate Court vs. Downstate Court