Ithaca Lawyer Boating with a DWI Conditional License

I do get lots of interesting questions, here is a recent query:

I have a question that no one seems to have the answer to or wants to answer in any definitive manner, not other laywers, probation department, or any authorities I have spoken to thus far. My question is this: 

I am a NYS resident and I have been convicted of DWI in NYS, scentencing adjourned for 1 year upon completion of interim probation. I am currently using a conditional driver's license. 

AM I ALLOWED TO OPERATE MY RECREATIONAL FISHING VESSEL AT THIS TIME??? 

One source claims absolutely not, that I am not allowed to operate any motorized vehicle or vessel except for the specific outlines of my conditional license. Another source claims I can because a license is NOT required to operate a recreational boat in the first place, and my current driver's license status has no bearing on operating a boat.

Thank you so much for any time you take to answer this question if possible..

Kindest regards,

Billy Bob (name has been changed to protect the guilty)

My response (this is what I do in my spare time, not boating but answering stuff about boating):

That's an excellent question, one I would ask to the DMV for the definitive answer 

but if I may think legally on it, 

1. by analogy one can ride their snowmobile or recreational vehicle with a cond license (the snow definitely recreational) so I would think the boat is similar, 

2. in addition, the cond license is a limited license (privilege) and only because work, school, and med care are vitally important and necessary, to get to these places only by a CAR or other motor vehicle. I think the definition of motor vehicle is the key here.

NOTE: NYS defines "motor vehicle" as car or truck or Motorcycle  NOT boat, snowmobile, or recreational vehicle

3. lastly, BWI (boating while intoxicated) doesn't "usually" affect your driver's license merely your boating license. Unless it is a boating accident, this is in the discretion of the DMV commissioner.

Similarly, a DWI should only affect your motor vehicle license and NOT your boating license

I finally went into the call the DMV and they feel similarly, 

 all the best

Larry

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Cortland Lawyer The DDP week by week: New York Drinking Driver Program 2012

I have had many ADWI, DWI, and DWAI clients over the years take the NYS DMV DDP. In the past I have written about what the program was about, it's goals and purpose. In this blog I hope to be more specific of exactly what the 2012 DDP entails. To get a New York State conditional license after any DW, whether it is a refusal case, or any driving while Intoxicated charge you MUST eventually take the DDP.

Some of what I report on is unique to Tompkins county but most DDP protocols are standardized, and therefore could be applied Statewide.

Total: Seven consecutive weeks, one session per week. Approx. 15 hours

Place: Tompkins County, NY in the Mental Health Building on Green Street, 5th floor, downtown Ithaca.

Time: Tuesday Classes from 6:00 to 7:30PM.

Class session Week 1: 

Sign in, pay (must pay by third session), approx. cost $225 for DDP, Post Revocation Conditional license is approx. $75, fill out forms and releases.

The New York DDP next uses the RIASI test as an assessment tool. RIASI is short for "Research Institute on Addiction Self Inventory." It is a 49 question, 41 true/false and 8 items as to frequency and/or quantity of certain behaviors, it is a 15 minute test, developed in 1997 to predict the likelihood of DDP participants getting another DWI charge. In other words your degree of risk for recidivism.

The New York State Office of Alcoholism and Substance Services (OASAS) has chosen the RIASI test to measure the level of substance abuse and/or the seriousness of the problem within DDP course attendees. Created by Tom Nochajski, Phd. who is an Associate Professor at the Center for Health and Social Research at the University of Buffalo, it is used by New Hampshire, and other states and lies at the core of many DWI programs.

For more information on this matter see the New Hampshire blog here:

http://forcedworship.blogspot.com/2011/07/heres-riasi-test.html

Questions will be somewhat subtle as to the assessment of potential addictive behavior or patterns of substance abuse. The testers call this "covert content items" as they address or ask about hostility/anger, sensation/pleasure seeking, depression/mental illness, and other personality disorders/behaviors instead of direct questions about drinking alcohol, and/or abusing drugs.

NOTE: Three reasons can get you kicked out of DDP = loss of conditional license.

1. don't pay for classes by third class session
2. come to class drunk
3. miss three classes, 3 strike rule

If you miss a class, then that class must be made up in the next DDP go round.

Class Session Week 2:

1980s Film about DUI. Police cadets drive sober and then have drinks. Interaction with fellow classmates in break out groups. Discussion of driver, car, and the environment as to the areas affected by different things/situations/conditions. Discussion of BACs.

Class Session Week 3:

Discussion of the development alcoholism. Factors and characteristics are discussed. Distribution of a workbook called Prime for Life.  Homework given to do chapters in the workbook.

From the Prime for Life website:

http://www.primeforlife.org/homepage.cfm?CFID=768994&CFTOKEN=86054592

PRIME For Life is an alcohol and drug program for people of all ages. It is designed to gently but powerfully challenge common beliefs and attitudes that directly contribute to high-risk alcohol and drug use. The program goals are to reduce the risk for health problems and impairment problems.


Class Session Week 4:

Show and tell: learning about the strengths (%) of alcohol in different size glasses of liquor, wine, beer, cocktails, and what constitutes a drink. Learning the 0-1-2-3- formula for amounts of alcoholic beverages you can drink in a given week, your risk, and how drinking at various levels (amounts) can affect you.

Personal assessments from the workbook on behavior. A movie about the harmful effects of alcohol on the body by Dr. Schneider.

Class Session Week 5

Focus on the dangers of excessive use of alcohol, impaired learning response, and problem drinking.
Alcohol abuse can disrupt higher order cognitive brain mechanisms such as working memory, learning, and decision making.

Class Session Week 6:

Workbook, more discussion of alcoholism, and assignment given to go over your DWI arrest. This is to be shared with the class.

Class Session Week 7:

DWI movie, then lecture, and then one of three envelopes was passed out to the participants:

1. one with a green slip for the return of your license and a letter
OR
2. letter stating classes missed and make up dates
OR
3. letter stating you need further counseling/evaluation

So there you have it, a short synopsis of the NYS DMV DDP.

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Lawyer New York DWI, Military Service, and The Price of Tea in China

I just fielded a call from someone looking for an out from his DWI. Who isn't?
Sometimes there is a great legal defense, a weak legal defense, little to no defense, ideas and creativity can run the gamut, from the very bad to the very clever and good. Most of the bad ideas are pretty memorable.

In this case he now wanted to join the Army. He figured if he was going into the military, that they (the District Attorney and the Judge) would cut him a break. As in, drop the charges.

Representation of Service People: Army, Air Force, Marines, Navy

Now I have represented many people who were either in the armed services or just recently out. Sometimes the fact that they have served honorably, are currently enlisted, or about to be deployed can make a difference with DWI (criminal charges) pending. I learned a lot about the Army (and other branches) representing these men and women.

What I soon discovered was shocking. I learned the full consequences of a DWI to a Sgt. or other person of higher rank. They could be administratively discharged, lose privileges, reduction of rank, pay (grade) cuts, loss of benefits, loss of security privileges/clearance, and other mandated punishments (exclusive to the military) called NJP (Non-Judicial Punishment/ Article 15). BTW Article 15 punishment can come even before you are found guilty under civilian law.

Members of the Military Face "THREE" Areas of Punishment

1. DMV license issues (in NYS and maybe even out of state)
2. Criminal Charges in NYS State Court
3. Military Non-Judicial Punishment (beyond civilan punishments/fines/fees)  

This comes from the Uniform Code of Military Justice. 

Two key points for service people: 

1. You can be punished in both military and civilian Courts for the same charges.
This is not double jeopardy.

2. The military standard for intoxication DWI/DUI is way easier to prove than the civilian standard. Just like Canada, intoxication vs. impairment or levels of BACs are of little consequence. Impaired = intoxicated driving (operation) AND is ANY amount sufficient to affect the rational exercise of your mental and physical abilities. 

Just last year I had an enlisted officer that I was able to negotiate a equity deal for on a DWI charge. He was just about to be deployed. He also had an exemplary past record of impeccable service coupled with a forthcoming tour overseas. These things tipped the scales of justice to his benefit. Not every case or every prosecutor or every judge will even entertain that argument but some may.

But in the case above, my phone caller was looking to game the system, he was looking to now go to a recruitment office and try and sign up. This was Post- DWI arrest not Pre - DWI arrest.

The Price of Tea in China

I told him, "what does this have  to do with the price of tea in China?" This old saying basically implies that his desire to now escape to military service (or join the circus) has nothing to do with his pending DWI charges. If this was the case then lots of people may want to join, enlist, or just plain take jobs in other states and say, "hey I have a job in California." I had a girl once tell a judge that she recently signed a lease for an apartment in North Carolina. He said, "so what, you have criminal charges pending in NYS."

Maybe my caller saw an old war movie where they offered convicted criminals a chance to either go to jail or go fight in a war? Either way, this is not his situation or a very good defense for his DWI.



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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Lawyer What is New York State Sealing Really Mean?

Sealing the record of an arrest and an offense that was committed in New York is important to fully understand. Reading the actual statutes can be confusing without some context and background info.
I will try to highlight and explain in simple terms the main points to NYS sealing.

First, what can get sealed in New York State? 

Non -criminal offenses can get sealed. That means the large majority of violations can, and should be sealed. Under Section 160.55 (NYS Criminal Procedure Sealing) statute,
three violations are NOT sealed:

"other than a violation of loitering (1) and (2) (sexual or prostitution) as described in paragraph (d)  or  (e) of subdivision one of section 160.10 of this chapter or the

 (3) violation of  operating  a  motor  vehicle  while  ability  impaired  "

Things like disorderly conduct, unlawful possession of marijuana, and trespass (violation level) get sealed. Sometimes the best plea bargaining (negotiating) is from a misdemeanor level offense (crime) to a non-criminal (violation) level offense.

A great example: New York Penal Law Section 140.10 Criminal Trespass in the third degree is a misdemeanor. It means that you went over or through a fence or an enclosure onto private property without permission. Like jumping a fence to a rock concert or an event.

While New York Penal Law Section 140.05 Trespass is merely a violation (unlawfully on property).
New York State has NO expungement statute for crimes. So a conviction for criminal trespass would be on your permanent record forever, and violation trespass would be sealed.  You would prefer violations to misdemeanors any day of the week.

Second, What is Sealing in New York State?

I always say NYS because every state is different. Sealing is under NYS Criminal Procedure Law
Section 160.55  The best way to understand sealing is think:

SEALING = SHIELDING

Non-criminal (violations, traffic offenses) are generally shielded from view by the public, and businesses (corporations). Generally means just that, if they knew the city, town, village, and they knew the court, they that you did something there, they would have to go to that specific court to get a record of your violation there.

Now to the statute:

Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings (what a mouthful that is).

Quite simply,

1.  Upon  the termination (final sentencing) of a criminal action or proceeding against a

  person by the conviction of such person of a  traffic  infraction  or  a

  violation,,,

  the clerk of the court wherein (where it happened)

  such criminal action or  proceeding  was  terminated  shall  immediately

  notify the commissioner of the division of criminal justice services and

  the   heads   of  all  appropriate  police  departments  and  other  law

  enforcement agencies  that  the  action  has  been  terminated  by  such

  conviction. 

Upon receipt of notification of such termination:

    (a)  every  photograph of such person and photographic plate or proof,

  and all palmprints  and  fingerprints  taken  or  made  of  such  person

  pursuant  to  the  provisions of this article in regard to the action or

  proceeding terminated, and all duplicates and copies thereof,  except  a

  digital  fingerprint image where authorized pursuant to paragraph (e) of

  this subdivision, shall forthwith be, at the discretion of the recipient

  agency, either destroyed or returned to such person, or to the  attorney

  who represented such person at the time of the termination of the action

  or  proceeding,  at  the address given by such person or attorney during

  the action or proceeding, by the division of criminal  justice  services

  and  by  any police department or law enforcement agency having any such

  photograph, photographic plate or proof, palmprints or  fingerprints  in

  its possession or under its control;

    (b)  any  police  department  or law enforcement agency, including the

  division of criminal justice services, which  transmitted  or  otherwise

  forwarded to any agency of the United States or of any other state or of

  any  other jurisdiction outside the state of New York copies of any such

  photographs, photographic plates or proofs, palmprints and fingerprints,

  shall forthwith formally request in writing  that  all  such  copies  be

  destroyed or returned to the police department or law enforcement agency

  which   transmitted  or  forwarded  them,  and  upon  such  return  such

  department or agency shall, at its discretion, either destroy or  return

  them as provided herein;

    (c)  all  official  records  and  papers  relating  to  the  arrest or

  prosecution, including all duplicates and copies thereof, on  file  with

  the   division   of   criminal   justice  services,  police  agency,  or

  prosecutor's office shall be sealed and not made available to any person

  or public or private agency;"

Destruction of photographs (mug shots), prints, official and criminal records.

Lastly, are they (the records) really destroyed and/or returned?

Yes and no. They are supposed to but to satisfy the future potential governmental needs (requirements)
they are NOT really destroyed fully.

The real question is will they (the records) still exist? 

There is a copy still there as I mentioned above. Shielded (sealed) but not gone.

ALL THE BIG IF'S

If you apply for a gun permit they will be seen, if you have any future criminal activity they will probably be seen by the government prosecutor, or if you are placed on parole release or probation release from a future crime they will be seen.

(d) the records referred to in paragraph (c) of this subdivision shall

  be made available to the person accused or to such  person's  designated

  agent, and shall be made available to (i) a prosecutor in any proceeding

  in  which  the accused has moved for an order pursuant to section 170.56

  (marijuana ACD) or 210.46 of this chapter, or (ii) a  law  enforcement  agency  

  upon  exparte  motion  in any superior court, if such agency demonstrates to the

  satisfaction of the court that justice requires  that  such  records  be

  made available to it, or (iii) any state or local officer or agency with

  responsibility  for  the  issuance of licenses to possess guns, when the

  accused has made application for such a license, or (iv)  the  New  York

  state division of parole when the accused is under parole supervision as

  a  result  of  conditional  release or parole release granted by the New

  York  state  board  of parole and the arrest which is the subject of the

  inquiry  is  one  which  occurred  while  the  accused  was  under  such

  supervision, or (v) the probation department responsible for supervision

  of  the  accused  when the arrest which is the subject of the inquiry is

  one which occurred while the accused was under such supervision

They will generally NOT be seen (they are shielded) by the public company, organization, or a private investigating agency. Don't need to be listed on employment applications, etc.


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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Cortland DWI Lawyer Can You Be Charged with a DWI While Sitting in a Parked Car?

New York State law is not always simple or clean. It can be complicated only because we tend to "mince" words. This is especially true within the area of DWI law. Clearly we must have an agreement for what every word or term means if we are going to charge OR defend criminal charges.

NYS DWI is a criminal (misdemeanor) level offense as opposed to New Jersey where you get a civil traffic infraction. A mile over a bridge and the nature of an offense becomes crime. Life is truly unfair but those are the rules.

The BIG D in DWI 

Hint: Driving = Operation

Can the government (the DA, the prosecutor) prove the "D" in New York DWI when a car is in fact parked. Not just prove it but prove it beyond a reasonable doubt?


A critical element with any NYS DWI case is whether there was in fact the "D" as in Driving. Under NYS DWI law Driving really means "operating" and the difference between the two words (terms of art) is crucial.

For direction on this question we look to what a NYS judge will give to a jury for guidance on this issue. BTW Operate is a much broader term than drive under New York law.

The DWI NYS Jury Instruction for operation

 " A person operates a motor vehicle when that person is (found) sitting behind the wheel of that motor vehicle for the purpose of placing it in motion, AND when the motor is running, OR even if it is NOT moving when the engine (motor) is running."

Your intent (purpose) of being in the car is very important to the question of whether you are in fact operating the car (or plan to). The prosecutor must prove this INTENT beyond a reasonable doubt by the facts present.

A recent NY DWI case with a parked car, People v. Ramsey 2012 NY Slip Op 50672 decided on April 16, 2012 Supreme Court, Bronx County, the Court decided that operation (driving) was not found (no intent) based upon:

1. car parked legally,
2. car was off (ignition turned off)
3. Key in only for purposes of playing CDs (music)
4. police testimony failed to show ignition was engaged, assumed it was for music to play
5. car was never moved

The Supreme Court concluded that there was in fact no evidence of car movement or intent to move the car from the location it was parked. Defendant's right to privacy (4th amendment) was violated. Court determined that the police lacked Probable Cause, thus the Suppression of evidence of breath test and DWI case is mute.

Regarding operation of a car, See case of People v. Dalton, 176 Misc 2d 211 (2nd Dept., App Ter,. 1998). If DWI case, parked car, and ignition is NOT engaged see People v. Haddock, 2001 NY Slip Op 40138U (Nassau County).


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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Lawyer Got Proof? Ithaca is the Birthplace of "the" Sundae

Well my little Ithaca made Google. Celebrating the birthplace of "the" sundae, Google symbolized the birth of the sundae 119 years ago in Ithaca, New York on their homepage. Ithaca being the definite article, and not some poser wanna be like Two Rivers, Wisconsin which has also made the claim.

So me being an Ithaca Attorney ask "So how does anyone really know anything?"

Why it's in the proof of course. Can we prove it? How can be we prove it? My home was built in 1889. Just three years before the birth of the Sundae in 1892. How do I know my home was built in 1889? Because I looked up the original paperwork, at the local Courthouse, and the documents are from 1889.

How do we know that the sundae was born here in 1892? Because there is an Ithaca newspaper advertisement for the sundae showing a picture of a cherry sundae in all it's glory.

It's called documentation folks in Wisconsin, look it up!

link to copy of sundae newspaper ad:

http://www.gadgetsandgizmos.org/google-doodle-celebrates-119th-birthday-of-the-ice-cream-sundae/



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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

How to Deal with Ithaca DWI Fears and Concerns?

FEAR is head stuff 
from bcmlife.net

My life history was one loaded with fears. As my mom said, "you were even afraid of your own shadow."

Growing up a buck toothed, curly haired, short, poor, uncoordinated, and husky child in Brooklyn I dreamed of being the star quarterback, or the blonde blue eyed, tall, rich kid. Adding to this mess my dad died the day after my 17th birthday, can't anyone get a break?

What stories are you telling yourself?
from dancingwithhappiness.com

MY FEARS: I was afraid I would never amount to much;
I was afraid I would always be wanting but never having;
I was afraid I would never meet that special someone I could share a life with,
fear, fear, and still more fear.

During my school days I would drift off, there but not there. I was that daydreamer the teacher yelled at. Dreaming of better things.

Living with fear and anxiety is a daily struggle for a great many people. I'm not here today to tell you I got it all solved or I have all the answers but I will tell you this, I have studied, learned, seminared, read, and worked on myself over the last thirty + years. I believe if I can do it then You can better yourself, you can succeed, and you can choose to deal with things in a healthier way.

FEAR as Motivator

Some attorneys as well as other professionals (clergy, teachers) use fear as motivator. They scare people into hiring them, and accepting their stories of your predicted future.

They tell people, "If you don't hire me you are in for even more pain." What a great way to deal with people? What a recipe: Take people who are already afraid and add kerosene to the fire.

I do not choose to play that game. If anything I look to turn down the volume and bring some certainty even to those who do not hire me.

Do I do this because I am a good guy? No.

MY PHILOSOPHY = HOW I CHOOSE TO LIVE LIFE AND PRACTICE LIVING

I do this because I believe if I put out crap I get CRAP back, it's very simple.

It's a big universe, and I do not want to throw out any horrible boomerangs. Maybe I'm wrong but I believe in the totality of all of it we are compensated. I have seen so much over the course of my life. I feel lucky because I now see that every problem I have ever had was a gift. I am who I am and what I am because of my failures, my faults, and my voids. In fact MY FEARS and my overcoming them with courage. Not eliminating them but facing them, as should you.

Fear, the False Idol (that some make into a G-D)

Fear can be defined as false evidence appearing real.  We can exaggerate or minimize anything. In our minds we choose how we see things or view them. Life is more perspective than anything else. If we choose to see something as devastating, then it is. OR we choose to see it as a bump or a challenge, it is all a choice. Our own personal heaven or hell is usually of our own making.

What is true Responsibility?

RESPONSE - Ability is our ability to respond to things in a healthy way. I can choose to respond with anger or with activity.

DWI Arrest Fear:

The truth is that if you are arrested for anything (including DWI) it is stressful because of what you don't know. You are in the dark to a large extent. So many questions without answers is not a great place to be.

Will you go to jail? Will you be placed on supervision? Will you have to do a drug program?
Will you lose your license (privilege) to drive? Will you lose your job? Will you never get a job?
Loss, loss, and more thoughts of loss. Questions without immediate answers can be troubling.

Criminal charges mean you are accused of doing something wrong. Something against the rules (laws) of a particular state. It is kinda like the TV show Survivor in which the tribe has spoken and you are now banished. Some first feel guilty, then anger, then denial, then bargaining, then acceptance, running over and over through the cycles. I wrote (see blog) about this years ago.

http://ithacadwi.blogspot.com/2009/04/how-to-deal-with-grief-of-dwi.html

I likened it to the Cycles of Loss one experiences after any bad news, from Cancer to Death to Divorce to an Injury.

First, YOU MUST Break the Cycle. 

1. Determine (decide) this is NOT the end it is a NEW beginning.

If you think this event is one sided (all bad) you are doomed from the start. This idea you have of all bad and no good will literally bury you. One of the healthiest beliefs I have ever adopted is that everything has TWO SIDES. All are blessings and curses. You can believe in fantasies all day long. This is the reality, take a good look at the lives of the majority of lottery winners, hollywood stars, and A-listers and realize it ain't all a bed of roses. Money, fame, and success bring with them a host of other issues. Sudden and meteoric rises have fast and furious falls. You will balance yourself or life will most certainly balance you. Staying humble and grateful for everything is not easy. Life is a great series of challenges. Life is a school so Learn from all of it.

How do you do this? I think best by writing stuff down. Write out "how" this life challenge could help you. Yes, an arrest or for that matter any contact with the legal system can help balance you out. Life is all about equilibration. If you are not balancing things out, a sickness/illness, a divorce/breakup, a legal problem, or a financial issue will come into play and force you to stop and make a change.

In my Chiropractic practice I saw many people who were burnt out, ie. those working too hard, too long, and with crazy hours. Weakened (stressed) bodies and minds get sick. They were soon flat on their backs (literally and figuratively). They found that getting sick made them rest and reflect.
Be proactive. Taking action on your situation gives empowerment.

I have seen relationships come together after a DWI arrest and also quickly break up after a DWI.
I have seen people get ultimatums from family and friends after a DWI.
I have seen people totally change friends, lifestyle, jobs, careers, and school after a DWI.

NONE of this is good or bad. Get it, it just is. Life is change.
What a legal issue does is catalyze change. It Forces you to make a change (s). Sometimes until this "bad" event you are just in a low level of misery. Or you are just going day to day lying to yourself. How many of us live day to day with maybe one day or someday I'll do x? Or it's not so bad, just another couple of years?

You want to know who your friends are? Go through something bad, everyone wants to be around you when things are smooth, when you make a mistake, who is still there? What a legal issue also does is clarify. It gets rid of all the BS. Who loves you? Can you even love yourself with all your mistakes or problems? Because if you can then you are a healthier person than those who can not.

Second, Move!

2. BE pro-active. Sitting on your ass is not the answer unless you have been standing for awhile. Get a plan or make a plan. I give my clients plans, and then things to do. Taking action is a cure for most ills. We are designed to move and be dynamic. Stagnant pools of water breed disease. Inactivity is usually a bad response to most things.

Activity may involve getting paperwork together. It may involve dealing with a license, the DMV, a car, or a job. It may involve preparing for a change. There is nothing like being prepared to meet a challenge head on. Having the right paperwork at the right time is priceless. It just feels good to be and feel ready.

FINAL CHOICES

If you do not agree with any of this I respect your right to have another opinion. You are entitled to hold onto to your beliefs until your dying day. Many (in fact the majority) live with beliefs that do not serve them, or anyone around them. Sometimes being right is more satisfying to people than being healthy and fully functioning. In my mind success is not a thing or a place or a position, success is really a mindset.


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

What's the Importance of a Discovery Demand in a DWI Case?

GOOD LAWYERS MAKE DEMANDS

Lawyers love to use common words and terms that mean different things legally.

Words like:

Brief: a legal document not your underwear
Motion: a legal request for the Court to do something but not necessarily involving physical movement
Plea: your answer to a charge not a beg or a request

So what is a DEMAND FOR DISCOVERY? 

First, Discovery is a demand for information by a person and/or party to a lawsuit.
Second, there are different types of Discovery:

In a Civil case it is the proof/documentation of negligence, and of damages.
In a Criminal case it is the evidence that the government/state/prosecutor plans to use against you.
The evidence and proof they will use to prosecute you for crimes.

Criminal cases are broken down into those offenses that are crimes and those which are Non-crimes.
Non-criminal offenses are also referred to as Violations.

Violations can still have penalties like crimes. You can still go to jail for a violation, you can still lose your license from a violation, or lose your ability to receive Federal/State benefits from a Violation level offense. Depending upon it's nature Violations can impact you and your life.

FIRST things FIRST: Make Demands Early

In the beginning of any Defense of a DWI CASE or any Criminal Matter there Must be a DEMAND for Discovery. This should occur after an Initial Appearance (Arraignment). Sometimes this is framed by the attorney as a demand for A Bill of Particulars. This is how the prosecution (DA) plans on proving their case.

DISCOVERY can be (but is not limited to): Witnesses and witness statements, police reports, blood/breath/urine evidence, breath testing procedures, videos, audio recordings, etc.

In a Violation (traffic offense) Case the Request for Discovery is called A REQUEST (demand) for a Supporting Deposition. 

NOTE: In a NYS ticket (vehicle and traffic law) case you are only Entitled to a supporting deposition (affidavit) of the officer/trooper/deputy stating the crime (offense) they believed/saw you commit.

The Main Purpose of Discovery

1. The purpose of discovery is to see what you are up against.

2. You attorney must "discover" (UN-cover, reveal) the strengths and weaknesses of their case against you. 

Here is the beginning of my DWI Discovery Demand:

DISCOVERY

I. PLEASE TAKE NOTICE that pursuant to CPL 710.30(1), the defendant hereby demands that the District Attorney specify, in detail, particulars of the evidence intended to be offered of statements made by defendant to a public servant and of particulars of evidence identifying the defendant as a person who committed the offense(s) charged by a witness (witnesses) who has (have) previously identified the defendant.

II. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 240.20 the defendant hereby demands that the District Attorney disclose and make available for inspection,

a. Any written, recorded or oral statement of the defendant and of any codefendant to be tried jointly, made other than in the course of the criminal transaction to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him. This encompasses all statements made by defendant regardless of whether the People intend to offer such statement at trial on their direct case or on cross examination of defendant. Such statements should include but are not limited to any form signed by the defendant concerning: 1) statements made by the defendant to police officers about the physical condition of the defendant while in custody, and 2) information orally given by the defendant to police officers who have recorded it. This demand also encompasses any writing containing the substance of information given by the defendant to police officers.

b. Any police property voucher and police receipts for property containing a list of property that the defendant either had in his possession when arrested and/or containing a list of property that the police removed from the defendant upon arrest.

c. Any written, recorded or oral statement of the defendant made to a private citizen that the People intend to offer at trial either on their direct case or on cross-examination of defendant.

d. Any transcript of testimony relating to the criminal action or proceeding pending against the defendant, given by the defendant or by a codefendant to be tried jointly, before any Grand Jury.

e. Any written report or document or portion thereof concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding and which was made by, or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial.

f. Any photograph or drawing relating to the criminal action or proceeding which was made or completed by a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial. This includes but is not limited to:

1. Crime scene photographs and drawings.

2. Any arrest photograph of the defendant or other photograph of the defendant which came into police custody.

3. Photographs of any lineups involving the pending case.

4. Any photographs exhibited to witnesses including that of the defendant and or other persons involved in any photo identification proceeding, whether or not an identification was made by a witness.

5. Any composite sketch or drawing attempting to depict any of the alleged perpetrators of the crime.

6. Photographs of any witnesses or alleged victims showing the physical condition of that person.

7. Photographs of police department flyers which attempt to depict any property involved in the pending case which would include but is not limited to property alleged to have been stolen during the commission of the crime or property seized from the defendant or a codefendant.

g. Any other property obtained from the defendant or codefendant to be tried jointly.

h. Any tape or other electronic recordings which the prosecutor intends to introduce at trial irrespective of whether such recording was made during the course of the criminal action.

i. Anything required to be disclosed, prior to trial to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.

j. Any audio or video tapes, computer printouts or entries, or other electronic recordings made in the course of the investigation or preparation of this case, including but not limited to communications of any kind received, sent or monitored the Office of Emergency Communications, copy of any email, voice mail, answering machine tapes or messages, dictation tapes, computer disks, CD ROMs, or any other computer records or electronic media in which such records are stored, as well as copies of any documents, tapes or other media of any nature concerning any electronic surveillance, "trap and trace" devices, alpha or numeric pager messages, telephonic or other electronic communications of any type;

k. The date, time and place of the offense charged and the date, time and place of the defendant's arrest. 

III. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 100.25 the defendant hereby demands that the defendant be provided with supporting depositions for each and every violation of the Vehicle and Traffic Law charged in this case.

IV. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 240.20 the defendant hereby demands that the District Attorney disclose and make available for inspection, photographing, copying or testing, the following property regarding the alleged violation of Vehicle and Traffic Law Section 1192:

(a) Any written report or document, or portion thereof, concerning physical examinations, scientific testing and/or experiments, relating to the pending charge of Driving While Intoxicated and made by, or at the request or direction of a public servant engaged in law enforcement activity.

The material requested should include, inter alia, if applicable, the following:

1. Alcohol/Drug Influence Report Form

2. Breathalyzer Test Record and Breathalyzer Operational Check List

3. Central Testing Unit Work Sheet

4. Report of Refusal to Submit to Chemical Test

5. Simulator Maintenance Log for Unit Used

6. Entire Breathalyzer Maintenance Log for Unit Used, including records of inspection, calibration or repair of said machine.

7 Breathalyzer Ampoule Test Record

8. Certificate held by the operator of the Breathalyzer machine

photographing, copying or testing the following property:

(b) A copy of all routine police reports concerning the instant case except to the extent that they contain legal opinions or theories which fit within the exclusion for attorney's work product (CPL 240.10(3)).

Depending upon the type of case, discovery demands can be many pages long. What is requested must be specific and detailed.

Knowing the details allows a focused challenge to the evidence or any areas of weakness.

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

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607-229-5184

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