Ithaca DWI Lawyer How 5 Minutes Can Cost You Your License?

I love NY, the New York Public Library, What a Grand Building!

You know they say "timing is everything." As long as I live and as hard as I work as an attorney to either help people keep their driver's licenses or get back their driving privileges human nature loves to rear it's ugly head. When people have a DWI or DWAI or ADWI conviction they will have to take the New York DMV DDP (drinking driver program), they will get a conditional driver's license (called a post-revocation CL), and then upon completion they will get back their FULL license.

PRIVATE Agents with PUBLIC Power

THE NYS DMV DDP: This seven week program is sub-contracted to a local "private" agency. Much like the Ignition Interlock Devices (also sub-contracted locally) to "private" agents, these people are now entrusted with GOVERNMENT POWER.

What is Government Power?

It is the ability to call you out on any deficiencies in meeting your government (Court) obligations/duties.

You are ORDERED to take the DDP (drinking driver program).
You are ORDERED to get an IDD (ignition interlock installed) on your car.
You are ORDERED to complete these requirements (1) within a given period of time and (2) successfully.

Successfully means you comply with all their directives (the course givers and installers). So these "private" agents now get to run you, to tell you what to do, and when to do it.

IIDs (ignition interlock devices)

Every 30 days you must get your IID checked and downloaded OR else? If you don't, you are reported to the County Monitor (a division of County Probation and/or the District Attorney's office) as a VIOLATOR.

What does it really mean to show up late to the DDP?

You must complete your 7 week DMV DDP. You must participate and you must be there on time or else?

If you show up late (even by 5 minutes) some of these DDP providers will LOCK YOU OUT!
Imagine if you will people crying in the halls as they come to a DDP door that is locked. Why are the crying?

Because you will have to wait another 7 weeks until that session # circles around again. As in, the sessions run consecutively (1 to 7) and any one session that is missed must be MADE UP. Which means you don't get your full driving privileges back for almost another 2 months. Think about that, your 5 minutes late for class and it will cost you 2 months of full driving privileges.

Lord Acton said it best, "power tends to corrupt" and "absolute power corrupts absolutely. Great men are almost always bad men." Dealing with prosecutors, district attorneys, and Judges over a great many years I don't always agree with their decisions but respect their roles and authority.

Ah the cost of tardiness, I can remember from all my college days, we would wait on teachers based upon their level, 5 minutes for grad student, 10 for a professor, and 15 for a doctor (phd) or something like that?

KEY TAKEAWAY

Take this stuff SERIOUSLY. Do not willy nilly play with the Ignition Interlock Device, or the private installer, or with your DDP obligation. BE ON TIME! All of it including the VIP (victim impact panel) must be taken SERIOUSLY. Did I say serious enough?

http://www.ithacadwi.com

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

Horseheads Lawyer Attends Representing the DWI Defendant in New York

From the 2012 Big Apple DWI Seminar

This past week I jumped on a Jetblue flight from Syracuse to JFK on Thursday to attend the Big Apple DWI event in NYC. I have been to it many times before but with all the new interpretations of law and the NEW DMV rules/regulations this was a MUST see event not a maybe. My first stop was out in Great Neck to have a nice Greek style breakfast with one of my mentors Medical Malpractice Attorney Gerry Oginski. Gerry is great to break bread with (actually grilled pita). He is one of the best NY injury attorneys and people I have the privilege to know. Sharing legal ideas and inspired practice knowledge with this man was an amazing start to an even better weekend. I jumped the train from Great Neck to Penn Station, fast and easy, into the city in 20 minutes.

It's 2012, and this was the first time that the Big Apple DWI seminar put on by the NYSBA (New York State Bar Association) sent their materials via pdf files. It's about time! Less books to lug home and less to encumber my leaning bookshelf. I would rather bring my Mac Air than 4 lbs of books.

I love to go to seminars, especially in THE CITY (NYC). I love to eat the foods of my youth. NYC hands down has some of the best of everything. I have traveled the world, and NY has better Greek than Greece, better Chinese than China, better Japanese than Japan, well I think you get my point. So this kid from Bklyn took in a Broadway show with Pacino (yeah, Al Pacino), Glengarry Glen Ross, and ate some real deli and pizza. What a day! I love America!

Ben's Deli, absolutely amazing Corned Beef and Pastrami

Gotham Pizza in Chelsea, they use cornmeal in the crust

Old Ideas and New Perspectives

I always manage to learn something new and more importantly gain new perspectives on things I thought I knew. I've been going to this one since 2006, and even some of the same materials and information can come with a new perspective and insight. I've read some books in my library dozens of times over my years with the same idea,as I mature I see things (read things) differently. You never stop learning, as they say if you are green you are growing and if you are ripe you rot! I like to stay in a state of greenness, greennosity is my made up term for being in a state of greenness!

Going to conferences is also an opportunity to see new places, meet new people, and take in the sites of the "big" city. Most of these get togethers (practically all the DWI ones) do not occur anywhere near to Ithaca, NY or the Fingerlakes region. They are in places like Albany, Rochester, and NYC.

The two main speakers were Peter Gerstenzang and Eric Sills, they are the authors of New York's main DWI bible. It is recognized by almost everyone (including judges) as a reference book. As Peter liked to joke he is "highly acclaimed" and a gracious man to boot.

The New DMV Rules/Regulations 

Recent changes were made to the DMV license rules for "Persistently Dangerous Drivers" (multiple DWs, Serious Traffic Offenses) with lifetime look back periods. These new REGS look back (retroactively) upon the persons lifetime of driving because the DMV keeps a "lifetime" record not merely the 10 year driver's abstract that you can request for $10. It used to be the look back was the 10 year time frame, then a 25 year time frame, and now we are looking back over a person's life history.

I am left to wonder:
Is this a sign of the times? Is this going to be a trend? A dangerous direction to hold things against people for a lifetime, and scarier still things they did in their immature youth.

1st BIG Idea: You Must FOIL  

Going to the DMV and requesting your record is not going to be enough these days. You are going to have to FOIL request your lifetime record with the DMV in Albany, NY.

Freedom of Information Law (FOIL)

New York State’s Freedom of Information Law (Public Officers Law §87 et. seq. ) allows members of the public to access records of governmental agencies. FOIL provides a process for the review and copying of an agency’s records. More information about the Freedom of Information Law can be found at: http://www.dos.state.ny.us/coog/foil2.html.

Most people either don't know or can't remember what happened to them last week let alone 25 years ago. DO a FOIL Request 1st!! Get your COMPLETE LIFETIME RECORD. This is always the best starting point. 

Most of what the NYS DMV rules/regs are about are those currently revoked and are looking to get back a driver's license. 

What is unspoken and unwritten (kinda between the lines) is that those with significant histories (either DWs or serious traffic offenses) are one step away from  a permanent lifetime revocation for ANY traffic violation/infraction they will incur in the immediate future. 

2nd Big Idea: The Potential Magic of the Coram Nobis

Sometimes a prior driving history can be re-opened with a Coram Nobis Motion. A Coram Nobis is a Motion to Vacate a prior plea of guilty to some offense. This may be the dividing line between getting a license, losing a license, or never getting a license. Because prior cumulative points, 20 points in 25 years or high point violations (those with 5 or more: like passing a school bus, high speeds, reckless) will count as 

SDOs (serious driving offenses). 

The interpretation of all the new regs is tedious and somewhat complicated. he main point is to get your driving history and review it as to total points, total offenses, total DWs, and timing/dates.

Sometimes it Begins with Correcting the Past

Believe it or not sometimes the Courts write in the wrong dates, the wrong offenses, and a review of the windows (10 year, and 25 year periods) is vital under these cases. 

Remember that the Date of Conviction = Date of the Plea, NOT the date of the Sentencing. Times and dates can make a difference to the overall outcome. Anyway, I could blog away on this and a million other topics today but instead I will re-organize and simply all of it first into bite size pieces.

http://www.ithacadwi.com

Lawrence A. Newman, D.C., Esq.

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

Ithaca Lawyer The Dangers of Talking with ADAs, DAs, law enforcement, and Judges

Found by Cornell
Speaking of dangerous, this is what was missing from my youth.

Many things are known to be dangerous. Skydiving, scuba diving, mountain climbing, bungee jumping..maybe that's why I tend to avoid activities that are high risk. BTW TV, going to the movies, and reading are real activities just not real active physically.

But come on , Is talking to people really dangerous? In my best lawyer voice I state, "Well it depends"

first, who are you talking to? where are you talking to them? and lastly what are you talking about?
Sometimes talking to the wrong person at the wrong time and wrong place can be worse than free falling.

Real Life Can Bite You in the Tuchas 

Imagine this scenario: you are arrested, charged, booked, and printed for something you did not do or did not do FULLY (it is a defense perspective). Now you are brought into Court in front of a Judge, he asks you how you plea, guilty or NOT guilty and you say ,,,  "guilty" OMG now what?

Well this situation I just described happened this past summer to two college girls from out of state. It was a little backwoods Courthouse with a big judge, and they were scared. With No lawyer at their side, and No understanding of the process they were cooked before they got there.  Anyway, I later entered the scene and took back their guilty pleas to their crimes (criminal misdemeanors). Remember that Guilty Pleas must always be VIK (Voluntary, Intelligent, and Knowing). Why anyone would want to plea to the ALL the charges in this type of situation is a story for another day.

The Big Who

So how dangerous is talking? Well WHO are you talking to? Are they friend or foe? Being friendly is not the same as being your friend. Remember, it's always us against them, you and your attorney are the us, and the them is (are) everyone else.

When the people you are talking to have power, authority and a job to prosecute you, sentence you, and testify against you then your talking to and with them is rather dangerous. It's the old fable of the scorpion and the frog (go read it), bottom line, scorpions have to sting, it's their nature. Very easy, just remember the noun becomes the VERB!

Law Enforcement: Enforce (the Law)
Judges: Judge
Prosecutors: Prosecute

Ever hear of the 5th amendment, Your Right to Remain Silent? Silence is golden in this situation because ANYTHING you say can and will be used against you. That is why it is not the best idea to talk directly to law enforcement, the judge, and/or a prosecutor. Generally speaking by making further admissions (statements) you are NOT helping your case. In fact in the majority of cases, further talking is going to bury you more.

Statements made to these people are noted. They will later turn around, and hit you over the head with your own honesty like a mother wielding guilt for something you did 10 years ago.

Your honesty at this stage and place (without counsel) is misplaced at best, and highly dangerous at worst.  

Lawyer as Filter

Your lawyer is your advocate but they also act as a filter. They take it all in (facts, information) and then clean it up, re-package it, and maybe explain things in a specific context. They can be neutral, objective, and unattached. The power of this lies in art and science. How you say things, describe things, and tell a story can be the difference between tasting lemons or lemonade. Your lawyer can help you carefully navigate the legal minefield of your situation.

The Guilty with an Explanation

I am in Court quite a lot and how many times am I going to hear, I am guilty your Honor BUT with a explanation. When you start explaining anything you are done, as in fully cooked. Explaining yourself out of trouble is an ineffective strategy. WHY?

You have been charged, you are alleged to have done SUMTING! Either you did something you or did not do something. Usually justification (I did it because I had to) defenses are rare. Most situations that you consider emergencies are not in the eyes of the law. Bringing up your personal issues, like a death in the family, recent divorce, loss of a job, or medical diagnosis is not going to get you sympathy or empathy. Everyone has problems but they (the authorities/the government) will not place themselves in your shoes. They will see themselves as above your acts and actions.

To them your explanation is merely a nice way of excusing yourself, and nothing more. Explanation is given short drift by the majority, and will cut against you more than for your cause.

Sometimes the best thing you can do is Shut Up! Let your lawyer do their job. Allow them to be your spokesperson, your advocate, and your indirect line of communication with the Court, the authorities, and the prosecutors.

http://www.ithacadwi.com

Dr. Lawrence Newman
Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY
607-229-5184

Ithaca Lawyer What are New York Graduated Sanctions?

from crimemuseum.com

New York probation departments and the Courts love to throw around fancy terms for pretty basic things. They use plenty of acronyms, like ATI (alternatives to incarceration) or PPI (pre-plea investigation) and everyone is expected to know what they are talking about. See you at the next PTC (pre-trial conference).

Always Ask if You Don't Know or Understand

Number rule when hiring an attorney, talking with an attorney, or dealing with the Court system is:
ask if you don't know, do not assume anything about anything, ask until you are clear about the subject and the answer. I ask about the things I don't know and there is plenty I don't know. I learn new stuff every day. It is smart to ask and dumb to pretend to know.

Fancy Words versus Plain English

Sometimes things sound better when we use colorful language.

Being Incarcerated = Going to jail or prison, being locked up!
Being placed on or in Probation = Being closely monitored and supervised for years!
Getting a CD = Having to meet certain conditions (do stuff) and stay out of trouble (no new arrests)

Striving for the Appropriate

So for today, the purpose of the Court, the Probation department, District Attorney, and the Judges is to gather all the information and facts about a person and a situation and to move towards an APPROPRIATE sentence of punishment.

What is appropriate sentence for the first time DWI offender with no accident and no injuries is NOT appropriate for the second offender or the one with an accident. Leniency for those who deserve it is at the base of this idea of fairness.

This idea or philosophy is called graduated sanctions. A gradual ratcheting up of harsher penalties. They are designed to hopefully teach, assist, train, and to rehabilitate a person from their criminal activity or behavior.

Graduated Sanctions = Gradually Increasing Punishments

Does the system fail some people? yes, but I have also seen people get the help they surely needed, sometimes whether they wanted it or not. Sometimes salvation is painful. It is generally not a fun process to say the least.

The Job of YOUR Attorney

Now the job of your attorney is to bring balance to this process via input. They must actively work to ensure that everyone gets what they need to recommend and to provide an appropriate sentence.

Your Job/employment history, education, family background, drug/alcohol evaluation, treatment, etc. can all help you or hurt you. They must be a filter and a focuser of information.

The Big HOW and WHAT

They can contact probation, they can give information about you, they can guide you to do the right things, and they can advocate to the Court and to the Prosecutor. Everything can potentially count for or against you, HOW it is presented is just as important as WHAT is presented.

Larry Newman, D.C., J.D.

504 North Aurora Street
Ithaca, NY 14850

newman.lawrence@gmail.com

http://www.ithacadwi.com

Ithaca Lawyer's First Movie Review: Flight with Denzel

Attention: SPOILER ALERT

I am not a movie reviewer but I am a defense and personal injury attorney who focuses on DWI cases. So when the new movie Flight with Denzel Washington began their previews I got excited.

Excited for a number of reasons, I love Denzel, as an actor, I think he is amazing, I love producer Robert Zemeckis (of Forrest Gump fame), and I love this movie's storyline, DWI pilot saves/crashes a plane. However, you choose to spin the story, it is compelling, especially with Denzel at the wheel so to speak.

Mixed Reviews

My wife and I went to see the movie in Ithaca after reading mostly good reviews on Rotten Tomatoes, and a bunch of "iffy" ones. I am always leery of the reviews that are too positive or too negative, afterall a movie of this nature (moral content) usually compels people (even reviewers) to take sides or positions. Some reviewers thought the movie was too AA (alcoholics anonymous) preachy. I went in looking for this perspective but didn't see it that way. As anyone knows from reading my stuff I am Not pro-drinking/drugging/driving/operating planes, trains, or automobiles, that would be crazy. I am not crazy that way but I do believe that everyone deserves the full extent of the law, it's protections and it's consequences.

Different Strokes for Different Folks

I also believe that those who need help should get it, whatever works for them, whether this is AA based or something else. I have seen different programs work for different people, just like any program/idea/philosophy/methodology it must be worked, it must be believed, and it must be integrated for a long term change.

That said, I really liked this movie but I had issues with some of the legal/administrative/story proceedings and dialogue relating to the operation of a plane while under the influence, and how Denzel's character forced me to suspend disbelief on a few occasions.

SPOILERS/SPOILERS/SPOILERS

Denzel's blood alcohol concentration post-crash came back as a 0.24 BAC. 

His attorney supposedly "squashed it", as in got it thrown out. We only know the issues he pointed out on camera: the blood preservative was wrong, the lab machine was not calibrated (verified/validated) properly/timely, and the transfer of custody procedures were violated by the hospital personnel. Whether he did this by a Court motion or by a motion and Court hearing is never revealed. Poetic license, maybe?

Multiple Samples?

There would have been at least two samples drawn. One for the hospital for triage and medical treatment of Denzel immediately, and then a forensic sample. Whether either one of those samples could have presented at an administrative or civil hearing is another issue. Proof at these hearing has a lower standard than the criminal one of beyond a reasonable doubt.

What is the True BAC limits for pilots, CDL holders, and train drivers?

The true legal limit for a pilot (commercial airline, bus, train) is .04 BAC (blood alcohol concentration).

        In 1985 and 1986, the Federal Aviation Administration implemented the current version of section 91.17 of the Federal Aviation Regulations, which applies to all aircraft pilots (general and commercial aviation alike) and states in part that

        NO person may act or attempt to act as a crewmember of a civil aircraft— (1) Within 8 hours after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; (3) While using any drug that affects the person's faculties in any way contrary to safety; or (4) While having 0.04 percent by weight [8.7 mmol per liter] or more alcohol in the blood.

The movie indicated that a .08 BAC is the criminal limit. It is BUT not when you are driving/operating/flying as a "common carrier" and this standard is even less if you look at the the Federal law above. NO alcohol within 8 hours of flying a plane or even being a "crewmember" of a plane. Zero Tolerance is the law.

Denzel drives drunk with impunity?

In the movie much time is spent watching Denzel battling his alcohol addiction. He is driving and drinking, drinking and driving, in short violating law and order at every turn. Yet, he visits his ex-wife and son unexpectedly, who then calls the police because he is angry and inflamed, they arrive, his car is parked at a fire hydrant, the press arrive, and he is completely sloshed, and he is NOT arrested for DWI/DUI?

Instead we hear that the police escort him to a safe place. This has to be a movie because in real life people get arrested after driving drunk.

Well even after all of that I still loved the movie for the following reasons:

1. Denzel comes to terms with his lying and his addiction. He accepts responsibility, and the depth of his characterization of this event is astounding. His dynamic eyes and facial expressions reveal true transformation.
2. We see the balance of people's reactions and responses to the event (crash) and even to Denzel. Just like real life many people just don't know where or how to place a life changing and fatal event.
3. Act of G-d. A loaded expression or an expression loaded with emotion, where is G-d's role to play in all of this life stuff? Is there a G-d? Is this an Act of G-d? This is real and I see it daily in my practice, people trying to make sense of tragedy, to find meaning in the harsh consequences of the world's reality.

My wife and I walked away talking, discussing, and challenging one another. To me that is the proof of a good movie, now after we watched Cloud Atlas both of us were completely silent. Maybe we were so stunned by the brilliance? Or maybe something else?

Larry Newman, Ithaca Attorney

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

The Ithaca Doctor/Lawyer: Avoiding the Two Biggest Mistakes in Making a Disability Claim

from 123rf.com

I have represented, treated, and testified for thousands of disabled people over the span of 26 years. First as a Chiropractic Physician in Florida, and then as an attorney in NJ, FL, NY, and PA. I have rated them for impairment and disability, have evaluated and diagnosed them physically, and helped them obtain money to compensate them for their losses. Claims for disability can be made in many different areas, circumstances, and times. It is more common to become disabled than most people may wish to believe or think about.

Understanding TWO main ideas about disability claims will go a long way to ensure that yours is good.

First, Dis-ability means just that, UN-able to WORK at a JOB.

Disability is NOT impairment, disability is NOT your injury, disability is NOT your condition or your disease.
It is always job related or job specific. How specific a job is the first question for all claims?

Under an auto policy it just means the job you are doing prior to your car accident. So if you were employed at Burger King prior to your injury then not being able to flip burgers means you are disabled.

Under Social Security Claims the government has set a line in the sand at 50 years of age to make a job determination. If you are 50 or older (I am) then the last 6 years of your work life are your baseline "job." In other words, if you can't perform that type of work (the one from the past 6 years) you are 100% disabled. If you are less than 50 years of age (at least to the government) then "any" work you can physically and mentally do is the baseline. So being 100% disabled and being under 50 is a big deal to social security.

Under a private disability claim policy from a company you work for or self pay you must read the policy. It may specifically state what is and what is not disabled based upon time and job. Some policies are called "own" occupation, which means the occupation you are trained, experienced, and educated for. Other policies have looser definitions of work and employment. They might state "any" job, so your being trained as an engineer BUT being able to tear tickets at the local movie theater means that you are NOT disabled.

Second, Disability is NOT determined by YOU.

This is by far the biggest MISTAKE I see most people make. You cannot wake up and decide I can't work and then make a claim. Your doctors, and your healthcare providers (Physician Assistants, Nurses, etc.) MUST make that DETERMINATION.

Disability is always a DETERMINATION for a professional to make after an ASSESSMENT. Ongoing disability requires ongoing (continuing) evaluation and assessment. Ongoing claims need to be substantiated (shown, proven, validated) with SUBSTANCE (objective findings, testing, treatment, care).

That is why it is vitally important that you tell them all of your symptoms, problems, and limitations. A record must be made and kept to make any claim for compensation. They put you on or off disability. They continually monitor and evaluate you as time goes by. Making a record and establishing connections between your injuries (diseases, conditions, etc.) and your INABILITY to Function and to WORK is everything. Complete, detailed, and validated documentation of a disability claim will help everyone in the process. Giving claims examiners all the reasons for the disability and then the documentation makes your's stand up to any scrutiny or potential contest (challenge as to authenticity). In other words, is your claim REAL? Real claims have real documentation, causal connections, and continuity.

These two things are true regardless of:

Whether the claim was for personal injury disability against an insurance company for a car or truck accident.
Whether the claim was for a worker's compensation claim.
Whether the claim was for social security disability against the government administration.

Understanding these two truths about claims will help you make your claim for compensation stronger.

Dr. Lawrence Newman

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

http://www.ithacainjurylawyer.com