Using a Driver's Mental State to Disprove a NYS DWI Refusal?

Gotta Love Joaquin, from latimesblogs.latimes.com

Recently Coke launched an advertising campaign built on the power of their brand's OPTIONS. You can have your cake AND eat it too so to speak. The commercials highlighted people asking for things by using the "AND" word as a question? Clever, and a reminder that laws are written and applied using the same principle.

In the world of NYS DWI defense the word "and" has equal power and significance. Under our case law (remember NYS is a common law state) the definition of intoxication is defined, interpreted, and applied as "physical and mental" incapacity to operate a car as a reasonably prudent driver. The power of "and" strikes again.

The two prominent cases (without BACs) on how to define "intoxication" in NYS DWI are People v. Cruz, 48 NY 2nd 419, and People v. Bradford, 408 NYS 2nd 1013. Both these cases shed some much needed light on how the Courts apply this legal standard "to and in" the real world of mental and physical human conduct (behavior).

Without a BAC (blood alcohol concentration) from blood or breath a NYS DWI will need to be proved by the driver's behavior.

Three elements have resulted in convictions for DWI Refusal Cases:

1. Both have reckless driving that either resulted in an accident or could have (substantial likelihood)

AND

2. Both have inability to lack of physical coordination (inability to balance, inability to walk steadily)

AND

3. Both have lack of a rational mental state (can't answer questions intelligibly)

My focus in many Court hearings is on showing that my client was able to walk, talk, answer questions, and follow directions normally.

Rational mental state is a critical factor in disproving intoxicated operation and opening the door for a plea to impaired driving (VTL 1192 (1) DWAI Driving While Ability Impaired).

To assess my DWI cases I follow the same line of thought and reasoning as if assessing a patient's mental status. My Chiropractor days forever emerge in my proving a client's rational mental state at the time of driving, and disproving a DWI.

The Mental Status Exam

 The MSE is a clinical assessment process. It is a structured way of observing and describing a patient's (driver's) current state of mind, under the following categories:

1. Appearance (person and clothing)

Physical aspects such as the appearance of a patient (the driver), including manner of dress and grooming, and odor. Are they disheveled? Unkempt? Have they been rolling on the sidewalk/grass?

2. Attitude

This refers to the patient's (driver's) approach to the interview process and the interaction with the examiner (the police officer). Were they cooperative vs. combative, belligerent, angry? Or were they polite, respectful, and cooperative?

3. Behavior

The patient's (driver's) eye contact and gait (ability to walk). Did they establish eye contact? Walk, talk, and respond normally?

4. Mood and Affect

Mood: neutral, euthymic, dysphoric, euphoric, angry, anxious or apathetic (responsive vs reactive)

Affect may be described as appropriate or inappropriate to the current situation

Was their mood and affect normal to the police investigation?

5. Speech

Was their speed understandable and normal? This is the production of speech not the content of their speech.

Police love to state in their reports (narratives) "slurred" speech BUT was their speech unintelligible? 

Break down their speech into the following categories:

·         Rate of speech: Rapid, slow, ordinary

·         Flow of speech: Hesitant, expansive, rambling, halting, stuttering, lilting, jerky,

long pauses, forgetful.

·         Intensity of volume: Loud, soft, ordinary, whispered, yelling, inaudible.

·         Clarity: Clear, slurred, mumbled, lisping, rambling, relevant, incoherent.

·         Liveliness: Lively, dull, monotonous, normal, intense, pressured, explosive.

·         Quantity: Responds only to questions; offers information; scant; mute; verbose, repetitive.

6. Thought Process/Pattern

Was their thinking in proper quantity, tempo (rate of flow) and form (or logical coherence) of thought, retarded or inhibited thinking?

Thought Patterns

·         Clarity:  Coherent, incoherent, cloudy, confused, vague

·         Relevance / logic:  Logical, illogical, relevant or irrelevant to topic being discussed.

·         Flow:  Excited, flight of ideas, tangentiality, poverty of thought, word salad, clang associations, slow, normal or rapid reactions to questions, doubting, indecision, loose association, blocking, perseveration, spontaneous, continuity of thought.

7. Thought content

Were their responses to questions, instructions, and directions appropriate?

8. Perception

There are three broad types of perceptual disturbances: hallucinations, pseudohallucinations and illusions.

Was there any distortion of the patient's (driver's) sense of time and place?

9. Cognition

What was the patient's (driver's) level of alertness, orientation, attention, memory, visuospatial functioning, language functions and executive functions

 Alertness is a global observation of level of consciousness i.e. awareness of, and responsiveness to the environment, and this might be described as alert, clouded, drowsy, or stuporose (in a stupor, daze).

Orientation is assessed by asking the patient where he or she is (for example what building, town and state) and what time it is (time, day, date).

Attention and concentration are assessed by the serial sevens test (or alternatively by spelling a five-letter word backwards), and by testing digit span.

Memory is assessed in terms of immediate registration (repeating a set of words), short-term memory (recalling the set of words after an interval, or recalling a short paragraph), and long-term memory (recollection of well known historical or geographical facts).

Visuospatial functioning can be assessed by the ability to copy a diagram, draw a clock face, or draw a map of the consulting room.

Language is assessed through the ability to name objects, repeat phrases, and by observing the individual's spontaneous speech and response to instructions

10. Insight

Ability to understand and follow thought patterns and now where things are going. Proper anticipation and participation. 

11. Judgment

The patient's (driver's) capacity to make sound, reasoned and responsible decisions.

We as DWI defense attorneys must overcome the hurdle of dis-proving Lack of rational mental state by exploring on cross examination of the police each of these areas.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic

Attorney and Counselor at Law

Ithaca, NY 

607-229-5184

http://www.ithacadwi.com

Mixing Alcohol with Diet Beverages Can Lead to Higher BAC DWI?

Don't Blame it on the alcohol baby,,, from bartending-school.com

"I knew it wasn't the Jack but the (diet) coke that got me."

Jack Daniels or his brother Jim Beam both go well with coke but does it matter if you mix them with diet coke or regular coke?

A new study was just released that showed that those that mixed their alcohol with diet drinks had a higher BAC (blood alcohol concentration) sooner than those that mixed with a sugar drink.

Why? Because sugar slows down the absorption of the alcohol. The alcohol will stay with you longer. This is not always a good thing. I remember a bad birthday with Jack and Coke and hugging the toilet bowl, my loving room mates took pictures. That was my last mix, I swore off adding sugar with alcohol.

Sugar takes longer to digest so the alcohol rises in your blood stream more slowly. A slow rise of your BAC. see article here:

http://www.sciencedaily.com/releases/2013/02/130205162524.htm

But diet drinks have NO sugar and nothing to hold back the fast rush of alcohol into the bloodstream. Sometimes in defense of a DWI we argue what the BAC was at the time of driving not at the time of breath or blood testing. Remember it is driving WHILE intoxicated.

Diet Coke, my wife's favorite, from elitedaily.com

I believe that all this creates a double whammy of sorts for women drinkers for two reasons:

1. They will likely have a higher BAC with the same amount of alcohol as the same weight man. They have a higher fat composition to muscle based upon genetics, higher water weight = higher concentration of alcohol.

2. Women tend to drink more diet drinks than guys.

On top of all of that if they are going through their monthly cycle their BAC may also be affected by that as well. Higher body temperatures yield higher BACs with breath testing, even by a few degrees.

Just another thing to consider when we look at and investigate New York DWI defenses.

Lawrence Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law
607-229-5184

http://www.ithacadwi.com

The News Gets it Wrong or The Real Deal on David Diehl

I read stuff online all the time and so often they get it wrong. Misinformation is rampant even amongst lawyer websites. Understanding the law is confusing enough for lay people.

I really believe Diehl got a great deal because the fines on a DWI in the NFL would have amounted to $50,000 plus. Whereas the lesser offense of DWAI is non criminal, and probably not penalized the same way. Diehl got what is called an "alternative" sentence. These are sometimes given if someone has more to lose than the "average" person, as in doctors, military personnel, engineers, government employees with background clearances, etc. Is it fair? I don't know, maybe, if someone spends 10 or 12 years investing in a specialized career or profession or occupation I do think they have a lot more to lose than the guy or girl from Mickey D, that is the truth. Like it or not.

I had a Sgt. with a bad DWI, and I negotiated a special deal based upon his upcoming deployment, tours of duty, and his exposure to a huge military punishment. I thought he deserved for his service but others may argue why the special treatment. The same thing for a bank manager and a college professor. Their careers would have been over and done, a lifetime of great effort completely wasted.

So a Pro football player, David Diehl crashed his car in Queens while DWI.

He was charged with New York aggravated DWI plus plus,
meaning he had a BAC (blood alcohol concentration) over over .18
Regular/standard DWI in ALL the 50 states is .08 BAC

1. Ok, so first off, New York only has DWI (Driving While Intoxicated), we do not have DUI.
2. He got a real deal because even though he pled guilty to Agg DWI (a criminal misdemeanor) and DWAI (Driving While Ability Impaired) (a traffic offense) the Court agreed to a deal where the prosecution is going to drop the Agg DWI IF he stays clean and sober for 6 months.
3. He will be monitored by a SCRAM bracelet (which monitors skin perspiration for alcohol), three Court hearings, drug/alcohol counseling and urine checks, and NO driving during this time period.

So in the final analysis he won't lose tens of thousands in NFL fines, etc. He won't have a lifetime criminal record and he is getting the help he truly needs. That is win-win-win for everyone.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

607-229-5184
Ithaca, NY

http://www.ithacadwi.com

Ithaca Cortland Lawyer How to Humanize the Demonized

Are We Devil or Angel? Maybe we are both? 
from 123rf.com

The Problem: Is it ALL Just Black and White?

People love moral imperatives. Which are the: "this is good" and "this is bad." He is good and she is bad or she is good and he is bad. Placing these absolute labels on people, things, or events doesn't work well in the real world. In reality land (right next to reality world) things, people, and events have two sides. Blessing and curse usually come together. Our weaknesses are also our strengths and our mistakes (failures) so often turn out for the best.

Infantile minds or immature mindsets may disagree with me but I have been around long enough to see this play out. I can tell you don't be too quick to judge a thing or a person. Getting to know something or someone "fully" gives you the truth. Call it a holistic or a complete view but looking at the glass of water as half- full or half-empty is not the best approach. I don't want pessimistic or optimistic, I want realistic. The actual is the real. Labeling is not the truth. It is a perspective. A viewpoint. It is usually biased based upon your upbringing, culture, and family role models.

Are Defendants Demons?

So why are we here? Because prosecutors, judges, and sometimes even the probation department may seek to DEMONIZE (label) defendants as bad. They may forget that behind the criminal act or actions lies a person. This defendant is at their core a human being who for many reasons may have went off the track, had a lapse in judgement, and did something we would never do? OR would we?

I am being facetious now but you are starting to get my point. We are all people under the skin with hundreds of character traits. Noone is perfect, (well maybe my wife) we all make mistakes at one time or another.

How best to Defend a person? 

There are legal defenses, then there are factual defenses, and then there are equitable defenses. Why do so many people plea guilty to something (over 93%)? Because they are guilty of something. Is this a big surprise? Getting over this juror bias of guilt based upon being charged with a crime is a hurdle.

Sometimes all we (without legal and/or factual defenses) have are equitable defenses. If someone is on the second DWI or third drug/alcohol related offense, sometimes limiting their exposure to years of probation supervision or a long jail term or prison term is the big win. Sometimes getting them the help they need is the true home run.

I have used the following methods to help my clients in many Courts over past fifteen years. To the degree it is tailored and specific to the client will directly relate to it's effectiveness as a strategy, and a reality. My disclaimer: just because it has worked for me and some clients over the years is of course NO guarantee of future success but given my druthers I believe in my heart of hearts that it is a great tool in any attorney's toolbox.

The Solution to Demonization: HUMANIZE Clients Prior to SENTENCING

I believe the best way to sway and to persuade those making a decision on punishment or rehabilitation (post plea) is through STORY. Before a client is to be sentenced, the Judge needs to know this person's story.

STORY is best brought out using a SENTENCING MEMORANDUM

This is a chance for the lawyer/advocate to EXPLAIN and HUMANIZE their client:

The story has many chapters. The story has details. The story has human interaction. Everyone has a story and everyone enjoys a good story (if it is told well). The KEY here is told well. Boring people tell boring stories.

What is this person's story? Where did they start (come from)? What's their background?
What people have been a part of this person's life? What roles have they played (husband, father, son, brother, uncle, cousin, nephew)? How have they played these parts? What have these people meant in the client's life? What good things has the client done? What activities have they participated in? How have they helped their community, their family, and their friends over their lifetime? What led the client to this criminal act? What has the client done since their arrest? Have they worked on themselves? Have they gone to mental/drug/alcohol counseling/classes/workshops/therapy/treatment? Does the client have a plan and goals for their future? What do they see themselves doing in the immediate future?

STORY GOES to the HEART NOT the Head

Attorneys must do this for their clients to receive a balanced sentence. use of Client Story is the best way to influence. It is the oldest and most effective way to get to the heart of people. Therein lies the compassion we seek in those who job is to Judge us.

Justification and explanation will try to influence and persuade the head. This is a lost argument. Fair sentence don't come from logic and reasoning. They come from people being human. People are moved through emotion.

The sentencing memorandum brings a chance for humanization and compassion. Those who are accused deserve not only a second chance at redemption but also an opportunity to have their story heard for maybe the first time.

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

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.

http://www.ithacadwi.com

Mr. Magoo Syndrome: When is an Accident NOT an Accident?

from jimhillmedia.com

I field a great many phone calls daily. So much of what attorneys do revolves around the psychology of understanding how people think. How do they think about different things, how do they view (see) the world, how do they perceive what is right from what is wrong, and how do they use their internal filters to make sense of events.

People and their psychology first held great interest to me as a Chiropractor. When treating patients with illness that had psychological overlays to physical ailments. Trying to gauge the psychology of juries, judges, prosecutors, and my clients is now especially important to me as a lawyer.

Being able to counsel people legally, defend their interests completely, and to help them solve and /or resolve their problems first involves me understanding how they tick (as in tick tock).

The Professional Driver

A recent call came from a trucker. This professional driver, remember truckers are paid to drive, being a PRO means that their level of driving needs to be way beyond the average man or woman on the street. Transporting thousands of pounds of cargo over many thousands of miles every day is a recipe for disaster if they are not sharp and focused on their job (driving).

He had received an unsafe lane change ticket (violation) in on a busy New York State Highway. He was seeking representation and my legal opinion.

When someone calls me I need to first get the details of the event/incident/arrest/charges. I basically wanted to know what happened and how it happened.

One of my first questions of any traffic violation matter is "was there an accident?"
He answered, NO. Further along in our conversation he told me that he FORCED a car off the road. What? He had changed into their lane of travel, and was coming at them head on. They went into a tree but in his mind this was NOT an accident. He did not TOUCH their car. They did not DAMAGE his truck. In HIS MIND there was NO accident. I thought, WOW! The psychology of people, the depth of denial, and the shear craziness of irrational thinking.

from tumblir.com

Mr. Magoo Syndrome

I like to call it Mr. Magoo Syndrome. For those of you too young to remember, Mr. Magoo was a visually challenged (wore very thick glasses) cartoon character in the 1960s. In these days of political correctness he would never be on TV. Making fun of the blind, or the incredibly near sighted is bad. In the 1960s and 1970s everyone was open game. We laughed and made fun of everyone. Anyway, Mr. Magoo drove around recklessly causing mayhem and chaos in his wake. He was oblivious to his surroundings, his driving, and what he had caused. Funny, and oh so charming Mr. Magoo never even knew what he did (caused) because he never looked back. People got into accidents, fell off buildings, got hurt moving and jumping out of his way, and in this cartoon world NO ONE died and there was no visible blood or gore.

Touching as an Element of a Crime or Responsibility

MUST cars or trucks or people touch to cause harm?

Even if cars and/or trucks DO NOT touch one another, running someone off the road, or losing your cargo and/or causing a pile up, or forcing someone into a ditch or a tree is Causing an Accident. You are responsible for the property damage and the physical injuries IF Your negligence or recklessness causes another car to crash. You are ultimately responsible for all your commissions or omissions.

If you swing a bat at someone's head and they duck and hit something, YOU are responsible. Even if you DO NOT TOUCH Them!! If you run after someone, threaten them with physical immediate harm, and they run into the street and they get hit by a car, Guess what? YOU are responsible. You are responsible for the foreseeable consequences of your actions.

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

Ithaca, NY

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

New York DWI: Understanding the Civil (Administrative) Penalties vs Criminal Penalties

from expertbeacon.com

This is my first post for 2013. As I get older, or shall I say mature (words do matter). I did not want to just throw out bullshit just for the sake of writing something. I love to express and share but in this forum I would prefer it to be something "meaningful" as in valuable to my audience.

With all of that in mind I finally have some things to share. I have had a number of recent inquiries concerning the NYS DMV (department of motor vehicles) and their civil sanctions for New York State DWIs.

Penalties: Civil v. Criminal

First, the DMV Civil Penalties of loss of license (revocation and/or suspension) privileges, and fines, and state driver responsibility surcharges is or can be SEPARATE and ASIDE from the Court Criminal loss of license (revocation and/or suspension) privileges, and fines.

Double Jeopardy and Administrative (Civil) Penalties
 
They may overlap, they may duplicate, they may be in addition to, they may, they may, and they may. It does not violate Double Jeopardy (being tried for the same crime twice). The fifth amendment to the constitution has a clause that states you cannot be tried for the same or similar crime twice.

Your privilege can be penalized separate from your criminal level offense or violation level offense. Even if you have a license from another state or country, if you drove in NYS and violated the law you had an implied driving privilege that you have violated and now MUST be sanctioned (punished) for.

Depending on the final Court sanctions, ie. conditional discharge, ignition interlock device, probation, loss of privileges, etc. this may be confusing. The DMV may trump the Court or the Court may trump the DMV or the Probation department may trump all depending on your situation. Remember that Civil = Administrative and that your civil privileges are not the same as your legal rights.

An Example

A recent DWI case with YO (youthful offender) status (less than 19 years old) called, and wanted to know why they were not getting their license back yet. A year had passed but they had made no moves to rectify their DMV restrictions/obligations.

First they thought that the YO status somehow negated the DMV penalties. YO status merely adjudicates the criminal charge (conviction) as if it did not happen. It does not cancel the administrative (civil) penalties for an 18 year old person with a DWI conviction. They will still need to do (fulfill) all the civil penalties.

NOTE: Fulfillment of all of your Criminal Court Obligations with a Conditional Discharge does NOT eliminate or Discharge your DMV obligations. At the point of being redundant I will state this again and again. The DMV and the Court may contact one another and work with one another but they will not clean up your license privileges for you, you must check both and make sure you are clear.

A NYS DWI with New York State License Holder vs. Out of State License Holder

If you have a New York State license with a NYS DWI then ultimately check with the DIB (driver improvement bureau) in Albany for any outstanding restrictions/obligations due on your license privileges.

If you have a license from another state with a NYS DWI then potentially you will need to contact TWO DMVs. First, the DMV in your home state, and then the NYS DMV. Both will need to be cleared before you are going to have a clean license slate.

DMV Obligations Do Not Go Away on Their Own 

If you move state to state the obligation will still remain on your license record with the DMV, even if you do not have a NYS driver's license. People with a license from another state will be in for a surprise if they think "out of sight is out of mind." They will not forget you. When and if you renew a driver's license or get a new license ANYPLACE it will pop up and haunt you.

There is a NDR, National Driver Registry. I have spoke about it at length before. With all the new internet and database connectivity you cannot escape your obligations by moving to another state.

Final words,

You must be Pro-Active. Licenses DO NOT Revert to Active status on their OWN,
At the end of your case, first fulfill all your Criminal Court Obligations BUT then contact the DMV (s) and check your license privileges, are they clear?

You may need to submit proof of a completed DDP (drinking driver program), pay surcharges, and/or submit a letter requesting re-instatement of the privileges.

Lawrence (Larry) Newman
Doctor of Chiropractic
Attorney at Law

Ithaca, NY
Orlando, FL

http://www.ithacadwi.com