Ithaca Lawyer Takes Apart a DWI/DWAI Case: The Police Narrative's White Space

My future as an older, wiser man sans turban.
from smith.edu

Getting older (more mature) has it's advantages, and it's commiserate obligations. I recently had a younger lawyer ask me to assist them with a case. I told them to bring over the discovery documents, specifically the Police narrative. The narrative is really the police report. It is the detailed and specific DWI investigation. At least in theory, it should be accurate, complete, and truthful. What we usually have is a law enforcement biased perspective to support an arrest decision.

Nothing wrong with any of that, just the beginning of presenting a criminal defense challenge or challenges to their case.

I start my defense by looking at the Police Phases of the DWI Investigation one at a time:

The Driving: Do we make a stop of this car?
The Stop: Was it appropriate and safe?
First Contact with the Motorist: Do I ask them to step out of their car?
Sobriety Field Testing: What tests should I do? How did they perform? Do I arrest for DW?
Post Arrest Testing: Which Chemical tests (breath/blood/urine) do I request?

Dogs driving are "almost" as funny as cats
from Ilovechile.cl

The BIG D in Every DWI/DWAI Drugs Case

The first step I take is to look at the report for the driving. The big D as I like to say is the first key to any DW case. This is after all a DW case meaning they (the prosecutor/the police) have to have impaired, intoxicated, erratic, drunk, drugged, and/or problem driving. In this case, I pulled out our google map, and traced all the driving. The police got their East, West, North, and South all mixed up. They followed this guy for many city blocks. It went on for block after block after block and turn after turn. Guess what? The stop was for an expired inspection and registration.

My first BINGO: No bad driving, in fact no hint of improper lane changes, or bad turns, or speeding, or any erratic driving behavior. This was a DWI/DWAI drugs case with might I say, "perfect" driving.

My second BINGO: The perfect stop of the car. The police put on their "take down" lights, and there was no mention in their report of any issues with the STOP. Meaning, the car pulled over to a safe spot on the roadway, smoothly, parallel, and without issue. We call this exploiting the WHITE SPACE.

Criminal Defense Lawyers LOVE White Space too!
from white_space_by_jeffheaton.jpg

What is White Space?

White space is everything NOT mentioned in the report. All that is blank and unmentioned i.e. left out is normal and appropriate. Meaning since they did not comment in the negative, so it must have been good and positive.

More white space, the police then mentioned they requested his license, insurance, and registration. But in their report they never mentioned if he was able to produce them or show them. So another feather in my cap of innocence, he must have been able to produce them otherwise they would have harped on and on about his inability to produce these documents.

Well, that was our beginning. It even got better from there but I will leave that until this pending case is fully resolved. My legal opinion is that this is NOT a DWI case or a DWAI drugs case. This case is a complete nada for the prosecution. Except for the non-moving violations, this is a very weak DW case.

I would take this case all the way. Game on! It would be fun to have hearings, and a trial if necessary. It is a great case to defend.

Unfortunately, they don't all turn out this way. I have people who run at the mouth, who have huge BAC numbers, who get into accidents, who have drugs in their cars, go up onto sidewalks, and fall out of their cars. Those are not cases to take to trial. Long shots at best.

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

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 435 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

newman.lawrence@gmail.com

607-229-5184

Ithaca Lawyer with a College Judicial Administration Action: Is there Really a Presumption of Innocence or a Presumption of Guilt?

Sometimes it feels this way with
Administrative Actions.
from mssparky.com

For a great many years I foolishly believed that in the military you were presumed guilty till proven innocent. That military justice was somehow a world away from civilian justice. That the Courts there worked different. I thought that's the way it was in the armed forces. I do not know where I got this idea or belief but it must be part of our common culture somewhere? A great many of our ideas are completely false and erroneous.

My wife and I were raised in different types of households during a similar era. The time where children should be seen and not heard. Where little boys and girls did as their mommies and daddies told them to do. Believed as their moms and dads told them to think. As a carry over, even to believe whatever our government told us was true or not true. And Never to Question or Challenge Anything, least of all our superiors (our elders). Kinda reminds me of South Park and why I love Cartman's "Respect My Authority!"

Movies and TV of our generation were wiped clean of controversy, and of any challenge to the status quo. So much propaganda (mostly BS) it would spin your head. Looking back at that time we may laugh but in some things and places it still goes on.

The end game, raising intelligent people
from ianchadwick.com

The New Generation of Challengers

Well my wife and I raised our four children to challenge authority, to question, to confront, and to learn the truth about whatever was in front of them. This has proven to be a blessing and a curse of sorts. They confront us at every turn, and about everything. We believe it is better to be this way than to raise sheep. I do not want them to blindly follow, and to blindly believe anyone, including me.

We have a Presumption of Innocence

You are presumed INNOCENT even if "charged" with, and alleged to have committed a crime. It exists in the Uniform Code of Military Justice Courts, called Court-Martials, and the Jury Instructions of our Civilian Criminal Courts as well. It exists for all of US but is it accepted and applied in College or University Judicial Administrative Actions? Are you presumed innocent there?

Military and Civilian Criminal Courts have a High Proof Level

You must be proven guilty beyond a reasonable doubt in both these Courts. This is because you are facing the highest of punishments: threats to your life, and to your liberty.

Administrative Actions have Low Proof Levels

With ALL administrative actions, whether it's the NYS DMV threatening your license to drive a car, the NYS Board for Professional Medical Conduct threatening a license to practice medicine, or the NYS Education Department Office of the Professions threatening a license to be a dentist they will all have a civil burden of proof. This is also true for a JA (judicial administration) complaint.

Do the SUNY colleges, Cornell University, TC3, or IC (Ithaca College) have the same basic and low standard for their JAs? Unfortunately, yes.

Whatever you choose to call it, whether substantial evidence or clear evidence or preponderance of the evidence, it is a nominal standard of proof.

NOW to answer to the posed question: Sometimes it is as if you are guilty until proven innocent because of this low administrative level (burden) of proof. The bar is set so low, it is an easy hurdle. Being JA'd you may feel in a box (the container of the guilty), and you must fight your way up and out of it.

Does Probable Cause = Probably Guilty?

Remember it only takes (requires) probable cause to file a complaint against you whether in a criminal court or a civil court or any college administrative action. Somebody thinks or believes you did something. But did you? And did you truly do it to the level or to the extent they say you did? There are things by degree and severity but unfortunately administrative actions feel very black/white with no room or time for shades of grey.

PC means reasonable and trustworthy information that you did something. Is that enough to sustain the further (supposedly higher) civil burden to take a license or cause an expulsion? Do people, whether on a jury, or on a panel, somehow get this whole thing mixed up? Do they believe, Well s/he was charged (they had some info they did it) so they MUST have done something?

Take Away Advice for Administrative Actions

In any administrative action (complaint) be ready and prepared to explain, to fight, to advocate, and to present evidence to balance out the picture of not only the event but also who and what you are. Give them context, do not let them paint you black and white because you are not either of those.
If they allow you an advisor or a representative avail yourself of help. Bring exhibits, documents like pictures can be powerful allies to your position.

Do not proceed quietly to relinquish anything you have worked hard to earn and deserve. All of us are human and all of us make mistakes. Picking yourself up and learning are part of life.

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

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 435 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

newman.lawrence@gmail.com

607-229-5184

Ithaca DWI Lawyer: Going to the NYS DMV and Getting a Conditional License

I love our little, friendly, and easy Ithaca DMV!
from seattlemet.com

Yesterday I went to the DMV with one of my clients. I have counseled, guided, and written about New York conditional license privileges for years and yet being there, applying, and going through the process with my client taught me a lot. Read on to learn from my experience, and maybe be more prepared for yours.

Having Lots of Experiences 

You know it is said that "the map is not the territory." This year I went through a DWI arrest, start to finish, handcuffs and all. Nothing like feeling the back of a squad car. It isn't like on TV or in a movie. I am 5' 6" and it was so tight back there, OMG! The seat is made of hard plastic, no cushioning, for all body fluids, drugs, and whatever. I also went through another two breath test machine certifications. I discovered once again how really hard it is to blow into those machines properly to register anything. Low and slow works. The best part of those events was the drinking in the later part of the seminar, of course to then test the machines for accuracy.

It's all about EXPERIENCE

Nothing can take the place of experiencing something. This works with anything. My wife is a nurse, I like to call her the vein whisperer, as in she is the "go to" girl at her medical center. For hard patients with tough to find veins, she finds em. She has had these younger nurses pass through her place for training. These young nurses arrive feeling ready and knowledgeable until they start to try to set up IVs on real patients BUT talking about and reading about and learning about giving an IV (intravenous) ain't the same as doing hundreds of them well. They soon discover it is art and science combined. With experience comes confidence, real confidence, not fake it till you make it confidence.

This is NOT the Ithaca, NY DMV,
looks like one of my Florida experiences (nightmares)

The Ithaca DMV is best Tuesday through Thursday

So back to the DMV office. It was a great day to be there, the Ithaca DMV on 3rd street (near the bowling alley) is real busy on Mondays and Fridays with lines out the door but mid week it is a ghost town. This was a DWI (misdemeanor) refusal case that I got reduced to a DWAI (violation) but they had an out-of-state license. Remember because of their refusal to take a chemical test (of their breath) all they were going to have for one year was conditional driving privileges in New York State. In  this instance (this other state) their own DMV was doing nothing to affect their driving privileges. So in their situation they had 49 states of full privileges and NYS partial privileges.

So to get any NYS privileges they needed to do a few things:

1. Get a certified copy from their home state DMV.

You may want to look into this early in your DWI adventure. Some states only issue these from the capital or main DMV office and only by snail mail. It may take awhile to get a "certified" (signed, stamped, sealed) copy of your driving record. The NYS DMV wants a fairly recent abstract (can't be too old) to prove your home license is valid with no suspensions or restrictions. This step will be unnecessary if you have a NYS driver's license.

2. Pay New York DRA (Driver Responsibility Assessment) for that year.

Every NYS DW has a three year $250/year assessment which must be paid before you can sign up for DDP (drinking driver program) and get a conditional license. They want your money first, then you can move forward.

3. Fill out their special conditional license form.

You can put down their school location, work location, and select a three hour discretionary driving time period one day of the week. This part was kinda like an interview with the DMV person. They ask you when you want to begin the DDP classes, usually there are a few options of days, and dates.

WORK, SCHOOL PLUS MEDICAL

Additionally you have permission (privileges) to all doctors i.e. medical providers for you and/or loved ones. These can be driven to without writing down their names and addresses on this form. You should just keep proof with you of the appointments if stopped by the police. You would have to give the police a reason to stop you in the first place.

The only glich in our DMV journey was that my client lost her original Court license paperwork. Thank G-d they accepted my copy. For better or worse they know me at this little hometown DMV.

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

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 435 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

newman.lawrence@gmail.com

607-229-5184

Being JA'd in Ithaca (Judicial Administration): Advisors YES, Representatives NO

Anyone can Refer You to The JA
from ncsc.org

In my years of representing many TC3, Ithaca College, and Cornell University students I am often asked to help them with their pending JA stuff. Along with their criminal case they now have to deal with a pending violation of their school's code of conduct.

How You Get JA'd?

TC3, IC, SUNY, and Cornell all have a form of a JA = Judicial Administration. You can be JA'd (turned in) by the police, by your friends (are they really), by your teachers, by staff, and just about anyone. Anyone can lodge a complaint against you and say you violated the School's Code of Conduct. One year, I had a client with a then pending DWI whose friends called a local judge on slope day to say she was wasted.

What is the level of proof for a JA violation?

The level of proof here (for the JA) is a civil level (administrative), just more likely than not that you did something, kinda like 51% true. This is a very low level to prove. It is not the proof beyond a reasonable doubt (criminal) standard.

What type of punishments can I get from the JA?

The Court and prosecutor (district attorney) can levy criminal sanctions and the JA can levy additional punishments. These can range from reprimand to suspension to expulsion. Sometimes the worst punishment to a student comes from the JA proceedings, and not the criminal court.

Does it matter that my bad behavior wasn't even on campus?

Remember you attend school based upon a commitment to a specific code of conduct. Your "on or off" campus behavior could be viewed as dangerous to not only yourself but to others as well.

J. Criminal Conduct

Violations of federal, state or local statutes committed on College-owned or -operated property or off campus, in the discretion of the college, are considered violations of this code, whether or not such violations are referred to and/or prosecuted by public officials.

TC3, IC, and CU do not want to have risky people threaten campus safety. Many DWI and DWAI cases involve alcohol and/or other drugs like marijuana that impair mental judgment. An ongoing pattern of risky and impulsive behavior will not be tolerated by these schools.

What's the best things to do if facing a JA complaint with a pending DWI/DWAI? 

First things first: Get evaluated (assessed) for any drug and/or alcohol related problem. A NYS certified OASAS (office of alcohol and substance abuse services) would be the best one to evaluate you and write a report including any diagnosis and plan of treatment (if any). Sometimes a separate mental/psychological evaluation and report will also prove helpful to resolving a complaint.

Second, discuss with your attorney how best to present yourself at all JA hearings. I find that bringing in documentation of the incident adds weight to your story. What tickets were actually issued? What charges are currently pending? Are there any discussions of a negotiated disposition?

NOTE: Of course clear all of this with your lawyer before making any statements that could affect your criminal proceedings. 

Lastly, attorneys are only allowed to be physically present at these proceeding in an ADVISORY capacity. Anyone you bring to these hearings can only act as an advisor.

Meaning, they can whisper in your ear, and they can help you direct questions, BUT
they cannot REPRESENT you, they cannot speak for you. An attorney with a sock in their mouth is like a one armed wallpaper hanger, frustrated and helpless.

The presence of a JCC at such hearings is in an advisory capacity only—the JCC does not represent the student and make the student's case for them.

The schools usually provide you assess to a JA Counselor, who can represent you minimally at these hearings. The JAC can take part in discussions. Remember that CU (and TC3, SUNY, IC) expect you to make the majority of your own case or defense.

"as long as the major part of the case is made by the student."

The JA Counselor can at least give a summary (closing statement), which is more than a lawyer would be allowed or welcomed to do in this situation.

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

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 435 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

newman.lawrence@gmail.com

607-229-5184

When a Permit is NOT a Permission: The International Driver's License Dilemma

Is this worth anything? Fake is Fake no matter what it says!
from iadc-club.com

I live and practice law right down the road from Cornell University. Every year thousands of new students from countries and places far and wide come to Ithaca, NY to study, research, and teach.
In the first few weeks of each new school term our little NYS DMV office on 3rd street is flooded with young people desiring a NYS license and/or attempting to register a car.

International Driving Permits vs. Foreign Driver's Licenses

First, to make things clear, there is NO such thing as an International Driver's License. There is NO world or recognized and sanctioned global organization that issues an International Driver's License.
There are foreign licenses issued by hundreds of countries.

Second, a international (foreign) license and a international permit are NOT the same thing. They sound so similar, and that is what makes it all so confusing. NYS and most states have a special learner's permit (which does give privileges to drive a car). Even the Cornell website (which guides international students) has it wrong (yes, Virginia even Cornell sometimes gets it wrong).

Obtaining an International Driver's License: We suggest that you obtain a current International Driver's License (also called the International Driving Permit) in your home country, if possible, because it might avoid confusion if the police stop you while driving. 

NOTE: It should state get a foreign license and a foreign permit in your own country.

3 Important FACTS about International Permits and Foreign Licenses in New York State.

1. A Permit is Not a Permission to drive when it is an International Driving Permit.

An International Permit is primarily a TRANSLATION. It translates your foreign license into 10 different (recognized United Nations) languages. This is so when and if the police pull you over, ie. stop your car, they can then read and understand your foreign license. One of the most common police stops (motorist detentions) is for speeding. BTW It is very easy to exceed the Ithaca City speed limits.

Remember: 30 mph is the city limit, school zones are posted at 20 mph (most till 6:00PM), and Ithaca College and CU even have many 10 mph zones. If there is heavy foot traffic on Cornell Campus, slower is always better and safer. You can receive a ticket even if driving below the posted limit if the conditions are dangerous (icy/snowy weather) and your speed is UN-reasonable for those conditions.

2. You should always carry three things when driving in New York State:

Your Foreign Driver's License, Your International Driving Permit, and Your INS document (a valid I 94). The INS document I 94 is to show the date you last lawfully entered the United States. It is also an easy way for nonimmigrants to show evidence of a lawful entry to law enforcement.

3. You can legally drive a car in New York State if you have a valid foreign driver's license.

Increased tension and fear can lead to more tickets
from libertariannews.org

Why The Police Often Get it Wrong

The Police Often Give a ticket for Unlicensed Operator to foreign license holders. Many law enforcement officers (troopers, deputies, and local police) do not understand or know that valid foreign license holders can legally drive in New York state or any state for that matter.

That is WHY I recommend that you carry (possess) all of the above documents at the time of driving anyplace in the United States. Terrorist and home security fears are heightened. These days having more documentation of your legal rights and lawful entry I believe are a good thing.

Legally speaking, all you need to drive in New York is a valid driver's license (from any state or country). BUT Police will mistakenly cite, and violate many international students for VTL 509 (1) Unlicensed Operator even when they produce a valid foreign license. That is why having the translation (International Driving Permit) and the INS  I 94 can maybe can avoid that mistake.

What is VTL 509 (1) Unlicensed Operator?

The New York State charge of Unlicensed Operator is a violation level offense. It is non-criminal. 

What will happen if I ignore a VTL 509 (1) traffic ticket?

An unlicensed operator ticket MUST be addressed and handled. If it is neglected, if you do not show up to Court, if you do not answer the complaint against you, if you do not respond to the ticket THEN your driving privileges in New York will be suspended on our computer system. 

The police, the NY Courts, and the NYS DMV all share the TSLED system. The Traffic Safety Law Enforcement Division System. Driving on a known suspended license (or privilege) is a crime in NYS. That is the criminal misdemeanor called "Aggravated Unlicensed Operation." The aggravating factor is "knowledge" of a suspension (even though you are probably unaware of it). 

What are the differences between Unlicensed Operator and Aggravated Unlicensed Operation?

VTL 509 (1) is punishable by fines, NYS surcharge, and even 15 days in jail. Although, it is highly unlikely that someone would be sent to jail for this offense.

VTL 511 AUO (aggravated unlicensed operation) is a criminal misdemeanor. It is punishable by up to one year in jail.

The final big question????

When MUST you legally exchange your foreign license for a NYS driver's license?

If and when you have the mental INTENT to become a "fixed and permanent" resident of NYS then you should get a NYS license. If you (in your mind) still reside in China, or Germany, or Japan, or Korea and you have no desire (or dream) to re-locate and reside here permanently then you do not have to get a NYS driver's license. 

Finally, Being Practical (can you reconcile practical and college student?)

Now to be practical, for the purposes of renting a car, it may be far easier with a NYS license, for purposes of buying, registering, and insuring a car it may be impossible (or costly) without a NYS license.

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

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 435 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

newman.lawrence@gmail.com

607-229-5184

New York Traffic Court Clerical Error, When a Good Thing Goes Bad

Easy to Get it Wrong from cadred.com

I was listening to that Drake song, "Doing it Wrong," love them great lyrics and thought about a recent
Good Thing Gone BAD! It wasn't with my wife (thank G-d) but with a Case and a Court.

It May Not Be the End of the World BUT Why Clerical Errors Suck 

I started out representing someone for speeding through a school zone, usually this is a no win, as in nothing to do about this one. These types of tickets I always promise Nada. But in this case, and in this Court, I was able to show the prosecutor and the Judge a perfect driving record of 20+ years, a professional person with no history of anything whatever.

The Reduction from Heaven

They offered a reduction out of the school zone, and down to 5 mph over. BTW prior results don't assure future results. I was ecstatic, and more importantly my client was thrilled with this outcome.

I placed the plea offer into the Court with a letter of confirmation, signed by the prosecutor, and requested a final fine notice. I received the proper confirmation and even a final Court certified disposition. What more could I have done? I also called to confirm all of this.

Meets the Court Clerk from Hell

They still screwed up! Someone, some clerk entered it wrong into the computer. Entered the original speed (double over) and in the school zone. I found out because my client received the NYS DMV driver responsibility surcharge notice demanding a $100 a year for the next three years, yikes!

Today I will contact the Court to rectify this. Is this the first time a Court clerical error has occurred? Are you kidding? Good Things Gone Bad are a daily grind. How many people over the years have lost driver's licenses to clerical errors? Countless.

Imagine all those lost souls who just send in their tickets and money without keeping copies or proof.
Watch my Three Things YOU Must Do if You Are Going to Handle Your Own Ticket here:

That is why sometimes handling your own matter can be dangerous. Clerical errors can last for years in the system and take countless hours and letters to correct. Trouble is it seems that even seasoned (mature) attorneys can't avoid them.

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 95% 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 425 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

newman.lawrence@gmail.com

607-229-5184

Avoca Lawyer New York's High Proof Level for Speeding Tickets

People come to the Finger Lakes region from New York city and New Jersey where traveling at speeds of 85 mph and 95 mph are an everyday occurrence. This is not so where I live and practice. Most of the roads (not the interstate) are set statewide at 55mph. Going through small villages and towns the speed limits are 30 mph. People move slower here. Up here, Only I-17/86 and I-90 have the upper limit of 65mph. It is easy for city dwellers to break our limits.

As a lawyer that handles lots of speeding tickets in the boonies (let's call it what it is) of Upstate (really upstate- NOT Poughkeepsie) New York, we do have a big positive when it comes to getting a speeding ticket here: The proof level is the criminal level of "beyond a reasonable doubt." Meaning that the prosecution must prove that you were in fact speeding based upon some or all of the following:

1. A police officer must testify that s/he has experience and training with estimating speed by visual confirmation. He gauged your speed, was able to see your car clearly, explain physical markers used (a confirmed distance), timed you (clocking), and then made out an estimated speed.

2. If he used his car's speedometer, to track you and you car, that his car's speedometer was calibrated and checked prior or right after the citation was given.

3. Lastly, if he used RADAR (Upstate Troopers and Police use the Stalker Dual) then the following must be shown for a successful prosecution:

- The officer must have adequate training (this is pretty minimal-hours) and experience in the operation of the RADAR unit.

- The officer must testify as to how the unit was set up and the conditions the unit was operated under.

-  It must be shown that the unit operated with a minimum possibility of distortion from external interference.

- The unit must be tested with an external source, such as a tuning fork (s) or an actual test run with another vehicle that has an accurately calibrated speedometer. Usually they have two tuning forks, 25 mph and 40 mph, they may even check with an 80 mph one.

NOTE: One primary New York State case established the use of a tuning fork to check RADAR before and after a speeding ticket is given. In New York v. Perlman (1977) the Suffolk County District Court ruled that a RADAR device was NOT proven accurate because NO tuning fork (external) test had been performed either before or after the arrest.

A successful prosecution may also include testimony from the officer/trooper on the following:

1. Location of the perpetrator (offender) or as I like to quip, the violator, ie. the target vehicle.
2. Location of the patrol car at the time of the observation and/or RADAR.
3. Other cars/trucks/vehicles on the road or near the target vehicle.

Many states place the prosecution's level for traffic infractions with a civil standard of proof, "preponderance of the evidence," meaning a little more likely than not (a pretty easy standard).

There are also some negatives to upstate speeding tickets:

1. Part time courts with part time judges with part time staff (clerks), did I mention they are part time, it might be awhile to get your trial.
2. Night court, 7:00 or 7:30 Court begins, until ?  In many of these small towns and villages your trial may be at 9:00, or 10:00PM.
3. Judge (bench) trial that tends to favor (give credibility) to the local police/deputy/trooper.

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 95% 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 425 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

newman.lawrence@gmail.com

607-229-5184

Cortland DWI Lawyer: Energy Drinks, Burger and Fries = Fail of Ignition Interlock Device

My boys love Monster, not for me!
from twitter.com

I recently got a distressing call after a more distressing letter concerning a DWI client. The letter was from the Court, demanding our appearance (with no mention of why?). I then called him, emailed him, and with no response over the course of days then called probation. He had violated the terms of his probation by blowing alcohol into his car's IID (Ignition Interlock Device).

For background, he had a series of bad situations (multiple DWIs) and yet we were still able to reduce them to one, and he was able to remain employed and licensed. He was actively in treatment and on his way to a great recovery. So what happened? Simple Biochemistry really. BTW I have a BS in human biology (Lehninger's Biochemistry was one of my favorite textbooks).

I think I'm in LOVE, OMG that looks good,
from downtownphoenix.com

Apparently he blew into his car's device after consuming an energy drink, burger, and fries. Could that have given an alcohol reading? He assured me that he did not have a single drink and he brought the car back to the IID vendor for a check of the system.

Can Energy Drinks Cause False Positives?

They can, in an article by recognized Alcohol Expert James Wigmore he ran down the top energy drinks and their alcohol contents. In fact, many energy drinks contain small amounts of alcohol (even though they are labeled alcohol free). see article below:

http://www.wigmoreonalcohol.com/energy-drinks-and-the-iid/

So simple really?
SUGAR + YEAST = Energy + CO2 + ALCOHOL
from biochemaholic.wordpress.com

Can Food (like burgers) Cause False Positives?

I guess it's all about the bread (the bun) because the yeast can cause alcohol production. Food particles in the mouth can give false readings on IIDs. That is why the manufacturers of these units advise, as do I to wash your mouth out thoroughly with water before testing.

Follow the instructions on these devices carefully because the time and cost and potential consequences of a failure is too big to mess with. Wash (rinse) with water before any drive of your car to avoid the headache and hassle of explaining to a judge, to probation, and to an prosecutor why?


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

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 95% 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 425 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

newman.lawrence@gmail.com

607-229-5184

Understanding the New York Conditional and Restricted Driver's License

The Conditional Clearly states Conditional = ALCOHOL
from resourcetraining.org

I get calls daily from people who want to know either: what is going to happen to their driver's license or what has happened to their driver's license. It may have been suspended by the DMV, and they don't know why?

They may have a license from out-of-state, and received a suspension notice from their home state, again wondering why? Why me? Why now? What have I done? What do I need to do? Getting things straightened out (as in rectified) with the DMV begins with an investigation into the reason (s) for their suspension.

In New York State a driver's license (or privilege) can be suspended for many different reasons. Remember NYS can ONLY suspend privileges of Out-of-State holders, they can't suspend your home state license, only your home state can do that.

Here's the BIG TEN reasons for a NYS License Suspension:

Unpaid child support can get your driver's license suspended;
Unpaid tickets, Court fines, and/or DMV surcharges can get your driver's license suspended;
Three speeding tickets within 18 months can get your driver's license suspended;
11 points from various traffic violations within 18 months can get your driver's license suspended;
Driving without insurance can get your license revoked for a year;
Physical (medically related) illness and/or psychological illness can get your license suspended;
Using a false driver's license (altered or unlawful use) to obtain alcohol (under 21) can get your license suspended;
Leaving the scene of an accident with injuries can get your license suspended;
Being charged with a DWI can get your license suspended;
Refusing to take a police requested blood and/or breath test can get your license suspended.

NOTE: License Suspension and License Revocation are different. Suspensions are generally shorter, easier to terminate, and the underlying privileges to drive still exist. Revocation means cancellation of privileges. It may require classes, high fines, longer time periods, re-testing (written and/or road and/or medical), completion of rehabilitation and/or treatment for the license to be re-instated (re-issued).

What should you do after you get suspended?

Get a copy of your NYS DMV abstract, currently $10.00. Even out-of staters can get a copy of their NYS record (to see any action pending) based upon an address and DOB (date of birth). These out-of-state license holders may have even been assigned a nine digit NYS driver ID because of previous infractions (violations).

A second way to discover what is amiss is to contact the NYS DMV Driver Improvement Unit in Albany, NY. Local DMV records generally go back 10 years but Albany has your lifetime driving history. You may have issues that go back 15 or 20 years that require correction.

Driving is not a luxury for some people, it is a necessity. Is it even possible to get some type of license (privilege) while you are in a state of suspension or revocation.

Now that you know why your privileges were suspended or revoked, you have to ask three questions:

First question, are you even "eligible" for a special license (restricted or conditional)?

If the suspension is for monies due, then NO, they must be paid first.

NOTE: Some courts will not even let you pay the suspension lift fee (currently $70.00) UNTIL all the underlying tickets (citations/violations) are completely resolved (disposed of).

If the suspension is for speeding tickets and/or too many points, then YES.
If the suspension is for a DWI, then YES if you have not had a prior DWI within 5 years.

Second question, is the suspension from POINTS and/or SPEEDS or a DWAI drug conviction?

You can apply for and receive a RESTRICTED license at the NYS DMV. It is a pretty simple form. The restricted license is to drive ONLY for work, school, and medical care during the time of your suspension. Suspension periods will vary, from a low of 31 days to a high of one year, depending upon the underlying reason for it.

Third question, is the suspension for a DWI alcohol or a DWAI alcohol? 

The main word here is ALCOHOL, then you are probably eligible for a CONDITIONAL driver's license.

The conditional driver's license is ONLY for alcohol related offenses. It also gives the holder the ability to drive for treatment, rehabilitation, education, and counseling (all relating to their sobriety), and for work purposes (scope/course of employment), medical, and education.

The good news is that the DMV does not require PROOF of the job, school, and/or medical locations. The bad news is if you lie on their form (and attest by signing to it's truthfulness) you are guilty of a crime. Not a good idea to lie on any DMV applications to obtain privileges you are not legally (administratively) entitled to.

There you have an explanation of the two main types of special licenses in NYS. There is another new type of restricted license for those with multiple DWIs, a long term history of violations, multiple accidents, and many points BUT that is a story for a different day. That type of restricted would come with an Ignition Interlock for a great many years.

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

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 95% 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 425 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

newman.lawrence@gmail.com

607-229-5184

Ithaca DWI Lawyer Asks Who has Charging Power in New York State?

Our local LEOs with DWI charging power
from STOP DWI in Tompkins County Poster

I love South Park. Cartman's most famous line: Respect my authority! I think Eric Cartman understands the charging power of LEOs.

LEOs = Law Enforcement Officers = State Troopers, County Deputies, Campus Police, Town Police, Village Police, City Police and they all have charging power.

Any LEO in NYS can charge you with a crime. Some crimes (like traffic violations) they must actually witness, and others that they must have the minimal PC (probable cause) standard for. You can also be charged with crimes by the District Attorney's office. ADAs will regularly charge crimes after they gather the necessary evidence (proof)

Probable Cause is defined legally as the reasonable belief (reasonable and trustworthy information) that someone has committed a crime.

Along with this power to charge comes the ability to add charges, dismiss charges, increase charges, and also decrease charges. Police at roadside may not charge you with everything they witness, they may (in their discretion) decide to write you up for a lesser speed or for a downgraded offense. This is referred to as a Roadside Reduction.

This is significant because if you contest (challenge) what they have written they can go back, as in re-file, and up charges and/or add charges. You can sometimes look over their supporting deposition for what they actually witnessed, ie. 51mph in a 30mph zone but they wrote you for a turn signal or improper lane change.

It is also common in DWIs involving blood tests to charge you way after the stop and arrest. The charges may come months later in a letter from the DA. If they now have proof of blood alcohol and/or drugs they can charge you with an additional .08 BAC DWI or .18 BAC DWI or a DWAI drugs. If someone has been seriously hurt they can also charge you with a vehicular assault (a felony level charge). Because it involves the proof of serious injuries they usually wait to get medical records (documentation) before making their charging decision.

So the moral to the story,
be polite with LEOs but do not answer questions or make any statements.
be polite with LEOs but don't do (submit to) field sobriety tests.

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

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 95% 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 425 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.

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

http://www.ithacadwi.com

Understanding the Dangers of Challenging the New York Roadside Reduction

The New York Roadside Reduction happens more than most people realize. The police (trooper, deputy, cop) may give you a lower level ticket, not write you up for all of your conduct, or may not give you a citation (violation) for exactly what they observed.

A speeding ticket of 86 in a 65 (six point ticket) at 21 mph over the limit may be written up as a 20 mph over (four point ticket). A speeding stop of a car may be written as a failure to obey a traffic signal. I was recently consulted by a person stopped for speeding that was not written but an unlicensed operator violation was.

You have to look at the original supporting deposition to see the potential exposure. Because they can RE-FILE the original observed violation (s) against YOU. Yes, they CAN!

I have seen people try to contest the reduction only to have one of two things happen:

The DA says no deal, plead to charge or have a trial on it OR
The DA says that the police will re-file the original speed level or the ticket (s) and now you have more charges or increased charges to deal with.

This is not to say that tickets (violations) can't or shouldn't be challenged, quite often they should be, only that they need to be evaluated by someone experienced in that area.

Larry Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

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

http://www.ithacadwi.com