Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
New York state is progressive in many ways and there are NO mandatory sentences to jail, probation, or community service on first time DWI offenses.
License issues can be dealt with in a couple of ways:
1. request for a 20 day license revocation STAY (delay in revocation)
2. conditional license to drive for school, work, and medical (for you and your defendants)
3.shorten revocation from six months to seven weeks with taking of the IDP (impaired driver program)
As to jail, probation, or community service, strategy to lessen the consequences take many forms and are dependent upon the county, the probation department, type of DWI, your history, the DA (prosecutor), and and court/judge who is residing over your case.
Body and car cams (cameras) are being used by law enforcement across the country, and yet the progressive state of New York has few to none. Video can be a mixed bag. Watch this to see when and where New York police use video in the processing of an arrest for DWI.
Many states are now recognizing the benefits of legalized weed both recreationally and medically throughout the United States. Canada just went legal in October of 2018. The backlash against all this legalization is beefing up by the police of DWAI marijuana arrests. In the fight against DUI cannabis the police are now using the Drager Drug Test 5000.
Can this device screen drivers suspected of being impaired by drugs?
How accurate is this new saliva tester for drugs?
Is the Drager Drug Test admissible in a New York court of law?
This is a New York DWI case (People v. Clayton) where the driver got pulled over for speeding. The cop testified that he only used radar and that he had not calibrated the unit for six months! Speeding charge dismissed and DWI Dismissed!!
What is RADAR? = A Radio Transmitter and Receiver
Sends out a signal and receives back a signal. RADAR has limitations, and there are two sources of potential problems or error:
1. The Unit itself (was it working/functioning properly)
2. The Operator (any machine is only as good as it's user)
Remember as in all Police Testing if we can't trust the process we can't trust the result!
This video highlights on big problem area: Calibration of the Unit.
There are a great many other areas of shall we say "Inquiry."
1. Vehicle Interference Error
Did they target and focus only on your car, and no other car or moving object? Was there "traffic" on the road besides your car?
2. RFI (Radio Frequency Interference) Error
Car fan blades and moving car parts (heater or air conditioning unit), also known as mechanical interference error.
Radio signals from police radio, CB, walkie talkie, cell phones, radio, and/or any other electronic device.
Poor connections with any electronics in the car or the unit can cause electrical bleeps and shorts.
Lights in or out of the car can bring on a false reading as well.
3. Calibration by Tuning Fork
The RADAR unit should be calibrated (checked for accuracy) both before and after a speeding ticket is issued. Many law enforcement officers only check the unit at the start of their shift and at the end of their shift. This does not ensure that the unit was properly working at the time of a specific ticket (driving infraction).
If the tuning forks are too hot or too cold they will not accurately calibrate the RADAR unit either.
There are a great many areas to challenge with any ticket but in particular with a speed related infractions. In New York State the standard is for the police to prove that you were speeding beyond a reasonable doubt.
Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
Sometimes a carefully planned and executed treatment program for drugs and/or alcohol can sway the judge, probation, and the prosecutor to leniency. Knowing where, when, and how to do this is a matter of evaluating the court, the District Attorney's office, and the judge.
Pilots like bus drivers, ship captains, and train operators are professional operators with a lower BAC of .04 for DWI.
This pilot had a .34 at 7am! He argued he never operated the plane and didn't even start the engines.
The walk and turn has over a hundred little steps, so even a 97% correct is a big fail. Police criteria on whether you pass or fail field sobriety is extremely subjective. What exactly is involved in the walk and turn test? Can we defend this test just based on common sense? Read on to see how we attack the fundamentals of this rather easy test.
The Ithaca Police department is now charging VTL 509.6 for any forged or fake or fraudulent or fictitious driver's license. This is whether the license is used or just possessed.
Remember that this vehicle and traffic law (VTL) provision has no mental intent. In other words just having it, you are guilty. This is called a strict liability offense. In contrast to murder where you intended to kill someone.
The real issue with VTL 509.6 is not the charge itself or the fine or the state surcharge. The real issue is the New York DMV will suspend your driving privileges. If you are from out of state the New York state license consequences will likely reach back to your home state as well.
What if the charge gets changed?
What then?
Is it a ever a good idea to have any violation relating to fraud or deceit or lying on your history? Learn why if you're found guilty or not of the original charge what will likely happen.
This video is the second about the dangers of old DUI/DWI/OUI from any state with a New York DWI or DWAI charge. New York DMV will have a 25 year look back period from the date of the most recent offense. You will likely have to fill out (honestly) the NYS DMV form MV-47, called the Driver Disclosure. Otherwise you can be facing a misdemeanor or felony just by failing to reveal old DUI/OUI/DWI/DWAI.
When Do You Require New York DMV MV-47 Driver Disclosure Form?
Usually the NYS DMV will require your driver history from other states you have lived and/or held a driver license prior to giving you any RESTRICTED or CONDITIONAL driving privileges in New York.
They are looking to see if you have a HISTORY of ABUSE. Any two DUI/OUI/DWI/DWAI within 25 years equals a history of abuse.
Paragraph (3) of subdivision (b) of section 136.1 is amended to read as follows:
(3) History of abuse of alcohol or drugs. A history of abuse of alcohol or drugs shall consist of
a record of two or more incidents, within a [10] 25 year period, of operating a motor vehicle
while under the influence of alcoholic beverages and/or drugs or of refusing to submit to a
chemical test not arising out of the same incident, whether such incident was committed within
or outside of this state.
You Can Be Denied a New York Conditional or Restricted License
(b)(1) An [applicant] application for a driver's license [shall] may be denied if a review of
the entire driving history provides evidence that the applicant constitutes a problem driver, as
defined in section 136.1(b)(1) of this Part. If an application is denied pursuant to this paragraph,
no application shall be considered for a minimum of one year from the date of denial. In lieu of
such denial, the applicant may be issued a license or permit with a problem driver restriction, as
set forth in section 3.2(c)(4) of this Chapter and paragraph (2) of this subdivision.
You May Have a License with a A-2 Restriction (Ignition Interlock Mandatory License)
(2) Upon the approval of an application for relicensing of a person who is deemed
a problem driver under this subdivision, the Commissioner may impose a problem driver
restriction on such person’s license or permit, as set forth in section 3.2(c)(4) of this Title. As a
component of this restriction, the Commissioner may require such person to install an ignition
interlock device in any motor vehicle owned or operated by such person. The ignition interlock
requirement will be noted on the attachment to the driver license or permit held by such person.
Such attachment must be carried at all times with the driver license or permit.
The Look Back Period is 25 Years for All DUI/DWI/DWAI/OUI
(3) “25 year look back period” means the period commencing upon the date that
is 25 years before the date of the revocable offense and ending on and including the date of the
revocable offense.
New York DWI and DWAI drugs criminal charges can affect people in many areas of their life. Bringing some certainty to some of these areas can often lessen the fear and the concerns.
Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.
Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
Brandt was stopped for violating V.T.L. § 1163(b), which he argues only applies to a moving vehicle that must signal a turn one hundred (100) feet prior to turning. Where the defendant's vehicle was stationary at a red light and he signaled his intention to turn while stopped, the one hundred (100) feet does not apply. The court agreed with this and his DWI charges were dismissed.
In People v. Pallis, motorhome gets 4th amendment privacy rights.
A recent September 2018 New York State case of People v. Pallis affords privacy rights in a motorhome.
Motorhomes may be more like residences than automobiles
where they provide increase privacy and residential necessities (see e.g.
United States v. Williams, 630 F2d 1322, 1326 [9th Cir 1980]).
Vans, motorhomes, and campers maybe considered homes for 4th
amendment privacy issues. NYS finds a motorhome in Brooklyn was more like a
home and didn't permit the warrantless search by police.
The court will have to weigh the factors for or against: stationary vs. mobile
Including: hookups, intent, location, type of van, timing, and use
Many people are prescribed and take prescription medication. Just because you are "ON" a prescription drug doesn't automatically make you impaired by that drug.
Police love to pull people at 4:00 in the morning, and sometimes they even misapply the law. Imagine that. A recently dismissed New York DWI case is a perfect illustration of great defense work.
The DWI court (NY has specific DWI courts now) only had one single issue: they had to decide whether the New York State Trooper had probable cause to stop defendant’s
vehicle on the basis that defendant failed to properly signal his intention to
turn thereby violating V.T.L. §1163(b). Do you always have signal your intent to turn your car? When do you have signal your intent to turn your car?
For the record mismarked, wrongly worded, and badly timed New York police reports will not get a case dismissed or reduced. In a August 2018 DWI case of People v. Garcia, the defense attorneys filed motions to get a case dismissed based upon a lack of operation. You see the New York police report aka the 710.30 form has check boxes.
What happens if the police don't check some boxes? What happens if the police mischeck some boxes? What happens if the police misstate the times of the arrest, the color of the car, the make of the car, the model of the car, and even the streets?
Timelines or deadlines are crucial in criminal defense. The NY 45 day rule states that we have only 45 days from the date of the initial appearance with counsel in which to file our motions. In other words the clock starts ticking on our ability to keep out evidence (suppress it) within those first 45 days.
If we do not challenge any of the evidence, then the default is that it all comes in against you at trial.
A drunk woman was wandering two blocks from an accident scene. She refused the breath test. She was later found guilty of DWI after a trial. This was later reversed because of a jurisdictional defect.
What is a jurisdictional defect? How important are the charging documents in any DWI case? How can I tell if my DWI case has one?
Self representation or going "Pro Se" can be dangerous with any legal matter. Here Mike Cyr, a traffic attorney in Upstate New York gives the three main reasons why this is so.
A case of First Impression. New York allows a person on felony level probation to use medical marijuana. A big win for all medical cannabis users, and those who see it's benefits.
This is history in the making as NYS lightens it grip on marijuana use. New York city has already declared it wouldn't prosecute marijuana use in the future as it did in the past. Marijuana in my opinion is not a gateway drug. It has many potential uses medically for PTSD, anxiety, and autoimmune diseases like Crohn's and Lupus. Marijuana is not the demon many people make it out to be. I think it's has many effective uses, one of which is long term pain management.
People v. Stanton was decided in August of 2018 and I think it speaks to our time of transparency and truth. It is time to take pot out of the backrooms. I believe it is time to have open discussion of using marijuana to help those in the population who are tired of all the side effects tied to prescription medicines.
With the number of prescription drug deaths at all time highs nationwide it's time to look at other less harmful substances. Medical cannabis can be used for long term chronic illness with little to no ill effects. As this case illustrates there are many people who see marijuana as an old answer to a new problem.
New York CDs and ACDs are very similar alphabetically but are worlds apart in meaning.
Conditional discharges are the most common sentencing option across the board for anything from a non-criminal violation to a misdemeanor and occasionally even a felony level offense.
Adjournment in contemplation of dismissal is where the judge and prosecutor agree to set aside (delay), adjourn if you will your case while they (contemplate) think about dismissing it.
With a New York CD you are most definitely convicted of something.
With a New York ACD you are most definitely NOT convicted of anything.
Both have terms and conditions.
Both have time periods to compete those terms, conditions, and/or obligations.
CDs are usually one year in duration but can be two years max.
ACDs are usually six months, and sometimes can be a year in duration.
IIDs (ignition Interlock Devices) and DWI go together, well like rice and beans. But knowing the most common way most people violate could save you or loved ones aggravation down the road.
New York has mandatory IIDs since 2010, and this was updated to one year IID in 2012. People that have been sentenced to a New York DWI under ANY VTL 1192 sub section except (DWAI drugs) will have a mandatory condition in place.
VTL (vehicle and traffic law) 1192 is the DWI section of NYS law.
This mandatory condition is called the A2 license restriction by the NYS DMV. It means you can only drive a vehicle with an installed ignition interlock device or IID. This condition is usually ordered for 12 months and you have the option to petition the court for removal after 6 months if you have no issues (failures) with the IID.
This condition never goes away based upon time. Could be there 20 years later.
This condition never goes away based upon circumstance. You don't own a car, you don't have a license, you live in another country.
This condition never goes away based upon finances. You don't have any money, NYS will subsidize your IID.
This video highlights the number one way we see people who violate an IID.
Upstate New York has lots of little towns with many speed traps. The top speed limit is 65 mph and the NYS troopers show no mercy in this regard.
Steuben County is beautiful this time of year but don't be distracted, your speed can get away from you. This part time court with part time judges can often be difficult to communicate with.
Have your tickets evaluated and explore your options with a traffic attorney before you decide to do anything. Quite often out of state people can be represented without any court appearances.
Newman and Cyr is a boutique DWI and traffic defense firm
located in Ithaca, NY and serving the Finger Lakes region.
Insufficient facts can get cases (and their charges) dismissed. This is Law 101. First thing, review the allegations they are making out against YOU. Look at all these facts carefully. They should be non-hearsay, not conclusory, and if true would make out the elements of the crimes charged.
Police need to allege facts that support their charges against you.
If not, if they are facially insufficient your attorney can then move to have them dismissed. Motions to dismiss are granted by judges when there are not enough, poor, bad, or unclear facts.
What is Facial Insufficiency?
Every crime has elements that must be met for you to be proven guilty. Some crimes require INTENT. That you intended to destroy property or that you knew that your driver's license was suspended. Some violations require a PUBLIC element. That your behavior caused a public disturbance.
The prosecutor and the police must set out these elements in their complaint or information against you. If the allegations do not support the crime, if they do not meet the prima facie burden, then you can move to dismiss the charges against you.
Charges that require INTENT can't stand up against you without INTENT.
Charges that require serious damages must have them alleged in the complaint against you.
Charges that require a public highway or road must allege the road or highway.
Quite simply a Prima Facie case needs prima facie evidence, evidence on it's face (at face value) without further interpretation or inference that you in fact did something and as if everything alleged were TRUE.
A recent July 2018 New York case of harassment and criminal mischief faced just such a challenge.
In People v. Toro, a guy hit his girlfriend, her phone went flying and broke. Police charged harassment and criminal mischief.
Toro plead guilty to the crime of criminal mischief in full satisfaction and went to jail. While in jail his 2nd attorney filed an appeal based upon the information's facial insufficiency to support the crime of criminal mischief. Toro had not intent to damage the phone, none was made out in the information against him. The first attorney may have missed this on reviewing the evidence against Toro.
There were no allegations that Toro intentionally damaged the phone.
There were no allegations that Toro had a mindset to damage the phone.
There were no allegations that Toro had conduct that showed he wanted to damage the phone.
Toro only wanted to hit his girlfriend, so maybe harassment charges (a violation) were supported by the facts but NOT the crime of criminal mischief.
The second judge dismissed the criminal mischief charges and Toro was released from jail after serving two weeks of his sentence.
Always read any complaint or information against you and see if it makes out the elements of the offense charged. Always have your attorney make sure that all the facts (non-hearsay) if true would in fact make out the charges.
The conditional discharge is the most common sentencing option in New York but if you violate you are then re-senteced. The judge can re-sentence to jail, probation, or a combination. This video highlights the various ways to violate a NY CD.
This ways you can violate a CD include many extras with a drug or alcohol based offense. In many DWI and DWAI drugs case the CD is a great end result because you self monitor and self supervise your obligations to the court.
New York State Probation on a misdemeanor DWI can be hell on Earth because you are regularly tested for alcohol and/or drugs.
For the average adult person to be so restricted is difficult to impossible. You give up many of your constitutional rights to privacy and person. You will be subject to many unreasonable rules.
I consider New York probation as having a parent with power over you. Generally parents lose control over you after you turn 18. They may influence you but have NO true power. Probation departments through out New York state run the gamut from easy to extremely hard on their probationers.
The most common New York sentence is the conditional discharge. It is most commonly given for one year, and has a specific set of terms and conditions. A CD in NYS is like no other, so don't try to compare CDs from anyplace else. It happens after you are convicted. Think of it like probation without a probation officer to check up on you. You monitor and supervise yourself to complete and perhaps provide proof of completion of obligations.
For a DWI CD, it may mean you need to complete the Impaired Driving Program, have an IID (ignition interlock device) on your car, and stay out of trouble for the year.
If people get into trouble in that one year they can be brought back to court and re-sentenced on their charge. The new sentence can include jail and/or real probation (with a probation officer).
But what does it mean to stay out of trouble with a NY CD?
NO new arrests (legal arrests)
NO new criminal charges (misdemeanor or felony)
NO new charges relating to higher level violations (harassment, disorderly conduct)
NO new charges relating to drugs and/or alcohol (Unlawful possession marijuana, public intoxication)
By itself a moving violation or speeding ticket will NOT usually violate a CD in NY. But if you receive along with that moving violations other charges, these may violate.
Reckless driving is a misdemeanor (crime) in NYS
AUO (aggravated unlicensed operation) is a misdemeanor or felony level offense as well
These will violate a CD. Discuss your situation with a local lawyer to weigh your options with any conditional discharge violation.
The most common New York sentence is the conditional discharge. It is most commonly given for one year, and has a specific set of terms and conditions. A CD in NYS is like no other, so don't try to compare CDs from anyplace else. It happens after you are convicted. Think of it like probation without a probation officer to check up on you. You monitor and supervise yourself to complete and perhaps provide proof of completion of obligations.
For a DWI CD, it may mean you need to complete the Impaired Driving Program, have an IID (ignition interlock device) on your car, and stay out of trouble for the year.
If people get into trouble in that one year they can be brought back to court and re-sentenced on their charge. The new sentence can include jail and/or real probation (with a probation officer).
But what does it mean to stay out of trouble with a NY CD?
NO new arrests (legal arrests)
NO new criminal charges (misdemeanor or felony)
NO new charges relating to higher level violations (harassment, disorderly conduct)
NO new charges relating to drugs and/or alcohol (Unlawful possession marijuana, public intoxication)
By itself a moving violation or speeding ticket will NOT usually violate a CD in NY. But if you receive along with that moving violations other charges, these may violate.
Reckless driving is a misdemeanor (crime) in NYS
AUO (aggravated unlicensed operation) is a misdemeanor or felony level offense as well
These will violate a CD. Discuss your situation with a local lawyer to weigh your options with any conditional discharge violation.
I've known Scott Miller even before he was Judge Scott Miller. In my opinion no one in Ithaca, NY is better suited to be Ithaca City Court Judge. He cares about doing a great job. That is why he reviews his cases in advance of court, asks questions, and takes an active involvement in the process. He is certainly not a rubber stamp judge by any stretch of the imagination.
Lots of calls about how to get a license after a DWI refusal
I have spent way too many hours going over and over the same things with DWI refusal callers. I make these videos to bring some clarity to how the DWI refusal in criminal court is separate but yet so important to the licensure. New York Refusals are not illegal but they do have consequences.
The New York DWI refusal is unlike any other state. In some states the refusal itself is a crime with separate penalties. Written into the New York legal statute is a very important piece of information. Two penalties with the breath test refusal: one year license revocation (New York) and consciousness of guilt instruction from judge to the jury. That is the reason for your refusal (they can infer) is you were conscious of your own guilt. And one other provision that many people know nothing about.
The New York DMV allows NO license UNTIL a plea to a VTL 1192 Offense
You will not get your license or license privileges back UNTIL your criminal case is completed, and has a plea to a VTL 1192 offense. The 1192 offenses are either:
DWAI alcohol VTL 1192 (1) Driving while impaired by alcohol
or DWI alcohol (common law) VTL 1192 (3) Driving while intoxicated
This plea of guilty to one of these can be by three means:
1. bench trial with the judge (non-jury trial)
2. plea bargain with the prosecutor (either the DWAI or DWI)
3. jury trial
Trials with DWI refusal cases are generally better to defend because there is NO BAC number.
The prosecution has NO blood or breath blood alcohol concentration to hang their case upon. So the whole case hinges on the police testimony (opinion) of law enforcement. In some cases with witnesses they can testify as well either to your sobriety or intoxication.
All DWI common law (opinion) cases are a matter of degree.
In other words what was the degree of your impairment by alcohol? Were you merely impaired or truly intoxicated by alcohol. That is the million dollar question.
California and other out of state license holders have to be made aware of the challenges of dealing with a New York DWI. Administrative (license) penalties can be double. There are things you can do to lessen the problem.
California is notoriously slow when dealing with any car related matters. SOURCE: my son sold cars out there for many years. Getting a tag (plate) for your car is ridiculous (many, many months).
So first thing I tell anyone going through a New York DWI with a California license is, get your certified = official CA driving record as soon as possible. It has to be ordered by snail mail or you have to walk it through.
People who are residing in New York state should make this request because New York will not give you a conditional license (school, work, medical) without showing a fresh (recent) certified abstract showing nothing is wrong with your California driver's license.
New York conditional discharges are the most common sentencing disposition so why are they so confusing. This video destroys the three main myths about CDs in New York.
The three most common myths about Conditional Discharges:
1. Conditional discharges do not dismiss any of your criminal or non-criminal charges.
The court outlines a set of conditions or obligations which must be performed. These will usually have dates assigned for completion. The judge may require proof that you went to classes, did community service, paid fines, got a drug/alcohol evaluation, went to therapy/treatment, or other condition.
The discharge is a release from your obligations with the court.
2. Conditional discharges do not seal any of the charges.
The public will be able to assess your records. They will show up on background checks. The only way to seal any criminal charges is by filing a sealing motion (after 10 years).
3. Conditional discharges are not forever.
The CD has a specific period of time, usually one to two years from the date of sentencing. This is a general stay out of trouble or do not get re-arrested for anything.
Conditional discharges can be attached to violation level and criminal level offenses.
New York state uses three machines for breath testing in Driving While Intoxicated cases. They are the Datatmaster, the Draeger, and the Intoxilyzer. The state police exclusively utilize the Draeger and have since time immemorial. Down in the city, and the five boroughs they use the Intoxilyzer units. What they all have in common with one another is The Simulator. What is a simulator? Why is it used with breath testing? Is it that important to the final breath test result?
But the bigger question: Does it matter whether DWI defense attorneys get simulator data? Is the recent victory to get all the information on each and every simulator going to helping the defense of DWI in New York?
This is a recent 2018 New York DWI that was dismissed by the judge. The initial stop was for excessive window tint (too dark) but when the case went to court it fell apart. BTW In New York State the law is no more than 70% tint.
One of the most damning things New York has is the jury instruction on breath test refusals. It allows the judge to tell the jury they can INFER a consciousness of the defendant's guilt (of DWI) if they refused to take a chemical test of blood or breath. Coming from a judge as an instruction on the law is a horrible hurdle on refusal DWIs. In the recent DWI case, the police waited till after two hours to request a test.
That doesn't make a chemical test of blood or breath inadmissible at trial BUT the refusal ...
Police have to testify in DWI cases. You can not be tried based upon paperwork and police reports. They are hearsay and inadmissible. When attorneys challenge the stop of a car in a DWI the police have come to court and testify to WHY they stopped the car. In a recent New York DWI case that was successfully challenged the police officers could not sufficiently describe the location of a STOP sign.
Can comparing a police report to police testimony defeat a DWI? Can even probable cause for going through a stop sign be challenged?
Sometimes we get the phone call that is irate and pissed off about how the police handled their DWI stop. With some police departments it is more common and with others less BUT DWI can bring out the worst in people's temperaments. We see two types of DWI stops that bring the most heat or hate.
Do the police have a legitimate right to be mad with some DWI arrests?
What can you do to make your police stop and/or arrest for anything better or at least civil?
