Judge Suppresses Evidence of New York DWI Refusal

Refusals Can Be Actions and Not Words

The Judge Suppressed the Defendant’s DWI Refusal 

to take a chemical Intoxilyzer Breath Test Based on Improper/Incomplete Refusal Warnings. 

Why? 

What Can We Learn from this New York DWI Refusal case?

Pennsylvania License with New York Cell Phone Ticket

What happens if you have a PA (Pennsylvania) Driver's License with a New York cell phone Ticket?

New York’s Vehicle and Traffic Law (VTL) contains two different sections related to use of ANY portable electronic devices while driving:

VTL 1225(c) Use of Mobile Telephone

VTL 1225(d) Use of Portable Electronic Devices (includes texting while driving)

A ticket for VTL 1225(c) is entirely different than a VTL 1225(d) ticket. 1225(c) is a cell phone ticket (“c” for cell phone) while 1225(d) is an electronic device ticket (“d” for device), more commonly known as a texting while driving ticket (even though it covers more than texting).

A 1225(c) ticket means the officer is claiming that the driver was engaged in a phone call at the time he observed him/her operating a car. For 1225(d) tickets, it is doesn’t matter whether the driver was making a phone call. A driver who is merely holding their phone, infers that they were texting or using an app (including GPS navigation) can be issued a 1225(d) ticket.

What many people don’t realize is that a 1225(d) ticket can also be given for devices other than phones. A GPS, iPad, phone camera, or other hand-held electronic device also counts under the 1225(d) law.

Will the points transfer back to PA?

Will my car insurance go up?

Will this appear on my PA driving record (abstract)?

Using Prescribed Marijuana in New York

If I'm prescribed medical marijuana why can't I take it like all my other doctor prescribed substances?

After all it is now "legal" or not a criminal activity in the majority of states. Why do the courts, judges, and prosecutors feel medical marijuana is still UN-acceptable?

New York State Education Department’s Office of School Personnel Review and Accountability (OSPRA) and DWI Cases

NewYork Education Department
Needs More Love

I have done a few posts concerning being a teacher and getting a DWI. The NYS education department has to follow specific laws and rules before firing you for a criminal conviction.

How will the DWI effect your job? How will it impact your life? It depends upon what work you do for the education department, and many other factors which I will list below.

How to Avoid Problems with Your Drug/Alcohol Evaluation

OASAS is also Anti-tobacco

In New York if you are charged (not convicted) with any drinking or drugging DUI (DWI/DWAI drugs) then you will have to have a OASAS drug/alcohol assessment. This is no longer voluntary, this is a requirement of the times we live in. Every New York DWI judge now requires this before sentencing for a number of reasons.

Is it a fair to require a comprehensive evaluation for every single DWI arrest?
Is the evaluator I pick going to be biased or prejudiced against me?
Do I have to be on the defense when it comes to my New York DWI evaluation?

Utah is Now .05 DUI is New York Next?

Utah is now .05 is New York far behind?

At the end of 2018 Utah lowered it's DUI BAC (blood alcohol concentration) to .05. They now have the lowest DUI alcohol law in the country. This is the second time Utah was first in lowering it's limit for DUI. In 1983 Utah went from .10 BAC to .08 BAC, leading the nation and perhaps heralding the new prohibition on alcohol use.

Is .05 BAC DUI too low to prove impairment?
Is having a .05 BAC mean you are now guilty of DUI regardless of how you walk, talk, and act?
Is .05 BAC going to change the way people drink when not at home?

New York Speeding Diversion

In some New York counties District Attorneys are allowing some drivers to get their speeding tickets completely dismissed through Diversion. Now before you jump up and applaud, there are a great many conditions, obligations, and costs involved with diversion.

Is speeding ticket diversion always available? Is speeding ticket diversion worth the time, cost, and hassle?

Does New York Have Mandatory Sentences for DWI?

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.

Do New York Police Have Car Cams or Body Cams?

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.

Saliva Testing for Marijuana: New York Police and the Drager Drug Test 5000

The Draeger Drug Test 5000 Screening Device

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?

Police Radar Not Calibrated DWI Dismissed!

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.

607-229-5184

http://www.ithacadwi.com

Can Early Treatment Help Reduce My New York DWI Sentence?

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.

Rip-Roaring Drunk Pilot Says He Never Operated Plane with .34 BAC

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.

DWI Misconception: I Think I passed (did well) on the Police Field Sobriety Tests

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.

Ithaca Police Charge VTL 509 (6) for Fake Driver's License

Fake Driver's Licenses Can Look Very Good

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.

Dangers of 25 Year Old DUI Charges: New York DMV Driver Disclosure MV-47

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.

http://www.ithacadwi.com

larry@ithacadwi.com
607-229-5184

NY DWI Dismissed: Unlawful Police STOP for Failure to Signal Violation o...

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.

Are You Being Labeled as a Problem? New York's Driver History Disclosure...

Any two DWI or DUI or OUI or DWAI in any state and within 25 years means New York will now label you a problem driver.

This will affect your license privileges in any state you drive. 

Vans and Motorhomes Can Get Constitutional Protection Like a Home

Motorhome gets constitutional protection of 4th amendment's right to privacy

https://www.law.com/newyorklawjournal/almID/1537432804NY63502017/

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

Dangers of New York DWI Drug Alcohol Evaluations

Knowing what to say in answer to an evaluator's questions is so important to your DWI case outcome.

Do not think that these conversations about your drug or alcohol use are friendly because they are NOT.