The Good, the Bad, and the Ugly

I love the old westerns, and especially Clint Eastwood movies. My wife marvels that I am able to watch them over and over without boredom. They are simple, justice is quick and efficient, and I can relate to the code of respect. The people in these movies are usually very black and white, good and bad are easily discernible.

Recently, I was critiqued on Craigslist. It was not very flattering, but I guess if I can accept those testimonials that see me as saintly I must recognize that there will be those others who see me as the devil. You would be hard pressed not to know who I am, what I stand for, my education, my training, my experience, how long I have practiced, where I have practiced, what seminars I have attended, in fact I will make a bold statement, I am probably one of the most open lawyers or people online.

I am neither devil nor saint, although I have played both roles. For the record I take full responsibility for anyone who does not understand something I may have said. I believe that the communicator shall do his or her best to be understood and clear.

I primarily represent people for DWI cases, and these cases are difficult to defend. Some people come to see me with an expectation of "getting off" the charges. I have spoken before about the reality of "getting off" and plea negotiations. The truth is that 90% + of all criminal cases in this country settle by way of a plea. Pleas can happen after hearings or conferences or right before a trial. Everyone has the option of having a trial. They cost time and money. They may or may not be beneficial. Juries then decide guilt or innocence.

Cases are always viewed on their merits, on the evidence, on the proof. With DWI "charges" the government does not care how wonderful you are or that you have a job or that you have multiple degrees or if this is your first offense. All those things may be considered at "sentencing" but not for the "charging" of crimes. They (the prosecutors) are interested in whether or not they can prove a DWI (common law and/or "per se") beyond a reasonable doubt.

Generally, if your case has a breath test it is harder to defend than a case without a breath test (a refusal case). If your case has you falling down, driving on the wrong side of the road, hitting curbs, hitting guardrails, admitting to drinking 8 drinks, stating "thank god you got me," or falling asleep while being questioned, then you may have a "harder" case to defend.

Let's deal with reality, dropping your cell phone and hitting one mailbox, ok explainable, dropping your cell phone and hitting four mailboxes on three different streets, not so explainable. I deal with the not so explainable every day, and how much of it a jury can "buy"as in believe, is something most of us can only imagine or try to predict. I work within the facts of every case to come up with the best defense I can. Within the spectrum of cases I see and evaluate there are the good facts, the bad facts, and the ugly facts. Sometimes the good facts outweigh the bad facts. Sometimes I have DWI cases with no drunk (bad) driving. I have a speeding ticket or an expired inspection or bright headlights. Sometimes I have an improperly done breath test or expired chemicals or a person with asthma. Everything that can be looked at gets looked at. But I cannot turn a blind eye to bad facts, they will not go away.

It is a immature mind that thinks that attorneys can change the facts of any case. No matter how "ugly" the facts of a case are, I believe that everyone deserves to be treated fairly throughout the process. My job is to do the best with what is front of me.

Getting Off a New York DWI

Well this is my 100th blog posting since I began my DWI blogging. Because I have taken a long summer haitus from writing I am filled with inspiration and ideas. I get calls all the time, just last week I got one of those 3 AM calls, yes, nothing like a 3 O'clock on a Saturday morning to shock your system... hello.. my daughter...was arrested... this was not the "should I take the breath test?" calls, it was the post DWI arrest now what? phone calls from a concerned parent.

I do my best to launch into explanation mode (hard to do half asleep) and tell her to have her daughter call me in the morning (Sunday)... I go back to sleep... my wife is very understanding thank G-d... 10 minutes later...another call..."I have a few more questions..." Meanwhile none of this is within the context of the hour, in other words, people sometimes expect me to be waiting by the phone and always ready, when it is necessary I am but sometimes things can wait.

Which brings me to my main point today, what is GETTING OFF,

in common parlance (as in parlez vous = you speak) means...

Not having any charges, or having them dismissed by the District Attorney or Judge, or being found not guilty of everything...

First, how common is this? Not common, but it can happen. If there is no PC (Probable Cause) for a car stop then all the "fruits" of that stop ie. the breath test are "poisoned" Attorneys call this the "fruit of the poisonous tree." PC in New York is a legitimate reason for a stop, a factual traffic violation. We can also raise issues concerning PC to make an arrest but this is usually a small hurdle for the Police to surmount with the stop cop talking about odor of alcohol, slurring of speech, bloodshot eyes, etc. Remember that the DWI common law charge, VTL 1192 (3) is based on the OPINION! of a police officer.

Second, District Attorneys make offers but usually do not let people completely OFF of all charges. It is a ridiculous fantasy. It bothers me when people call me stating that a lawyer or law firm "promised" and/or "guaranteed" them a particular result. It is unethical and unprofessional to ensure a result. I make reasonable predictions and show usual options but to do more in the initial stages (without all the paperwork, police reports, breath test records, etc.) is practically impossible. My promise is to always do my best. I had one attorney locally promise to get a son's client OFF for $5,000 on a 0.19 Aggravated DWI. I told her without any discovery, without a suppression hearing, and without a trial this was highly unlikely. But people want so badly to believe in a FANTASY. Maybe it's human nature, but if it sounds too good to be true, it probably is BS.

Third, the REALITY in this particular situation is that a Judge cannot accept a plea to reduce a Aggravated DWI (DWI per se with a BAC (blood alcohol concentration) of 0.18 or more) to a DWAI (Driving While Ability Impaired), a traffic offense, without strong reasons. To further believe that a Judge or District Attorney would dismiss the charges outright would equate with winning the lottery or being struck by lighting.

Fourth, the big win in New York State is a reduction to a DWAI because of two reasons:

1. the proof required is "any extent of impairment," a small burden of proof compared to intoxication (DWI, which requires mental and physical incapacity (to a substantial extent) to operate an automobile as a reasonably prudent driver)

2. since DWAI is a traffic offense you get a bench (judge) trial, no jury, and many judges feel that this outcome is more than fair and just compared to the DWI charges.

So please exercise your RIGHT to not accept anything blindly, and to be skeptical of anyone offering fast, easy, and cheap solutions. A great analogy is that almost all of the contestants on the show "The Biggest Loser" including the "winners" put all their weight back in the months after the show was over. THE REALITY: Long term "healthy" weight loss requires a lifetime of work and lifestyle changes it is not going to be accomplished with a short term FANTASY program.

So many things to talk about for September, 2010:

1. We have a new ignition interlock law (effective August 15, 2010), and IIDs have many issues and the implementation of them (monitoring) has been a nightmare for many counties.

2. We have new forensic studies that make our "one" breath test state even more suspect and in the words of my kids "sketchy."

3. New York Law is being challenged. Specifically the admission of the breath test calibration and simulation solutions records into evidence at DWI trials absent their certifiers appearance at trial. These are sixth amendment confrontation clause issues that have been raised nationally by the Supreme Court, and are now being raised locally by attorneys like myself.

So we are back or off to a new start, as a new school/college term is underway, and we are all learning.

The Back to School DWI

It's been a long and hot Ithaca summer. Compared to last year's record coolness, and lack of humidity this summer was brutal. I think we used the old window A/C units only few times last year. In fact, I was bragging to some friends how summer here is so lovely, blah, blah, blah, and then 2010 balanced it all out.

Cornell University and Ithaca College students are back, and the town is buzzing once again. My law practice focuses on DWI/DUI defense so naturally I have represented many students over the years.

One all too common DWI scenario is when a boyfriend and girlfriend have a nice dinner or a small party/get together. They all plan to spend the night, enjoy some drinks, and no one plans on driving. Then later in the evening or in the wee hours of the morning a fight or argument ensues. Maybe a drink spills on a laptop, or the liquor/beer/wine brings out some honest feelings or perspectives. Maybe the conversation becomes heated. Tempers flare and all reason gives way to heated emotion.

Now one party demands that the other leave immediately. Your best friend/lover/partner may even call the police after you leave, and tell them you are driving drunk or that you are driving high. With the flip of a switch you are in DWI hell. This situation is so common in my world that I call it the back to school DWI.

I always tell students that the time to think about a back up plan is not in the heat of the moment. You cannot think clearly with a combination of alcohol, and a polarized emotional state. Do not take any chances with your future. Always have cash and/or a credit card for a cab. Always have a car service number programmed in your cell contacts. Never assume that your friends are always looking out for your best interests. The bottom line is you have to protect yourself.

Understanding the New York DWI PSI (Pre-Sentence Investigation)

There is not much written online concerning the process surrounding New York State's system of determining who receives a sentence of probation for a misdemeanor DWI. It is a mystery to many. I believe as a DWI defense lawyer that uncertainty is a nightmare for those going through this process. In this blog, and the next I hope to explain the procedure in simple terms.

First, the vast majority of DWI cases as well as other criminal cases in this state are negotiated with pleas. The cases that go to hearings and trials have issues that need to be addressed by either Judges and/or Juries.

If the case is resolved with a negotiated plea then the District Attorney may or may not agree (as part of the plea agreement) to waive a PSI (Pre-Sentence Investigation). What that means is that the District Attorney may or may not be seeking a term of Probation as part of the final sentencing of the Court. He may be seeking probation for your DWI because of the results of your drug/alcohol evaluation, the amount of your BAC (Blood Alcohol Concentration) at time of your arrest, a DWI involving (property or people) damages, prior criminal history, prior history of drugs and/or alcohol abuse, your age, and driving history.

For all New York State DWI Misdemeanors Probation Terms are for Three Years.

NOTE: Probation could be terminated early (less than a three year term) by your attorney filing a Motion with the Judge after a period of "good" probation. "Good" meaning a period of time in which you have no problems, no committed offenses, and/or crimes, involving the use of drugs, and/or alcohol.

A PSI is where you are interviewed by the Probation Department (usually of the County's Probation Office in the city in which you live) to determine an appropriate sentence for the crime being pled to. NOTE: If you are from Out of State, Probation can not be recommended by the department because it can not be transferred to another state or country so it unlikely that probation will be part of sentencing. Unfortunately, since the Judge and DA can not give a term of probation they may seek some jail time.

Now the Court (The Judge) can still seek a PSI (Pre-Sentence Investigation) before rendering it's sentence because ultimately the Judge must agree to "the deal" struck between both sides (Counsel for the defendant as well as Counsel for the State of New York). This can add many weeks to the process between making a deal, and having a final resolution of the matter. Sometimes PSIs (and their final report to the Court) can take four to six weeks even though the actual interview usually takes less than an hour.

The way that it works is if after a final disposition (case outcome) by negotiated plea bargain if can go one of two ways:

If the Judge and DA both agree to a CD (Conditional Discharge) then there is NO Probation and no need for a PSI.

OR

If a PSI is ordered by the Judge then Probation department will contact the defendant and set up an interview. This is a "this is your life" type of interview and review. Probation is usually for people who need supervision. Supervision normally entails being watched over with random screenings and tests for the use of drugs and alcohol. It is also likely to include some type of drug counseling/rehab/treatment program and/or mental health counseling.

In my next blog I will detail what goes into a PSI report, and how a probation determination is made.

The One Opinion DWI State

Living in the land of: "Ignorance is Bliss" and "What you don't know won't hurt ya." The problem with attending Forensic Science DUI conferences is that you can no longer be a mushroom in the dark. Choosing to remain silent is difficult. So enough beating around the bush...

New York State just takes one breath sample. It's called "replicate" testing. They (the police) Test one sample twice versus the industry accepted norm of "duplicate" testing whereby they take two separate samples. Many other states do duplicate sampling. Because CSI fans, having two separate and distinct samples (within .02 of each other) assures greater accuracy of the procedures.

Imagine for a moment going to the doctor, and getting a high blood pressure reading on his machine. The doctor makes a hypertensive diagnosis based solely upon the one test, and prescribes medication. How about one better, have a blood test for HIV and you are told it is positive. Sorry no second opinions for you, you just have to live with those results.

Well having a breath machine spit out a number is scary stuff. The machine is an unsworn trial witness. Scarier still is the fact that for the test results to even approach any accuracy the machine operator needs to follow the proper procedures. Couple to that fact that machine breath testing of alcohol ASSUMES: an average body temperature, an average metabolism, an average lung capacity, your body is done absorbing alcohol, and you are healthy we have all the ingredients of an inaccurate test.

An inaccurate test is bad enough but when you only get one opinion (from one test sample) it makes that test critical to your guilt or innocence of DWI "per se" (based on the test). Errors in breath testing generally come from three different areas:

1. Machine errors

2. Operator errors

3. Subject errors

Looking at each of these areas in detail is crucial to mounting an effective DWI defense. Recently, I had a case where the chemicals used in testing were expired prior to doing the test. Technically, the chemicals have a certified expiration date from the NYS Police crime lab but more importantly is that that is a "shelf" life (date) for the chemicals. Once the chemicals are put into use for testing on the machine they can only be used for 60 days ("use" life) from the date of first use. So checking chemical logs (the police must keep weekly logs of the chemicals) against the certified expiration dates is important.

Defeating A DWI

I love to surf, the internet that is. Just yesterday I punched in the above terms "defeating a dwi" and what pops up number one but an article by me. At first I was excited, a google number one, then my expression changed as I saw that my name was left off, and admin was put on as the author.

This was a website for a chemical that eliminates odor from your breath. It was being marketed to drinkers who wish to avoid detection as in if you are ever stopped for a traffic infraction just a quick spray and the cops will go away. As I delved further I found more articles sans name. My anger at this internet piracy grew. The articles mentioned the death of my father the day after my 17th birthday, the name of one of my friends, and other personal information. Everything was there except credit to moi! I'm just a little Upstate New York DWI defense lawyer but I do have feelings. Ithaca inspires me to write and share so it is with joy that I create but give a guy credit.

Their site and my articles sans my name and info.

www.sobriety-checkpoint.net

http://www.sobriety-checkpoint.net/category/dwi-sobriety-checkpoints/

http://www.sobriety-checkpoint.net/tag/case/

My original articles:

http://www.articlesbase.com/criminal-articles/defeating-the-new-york-dwi-refusal-case-1330173.html

http://www.articlesbase.com/criminal-articles/the-power-of-words-in-dwi-case-1335602.html

http://www.articlesbase.com/criminal-articles/what-do-sex-and-intoxication-have-in-common-1330200.html

http://www.articlesbase.com/criminal-articles/defeating-a-new-york-dwi-by-beginning-with-the-end-in-mind-1335399.html

So on that note I wish to highlight the power of "honesty" in defeating a DWI. Some may think me mad in advocating for truthfulness and openness with a criminal case but I have found that not trying to cover up your fears is a better philosophy and strategy for long term success.

Jurors are not stupid. They have the same doubts and concerns as the lawyer looking at the case. If you do not allay their questions openly they will most assuredly be discussing them back in the Jury room.

We as DWI defense lawyers can not look to sweep dirt under rugs and pray that it is never discovered. Everything can be seen from different perspectives. The key with good advocacy is to put yourself in everyone's shoes. Put yourself in the shoes of the juror, put yourself in the shoes of the cop, put yourself in the shoes of the prosecutor, and put your self in the shoes of the judge. Now the case can be seen as a total whole and not a bunch of random pieces or events.

The facts of any DWI case are nothing without context. Someone has to have a viewpoint of that fact.

This is from an actual case. Fact, a driver was pulled over for having headlights that were too bright. The officer in his report made no mention of investigating or asking about the headlights. The motorist only traffic violation was the headlights but no detail or documentation of this fact, just a single ticket plus of course the DWI investigation and subsequent criminal charges.

I demanded a suppression hearing on the stop (was there reasonable suspicion), and the arrest (was there probable cause). My plan of attack was a whole line of questioning, first on the importance of the report and it's detail, then on the fact that my client showed him the dashboard, demonstrated the lights on and lights off controls. The "stop officer" had one goal for this stop (investigate the bright lights) and this sole purpose was never addressed by his investigation/inquiry.

All the DWI criminal charges were dropped. This was with a .15BAC. The outcome was a DWAI (traffic violation) pre-trial. My thoughts for this case were always that jurors would want to know, the judge would want to know THE BIG WHY? If you say the stop was for x why are you not checking x, asking about x, and investigating x?

I was able to listen to my client and get "the story" of this DWI case. His story included the lights where the officer's did not.

btw that Company in California that "borrowed" my content without giving me credit:

Pure One International

3400 West Warner Ave., Unit A

Santa Ana, CA 92704

714-641-1430

fax 714-641-1432

Bytes for All (Website creation/hosting) from someplace overseas.

I really do believe what comes around goes around so God bless them and may they reap the fruits of the seeds they sow.

Lawrence Newman, Esquire

607-229-5184

Ithaca, NY

Don't Worry Bout It!

Oh the problem of these four little words. When I hear them I cringe. I have heard these words all too often in Court. They are usually spoken by some lawyer to their client. As in, "don't worry about ... your legal status (non-citizen), your out of state license privileges, your future ability to find employment, your ability to get a professional license, your ability to travel to Canada, etc. etc.

You have to anticipate Collateral Consequences of anything. Everything (every decision) has far reaching and typically long lasting affects. Much like the game of dominoes, once we set a course of events into action, many fall one against the other, and often we cannot even predict when this chain of action will end.

So that said,

1. You have to talk to more than one lawyer about your problem. Get some different perspectives.

2. It is best to talk to a lawyer who specializes in the specific type of problem you are facing.

3. Just because someone has 20, 30, or 40 years of experience does not make him better.

4. Lawyers that use the phrase, "Don't Worry Bout It" should be avoided like the plague.

5. A DWI conviction can affect multiple life areas including your out of state driver's license, your professional licensure, your employability, your permanent record, your ability to travel freely, and your insurance rates and insurability.

As an example of this, I recently had a college student come to me with a first time DWI charge. He held a driver's license from another state. He was attending college in New York State. Since he was planning on staying here for a number of years (establishing residency) for college he should have switched over his license to New York State.

Now he faced a crossroads. Should he switch his license before his initial appearance? Should he get a New York State license? Some lawyers told him, "Don't worry bout it," I told him if I represented him I would investigate the potential DWI conviction ramifications back in his home state. I am a member of the National College of DUI Defense, and have DWI defense friends (on my list serve) as an invaluable resource of information.

The range of consequences in these situations is immense. From fines of $3,000 (ie. New Jersey) to license revocations of 210 days (ie. New Jersey) without conditional (any) driving privileges. So these decisions (much like choosing a lawyer) should not be made or taken lightly. What happens in Colorado, Mass., PA, and the other 43 states varies. But making educated and informed decisions by knowing what happens and saying "don't worry bout it" are two totally different things.