The Standardized DWI Arrest

As winter gives way to spring in lovely Ithaca I am reminded of the beauty of nature. The birds are coming back, the croci (crocuses) are beginning to emerge, and I hope we have seen the last snow of winter. It has been a mild 2010. Our friends in the big cities (Philly and NYC) got hit this year. We had hardly anything (relatively).

The wonderful thing that nature reminds me every year is that people like flowers or snowflakes are unique. Your fingerprints, DNA, and combination of traits is unlike any other the world will ever see. Yet we (as a society) like to "standardize" everything. So what gets mass produced, marketed, and sold is the average. What is played again and again is the popular song. Popular doesn't mean good, it means what the common majority likes.

So Larry, what the hell does this have to do with DWI defense? Excellent question!

Law enforcement and the government builds their case evidence (proof) using:

1. Standardized administration procedures (in both the SFSTs and Breath test)

2. Standardized clues

3. Standardized testing criteria

A DWI arrest is usually based upon the officer giving you tests at roadside. His observations, and your performance will support his decision to arrest. He feels he has probable cause (based upon his proof) to make an arrest for driving while intoxicated.

The SFSTs (Standardized Field Sobriety Tests) are:

1. A series of three evaluations that have to be administered in a standardized manner by law enforcement. They are the walk and turn, one leg stand, and HGN (horizontal gaze nystagmus).

2. They have been created/chosen/selected and established by Government Authority (National Highway Traffic Safety Administration) as a RULE.

3. This RULE is for measuring the loss of mental and physical faculties (impaired function).

But are they accurate? In other words, do they conform exactly to truth or a standard?

And are they precise? Do they strictly conform to a set pattern, standard, or convention?

The first problem with any testing following a car stop is the officer has NO BASELINE.

He or she doesn't know YOUR normal. He doesn't know your physical and/or mental limitations. This is where standardized tests don't account for YOUR unique characteristics. YOUR past knee, back, shoulder, hip, neck problems. YOUR inner ear infection, cold, or flu.

A second problem with testing is that it is usually done outside. The conditions are usually not ideal. Weather is one issue. How many winter DWI cases with snow, ice, and freezing wind as our backdrop? How many motorists are without coats, jackets, or proper (appropriate) attire for being outside at 1:00AM in Ithaca, NY in December? What of the road conditions? What area were you forced to use to perform these balance, coordination, and mental exercises in the dark and in the middle of the night?

A third problem with testing is that the officer does not always follow procedures or he complies haphazardly. Standardized testing must be done in a set way and by following very specific protocols (rules/guidelines). Often officers will refuse to acknowledge they even "measured" anything. They prefer the word "estimated" or "scored" because those terms have less precise connotations. Did the officer leave "all" his emergency lights on when giving the tests? Did he communicate what he wanted from you clearly?

A fourth problem with testing is footwear. In the summer and spring the issue is usually flip flops. In the winter it is usually boots. High heels are always an issue when it comes to having to walk on imaginary lines, and balance/stand on one leg.

The breath test also has protocols and guidelines. It also needs to be "administered" properly. Sometimes law enforcement doesn't follow all the rules. Adherence to the rulebook is not always forefront in their minds. Not being being strict in compliance can lead to inaccurate results.

And inaccurate results can lead to wrongful DWI convictions.

The New York DWI is a Two Headed Monster

In New York State if someone does (as in takes) the breath test, more accurately known as the "chemical" test back at the station then they will be charged with two counts of DWI.

1. DWI Common Law VTL 1192 (3): The government must prove (beyond a reasonable doubt) that you (the operator) were incapable (to a substantial extent) of operating the automobile both mentally and physically as a reasonably prudent driver. This usually is through the stop officer's (the arresting officer) testimony concerning your driving, behavior, appearance, testing, odor, etc. In other words, his "subjective" opinion.

2. DWI Per Se VTL 1192 (2) A BAC (Blood Alcohol Concentration) of .08 or higher or Aggravated DWI Per Se VTL 1192 (2) (a) A BAC of .18 or higher. The government needs to prove (beyond a reasonable doubt) that the breath test was given within 2 hours of your arrest, was properly administered, by a currently licensed BTO (Breath Test Operator), using properly mixed chemicals, with a calibrated and maintained breath machine. This of course is an indirect measurement of blood alcohol via a breath measurement.

The two most common machines are the Datamaster DMT (used by town, village, and city police depts.) and the Draeger Alcotest (used primarily by the N.Y. State Police). These machines are accepted by the Courts as approved for BAC testing.

There are various ways to attack both the DWI counts but remember that if you took the test it will need to be dealt with and can not be overlooked by your attorney. The per se count becomes the primary target because it is a number that the prosecution will mention again and again.

I believe that a shotgun approach to arguing that all breath testing is inaccurate and unreliable (fraught with error) will usually fall on deaf ears. A focused and detailed strategy is the most effective way to defeat each count.

Depending upon the specific facts of each DWI case arguments can be waged against:

1. Whether the procedures and protocol of breath testing were adhered to?

2. Whether the machines were calibrated in a timely manner?

3. Whether the machine in question had any recent repairs or issues?

4. Whether the chemicals were properly mixed and/or expired (out of date)?

So records need to be examined carefully and potentially subpoenas must be issued against the police to get ALL the machine records. To get police records your attorney is going to need to get Judicial Subpoenas (issued and approved through a Judge). With a lot of work often the ugly truth comes out, and the breath test's validity becomes an issue of doubt.

In recent cases, I found that the State Police had written in the wrong chemical expiration date. The chemicals were expired days before my client's breath test. After I filed my motions the Judge was compelled to throw out the test, and the prosecution's case along with it. In another case the machine had frequent break downs, and parts replaced concerning the same issue, the machine would not accept a breath sample. My client was charged with a refusal because the police said she wasn't trying (blowing) hard enough. That case was also thrown out after I subpoenaed all the machine records, and brought to light the machine's problems.

Nothing of any value is easy, cheap, or speedy. That first case went to multiple hearings and motions. My client was relieved when the nightmare was over but during the process had many uneasy days and nights. To me the DWI is a two headed monster with one head uglier than the other.

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

What is DWI "Per Se"?

One of the more challenging things about practicing DWI law is communicating the legal statutes in a way that is clear and understandable to my clients. All 50 states have at least two main types of DWI/DUI offenses. One is called a common law DWI, this is what most people understand or interpret as the "driving while drunk" or "driving while impaired" or "driving under the influence." It has many legal definitions, but in NYS it is mental and physical incapacity to operate (drive) a vehicle as a reasonably prudent (safe, responsible) person.

The other NYS statute is our DWI "per se." PER SE: latin for "by, through, in and of itself, intrinsically, inherently, requiring no external evidence."

If you get one thing from this blog this is it:

You DO NOT have to show the signs or symptoms of intoxication or drunkenness or impairment to be found guilty of this offense.

Merely the fact that a "good" (accurate, reliable, properly administered, calibrated) breath test indicated a BAC (blood alcohol concentration) of .08 or more. Some people like to argue but "I wasn't drunk." It does not matter. But I drove perfectly, it does not matter. But I understood the police officer and did all the tests right, it does not matter. If the state (the government/the prosecutor) can bring in their BTO (breath test operator) and make out (prove):

1. he or she was licensed

2. the machine was properly working

3. the test was properly administered

4. the test was performed within two hours of arrest

then ... the jury may (or may not) find that you are guilty of DWI "per se."

Now a DWI defense attorney can argue the problems with taking indirect measurements of blood through the taking of breath. He can argue that everyone is different even though these machines are calculated and calibrated and set up to test and assess "average" people. He can argue that you, the individual on this given occasion had specific medical issues. He can argue that the test was not properly administered, ie. No 20 minute "observation" period.

I have previously discussed other defenses to breath test results that do not match "sober" behavior patterns. In addition, everything the state proves must be proven to the BRD standard (beyond a reasonable doubt).

I could go on and on, suffice to say, the "science" behind breath testing for alcohol leaves a lot to be desired. Prosecutors and many Judges love to rely upon breath test numbers as godspell. After going through the certification program, and studying these machines I am more than a skeptic concerning their accuracy and reliability. I do not trust breath tests!

New York DWI Windows of Opportunity

Funny how the things you think about can relate to so many other things. This morning I remarked to my wife how the pear I was about to eat had such a brief period of perfect ripeness. No, I'm not high, but I do get these moments of insight. I have found that pears unlike apples are good, crisp, and delicious (not mealy) for only a few days. Cut them too soon and they are hard and bland. 

Then it hit me, DWI cases also have temporary windows of opportunity. The clock begins to run on every case when you are first arraigned with counsel. This is where you enter your plea of not guilty, and are formally told of the charges against you, by The People (of the State of New York).

Once you are arraigned your attorney must NOW make a demand for Discovery, and for a Bill of Particulars. This is the government's evidence against you (how they plan on proving their case). 

The District Attorney now has 15 days with which to comply with that demand. In addition, you have ONLY 45 days from this first date (the date of the initial appearance) to make, and to file any pre-trial motions. Motions to suppress evidence, Motions to suppress statements, Motions to Contest the use of the refusal against you, Motions to state that the stop and/or the arrest were unconstitutional.

Does your attorney serve the demand upon the District Attorney in Court (at the Initial Appearance)? 

Does your attorney wait? A few days? A few weeks? Does he send a letter? 

My philosophy is that:

1. The ADAs (Assistant District Attorneys) have a lot more cases (files) than I do. 

2. The government employees are typically overworked, and can not possibly know each and every file. 

3. I have more time to spend and think about fewer cases (because I take fewer cases).

4. I have more time to demand, gather, interpret, and study the evidence.

5. I have an advantage IF I use time as an opportunity.

6. There is now a greater likelihood that I will better understand the facts and the case.

7. The sooner I begin, the better my defense (s) to the evidence.

Attorneys are on strict timelines (deadlines). Meaning that if you DO NOT file motions in a timely manner you will lose your opportunity (your chance) to contest and argue them at pre-trial hearings. Too bad, so sad or if you snooze you lose. 

Pre-trial hearings (suppression hearings) are really where cases are truly won or lost. They are opportunities (G-d I love that word) where a lawyer can truly test his defense theories, size up the police officer, and create narrow and focused points of attack. 

So much like seizing that opportunity to eat a piece of fruit when it is perfectly ripe I believe it is vitally important to strike early, strike first, and strike hard with DWI cases.