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.

12 Good Reasons Not to Represent Yourself for a New York DWI

I love practicing law in an area filled with many colleges and universities. Ithaca, NY has Ithaca College and Cornell University and my practice focuses on DWI defense within 50 square miles of Ithaca. Over the years I have represented many students and professors who attended SUNY Binghamton, SUNY Cortland, University of Buffalo, Keuka College, TC3, New York Chiropractic College, Syracuse University, etc. The Finger Lakes region also draws people from all over the country for college events and games, recreational activities, and conferences.

In my view, higher education and drinking seem to go together like spaghetti and meatballs. Like it or not people like to drink. I enjoy drinking. There is no law against drinking and driving just driving while impaired or intoxicated. College can be stressful because thinking is the hardest work there is. Writing voluminous papers (often expounding on topics no one cares about), reading (usually very dry material), and taking exams (that play with your mind) is not always fun times.

Alcohol is the most common, legal, and socially acceptable drug we have. Some of my best college memories involved sharing a drink with my friends and fraternity brothers. After having been through many years of college between my undergraduate B.S. in Human Biology, my Chiropractic education, and then law school I have seen the use and misuse of drugs and alcohol. Mr. Mackie may say "drugs are baddd," but I do not believe that drugs or alcohol are bad. They have their place, much like everything else.

I have had a lot of very smart clients. Some with Masters degrees, and Phds in very hard subject areas. They are as a group highly intelligent, motivated, able to research, understand, and apply knowledge at a level beyond the average person.

Which brings me to my burning question of the day,

Should these People represent themselves? In other words proceed, "pro se"?

I will start out by stating a clear and unequivocal NO! and then give you my twelve reasons.

1. If you are embroiled in something personally it is impossible to remain objective. Distance gives perspective, balance, and non emotional (clear) judgment.

2. Most even very intelligent people do not understand the legal system. Even relatively simple Burdens of proof between license issues (administrative) and criminal cases are different.

3. Many Attorneys in 2010 have to specialize and focus in particular areas of law.

The attorney that understands and spends years practicing primarily divorce law will not know how to handle even a speeding ticket let alone DWI charges.

4. Different areas of the country, state, county, city have local rules and customs.

How a Judge, Court, or Prosecutor proceeds with a DWI case in one part of the state may differ greatly by how they handle it in another part of the state. A DWI in Manhattan uses a different breath machine, the Intoxilyzer 8000 versus the Datamaster and Draeger Alcotest (State Police) in Upstate New York.

5. There are usually collateral issues (ie. license) that need to be addressed.

Dealing with the DMV and ALJs (Administrative Law Judges) at DMV hearings is another potential aspect of DWI cases that is overlooked by lay people.

6. There are often pragmatic issues that need to be thought through. How is your case going to affect an out of state license? What are the potential penalties and future ramifications to your specific job or profession?

7. If your case requires hearings, motions, and a trial what then? Are you certified in Field Sobriety testing? Are you familiar with the forensic science behind Breath testing? Have you ever cross examined a police officer? Have you ever presented evidence? Have you ever picked a jury?

8. Would you know what to look for after you obtain the police reports, breath test documents, and other discovery? Have you read many of these? Do you understand police procedures and protocols? Would you be able to pick out problems with the processing of your case?

9. Would you know what was missing from police reports and other documents?

What's not there is as important as what is there. Can you read in between the lines?

10. Is it possible for you to look over one case (your own) in a vacuum and have any insight, perspective, and/or place it on the spectrum in comparison to any other cases? Do you have a firm grasp of current DWI case law? Can you pick out the legal issues and research them? Can you spot any potential defenses?

10. Seasoned attorneys even hire attorneys to represent them and their families.

What legal background or training do you possess? Have you had any prior experience representing anyone legally?

12. Do you believe that the Government prosecutor will negotiate with you fairly, in good faith, and the same way as if you were represented by an attorney?

Do you think you are on even ground when talking with the district attorney? Does he know more about your situation than you do?

It is often said that people who represent themselves have a fool for a client, don't be foolish get the best lawyer you can afford.