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 Speeding Violate a New York Conditional Discharge?

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.

Ithaca DWI Lawyer: Can The Police Cherry Pick Speeders?

Police can and do Cherry Pick

Most people have this thing about stuff being fair. As in, that's not fair or that is fair or the latest expression "fair enough." Is anything really fair enough? Isn't fairness really arbitrary? Is there any set level or standard for fairness?

We in the business of criminal law and the defense of those charged with crimes and violations have people ask us about fairness. Is the prosecutor being fair? Is the judge being fair? Or are they generally speaking fair with fines, punishments, and how they treat people?


When it comes to police charging people fairness moves into a whole other category.

Can the police decide who gets charged with a crime and who does not?
Can the police "cherry pick" their speeders out of a bunch of cars?
Can they write down a lower speed or even a non-speed ticket for a speed stop?

Ithaca DWI Lawyer: How Do Police Prove It Was Your Car Speeding on Radar?

Our Upstate New York law practice puts out lots of videos and blog posts about the defense of tickets and DWI. I think understand the legal process and how things work practically helps people make "informed" decisions. Because of that we get lots of questions concerning speeding ticket defense.

A recent inquiry went like this, Hi, my name is Ryan.

I saw your video called "How Do Police Prove You Guilty of a New York Speeding Ticket?"

It is a great video that helped me better understand the laws, good job!

However, I am curious about something.

When an officer uses a radar gun to determine your speed, how do they prove that they were measuring your vehicle's speed and not of another nearby? (emphasis mine)

Ithaca DWI Lawyer: The Triad of Fatality: Speed, Drugs, and Distraction

A recent NHTSA (National Highway Traffic Safety Administration) statistic highlighted a huge rise in the number of fatalities on our roads today. In the past two years deaths are up 14%. That is huge increase, and you would think in this day of modern smart-cars (much like smart phones) with anti-lock breaks, automatic breaking, lane departure warnings, heads up displays, and traction anti-skid/anti-slip control, all wheel drive, symmetrical steering, now I'm just making stuff up, but anyway why?

Why do we have such an increase across the board in road accidents and deaths?

Ithaca Lawyer Can the Police Take Away Your Driver's License?

I occasionally get a call that the police have taken away someone's driver's license after a traffic stop. Now the stop may have been for a DWI or reckless driving or maybe even for a crazy speed. BTW "Crazy" can be as little as 90+ Upstate, I know that may sound ridiculous to those from New Jersey and NYC where people regularly travel at the speed of light.

Most people believe at that point that they do not have a driver's license (or a privilege). Well do they?

SYMBOLS (documents) Versus PRIVILEGES

Well you don't have the ID, the symbol of the license but the underlying privilege is still there. The police do have great authority, discretion, and power but what they do not have is the ability to take away driving privileges.

That can come from a Judge or from the NYS DMV but a police officer on the street can only hold your license not take the privilege away. Once a privilege is taken away you need to sign a document that you have received NOTICE and that you can now have a HEARING to dispute the taking.

This process of NOTICE and a HEARING is minimum DUE PROCESS. Things can't be taken without due process, because it's unconstitutional. You have a right to know what is being taken, why it is being taken, and an opportunity to challenge the taking.

As an aside, always be polite and respectful with law enforcement. It is never a good idea to be a smart ass or play games with them. Best to be mature, do not answer questions without an attorney present, and clearly request an attorney. Whether you should perform or submit to any type of testing is a topic to explore on my other blog posts and videos.

http://www.ithacadwi.com

Ithaca Cortland Lawyer Gets Complete Dismissal of a Speeding Ticket

It can happen, the Complete Dismissal of a ticket. 

Speeding tickets can be nasty business. They can cause short term(fines, surcharges, points, license suspensions), and long term pain (increased car insurance premiums).

Sometimes we can decrease the ticket mph through plea bargaining. Sometimes we can change the infraction (the offense) to something less caustic (irritating). Sometimes we can also completely eliminate the ticket.

The video above highlights two recent cases where we were able to get speeding tickets completely dismissed. The complete dismissal is the exception not the rule but it can be done.

Case ONE, 53 mph in a 30 mph speed zone. 

A 6 point moving violation, would have had hundreds in fines, three years NYS DMV surcharges ($100/year), plus increased insurance costs:

I filed a demand for a supporting deposition along with my notice of appearance to the Court.

They did not send me back a Supporting Deposition with the 30 day time period allowed by statute. I then filed a motion to dismiss the ticket based upon their violation of the law.  

Case TWO, 110 mph in a 55 mph speed zone. Crazy Fast!

An 11 point ticket, automatic suspension, HUGE fines, three years NYS DMV surcharges ($$225/year), plus increased insurance or maybe even being dropped?

I filed a demand for a trial (there was NO offer or plea bargaining with this speed in this Court), cop was a NO show so ticket dismissed.

It begins here but where it goes is up to you and your lawyer
from somestuffaboutmoney.com

To learn about New York's Proof Level for Traffic Violations see my blog post here:

http://ithacadwi.blogspot.com/2013/10/avoca-lawyer-new-yorks-high-proof-level.html

or my blog post on NYS DMV's classification of serious traffic offenses here:

http://ithacadwi.blogspot.com/2012/10/new-yorks-evil-triad-dmv-classifies.html

or Why the need for speed is so costly, here:

http://ithacadwi.blogspot.com/2012/06/ithaca-lawyer-why-sometimes-need-for.html

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

I am a co-author of Strategies for Defending DWI Cases in New York, both 2011 and 2013 editions:

Leading Lawyers on Understanding Today's DWI Environment, Constructing a Defense Strategy, and Counseling Clients (Inside the Minds) New Edition

newman.lawrence@gmail.com
607-229-5184

New York Traffic Court Clerical Error, When a Good Thing Goes Bad

Easy to Get it Wrong from cadred.com

I was listening to that Drake song, "Doing it Wrong," love them great lyrics and thought about a recent
Good Thing Gone BAD! It wasn't with my wife (thank G-d) but with a Case and a Court.

It May Not Be the End of the World BUT Why Clerical Errors Suck 

I started out representing someone for speeding through a school zone, usually this is a no win, as in nothing to do about this one. These types of tickets I always promise Nada. But in this case, and in this Court, I was able to show the prosecutor and the Judge a perfect driving record of 20+ years, a professional person with no history of anything whatever.

The Reduction from Heaven

They offered a reduction out of the school zone, and down to 5 mph over. BTW prior results don't assure future results. I was ecstatic, and more importantly my client was thrilled with this outcome.

I placed the plea offer into the Court with a letter of confirmation, signed by the prosecutor, and requested a final fine notice. I received the proper confirmation and even a final Court certified disposition. What more could I have done? I also called to confirm all of this.

Meets the Court Clerk from Hell

They still screwed up! Someone, some clerk entered it wrong into the computer. Entered the original speed (double over) and in the school zone. I found out because my client received the NYS DMV driver responsibility surcharge notice demanding a $100 a year for the next three years, yikes!

Today I will contact the Court to rectify this. Is this the first time a Court clerical error has occurred? Are you kidding? Good Things Gone Bad are a daily grind. How many people over the years have lost driver's licenses to clerical errors? Countless.

Imagine all those lost souls who just send in their tickets and money without keeping copies or proof.
Watch my Three Things YOU Must Do if You Are Going to Handle Your Own Ticket here:

That is why sometimes handling your own matter can be dangerous. Clerical errors can last for years in the system and take countless hours and letters to correct. Trouble is it seems that even seasoned (mature) attorneys can't avoid them.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 95% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 425 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Fighting for What's Right: Can Police Issue Tickets for Violations They Never Saw?

Car off the road, and then you get tickets, was your speed Not Reasonable and Prudent?
from lefrancophoney.com

I'd like to imagine I'm a pretty easy going guy. Don't ask my wife about this, because she knows better and believes that I can be a big PITA (pain in the ass). Certain things just bother me. I'm annoyed by unfairness and unprincipled conduct. So that means I must spend a large majority of time away from people, government, and businesses to avoid being mad.

Maybe that's why I moved to the boonies? Yeah, Ithaca is the boonies when you were born and raised in Brooklyn.

Making Friends

I got into a little argument the other day with a Deputy. Great guy, dedicated, and bright but he believes he is entitled to write up people for speeding (traffic) violations he never witnessed. He stood in front of me and counted off reason after reason why he believes that people that go off the road MUST be going over the speed limit.

1. he arrived on the scene without going off the road
2. other cars passed without going off the road
3. he would testify to reconstruct the scene in court

So therefore, my client must have been speeding, as in "Speed Not Reasonable and Prudent" VTL 1180 (a).

Why this common and ongoing practice is illegal:

1. NYS CPL 140.10 (1) (b) prohibits (stops) a LEO (law enforcement officer) from making an arrest or issuing an appearance ticket (traffic ticket) for a violation (infraction) committed outside of their presence.

2. Officers, troopers, and deputies can only write unseen violations for three situations. All involve an accident, and/or leaving the scene and/or alcohol.

So the moral of this story is don't accept this common police practice sitting down as in just pleading guilty. Confront, hire an attorney, and take it and them to court.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

607-229-5184

newman.lawrence@gmail.com

http://www.ithacadwi.com

Cortland Elmira Lawyer Why New York Traffic Tickets Tell You Nada

One of the questions I have to frequently answer as an Upstate Attorney is:

Why is that New York traffic tickets (UTTs/Uniform Traffic Tickets) don't tell you how to pay?

They don't tell you what to pay? Basically (the tickets) give very little in the way of direction on what to do next. Only check off a box, guilty or not guilty? do you want a supporting deposition? What if I plead guilty? then what? Questions only lead to more questions.

Who do I pay? Where do I pay? Maybe even, can I just pay this? People (let's call them violators) just want to be done, they just want to put it behind them.

I guess in comparison with Pennsylvania, New Jersey, or even Florida where the tickets have very specific itemized amounts to pay in fines and/or clear cut options (traffic school/diversion) our tickets are antiquated. Much like our system of little village, town, and city courts with night hours, afternoon hours, and non-lawyer judges New York tickets are caught in a time warp.

Bottom Line: You don't know from looking at the ticket, what it will cost or how many points will be assessed. Try calling the Court looking for answers and you may be in for another surprise, these are mostly part-time courts with part-time staff (clerks) and they are rarely there. Some have machines (answering machines) where you cannot leave a message. Some have office hours two or three hours a week. As in please call back between the hours of 10 and 12 on the third Tuesday. I kid you not.

More important things to know:

FIRST: New York courts have wide ranges of punishments for most offenses, including traffic violations.

Ticket fines can range from $ 0 to hundreds of dollars. It is completely in the Judge's discretionary powers.

SECOND: New York courts will potentially assess: points for each ticket, fines for each ticket, a NYS surcharge per ticket, and maybe even a three year NYS DMV surcharge per the points.

THIRD: Even if you get a plea bargain (plea offer) from a District Attorney's office the Judge can choose to accept or reject it entirely or in part. Again this is in their discretion as Justices.

 Caveat Violator in treading these waters. You can always do it alone or you can hire a seasoned navigator familiar with these changing seas. The choice is always yours.

Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

Practice focused on traffic, DWI, and criminal defense within the Finger Lakes area of NYS.

607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com

Ithaca Cortland Lawyer New York's Evil Triad: The DMV Classifies Serious Traffic Offenses

From broomedocs.com

When I think serious I think like "Serious" with a capital S. As in Lethal (deadly) like bleeding, As in hypothermia (getting cold), As in emergency, As in comparing truly serious offenses with minor offenses (like those with jail as a consequence and those without jail as a consequence).

BUT Under the New York State DMV Vehicle and Traffic Law (the VTL) Serious is defined differently:

The TRIAD of Serious Traffic Offenses (aka Serious Traffic Violations) include:

• Unsafe (moving from) Lane Change NYS VTL 1128 (a) 
• Speeding 15 mph or more NYS VTL 1180 (d)
• Following Too Closely NYS VTL 1129 (a)

NOT included is Reckless Driving VTL 1212 (which is another STO) but is classified as a Misdemeanor (crime) under NYS law. The above are all Violation Level (non-criminal) but SERIOUS.

The Consequences of Convictions of these SERIOUS Offenses:

• Insurance Rate Increases (under NYS law for up to three years)
• Potential Driver's License Suspensions for accumulative violations
• Increased Dangers and Sensitivities to CDL (commercial driver license) holders
• Points, Fines, and NYS DMV Driver Responsibility Assessment Surcharges

Talk to/consult with an attorney before pleading guilty to any SERIOUS traffic offense. The potential collateral damage may warrant the cost of hiring counsel. 

In other words it may PAY instead of COST to hire a lawyer.

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

http://www.ithacadwi.com

Ithaca Lawyer Don't Open Pandora's Box: The Legal and Administrative Consequences of Change

Sometimes it is best to let sleeping dogs lie 
and
well enough alone 
From http://futuredocsblog.com

I grew up in the City that doesn't sleep. I owe Brooklyn, New York a debt I can never repay. The school of my youth included the one of hard knocks, and good old P.S. 276. Yeah P.S. as in Public School number 276. Fortunately education back in the day included Greek Mythology. I never fully realized it's implications till later in life.

We All Want to Advance and Change

A recent phone consult had a man who was planning to get a professional license. After all, who wants to wake up day after day with the same thing. He wanted to advance himself. Like the Army slogan, he wanted to be more, do more, and have more.

Getting any professional license, certification, permit, or anything which requires volumes of paper can be tricky at best but dangerous at worst. Not to scare you but the amount of investigation and inquiry these days before the issuing of anything to anyone is staggering. In the wake of 911 we have a bureaucratic mess. From a massage license to a nursing license to a gun permit, you can go round and round. As someone licensed in multiple areas in four states I can attest to being literally put through the ringer.

The problem in my phone consult's situation was that his name was not quite right on all his prior paperwork. He went through life using a name not really his "legal" (birth) name. It started with one simple form thirty years ago, and now he is Tony Alberto on his driver's license, instead of the Anthony Albert (made up to protect the innocent) on his certificate of birth and social security card. It became so much a part of his life that he forgot about it. Your full legal name is just that important. Using different names and/or identities can get you in big trouble both legally and administratively.

Opening Pandora's Box

Everything is quiet, well and good until you make a change in your life, then watch out! Everything in Tony's life was fine UNTIL, until the day he was applying for his new professional license which required ALL the paperwork of his life to match, to align, and to be in synch. It is now 2012 and all governmental and quasi governmental agencies do not like or want you to possess multiple names or AKAs (also known as).

Years Ago it was OK (or at least not as dangerous)

Years ago I represented a guy from Philly with a DUI that had four driver's licenses, one from New Jersey, two from Pennsylvania, and one from New York. One was Anthony, Jr., one was Anthony, Sr., one was Anthony Vinny Jr. and the last was Anthony Mario. Our legal defense, he was Anthony Junior, not the Anthony senior that go the DUI, not a great defense but with a guy like this it's worth a shot. You could never get away with that these days. The DMVs even have facial recognition software to prevent this type of fraud.

The Domino Effect in Action

Back to our original story of Tony Alberto wanting his new professional license. He had to now go back to the DMV. He needed to apply for a driver's license renewal because he was changing his name to his official (legal) name. One seemingly simple process was now going to lead to a chain of event reactions.

The applying for the professional license led to the name change led to the license renewal which now takes us to the problem event, this led to filling out of the license renewal form which led to him having to reveal his recent medical problems.

Medical problems which now could impact his ability to drive a car,
Medical problems which could now jeopardize his driving privileges,
Medical problems which could then take away his freedom to move,
Medical problems which could then take away his ability to work,

You see license renewal is a triggering event. A triggering event is any that can cause a domino effect of change. As they say one thing leads to another. This is a prime example of the opening of Pandora's Box (the evils of government intrusion), and the Domino Effect (one event triggering a series).

Key Take Away: Discuss or at least think about (consider) the full ramifications of dealing with any governmental or quasi governmental agency. This is especially true if you are making application for privileges, licensure, permission, or certification of any type. Sometimes the forms can be much like a minefield. A wrong step or inappropriate response can trigger a domino of things unwelcomed and unwanted.

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Lawrence Newman
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com