New York DWI Conditional Licenses

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.

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!

Dividing and Conquering the DWI

I am a fan of military movies. When I was young I loved to watch John Wayne, Clint Eastwood, and Charles Bronson. They were in my mind men's men. They were walking, talking confident leaders. In my memory, forever type cast as strong, wise, and tough conquerers. They fought for justice, freedom, and the pursuit of happiness.

When I think of my own career arcs, I have always fought or placed myself up against the establishment. When I was a Chiropractor, it was giving my patients the choice of using holistic and natural treatments rather than blindly following one size fits all modern-scientific medical dogma. At other times it was arguing with an insurance company who refused to pay for a procedure or denied benefits. As a lawyer practicing civil law, it was fighting hospitals, medical doctors, and their insurance companies.

Today, practicing DWI defense law, it is the New York State government, law enforcement, and their lawyers (the prosecutors). I am the check to the system. Often I work to set an imbalance. In other words, to create a more level playing field.

One basic premise behind DWI defense is that a case can be won if it is carefully and completely broken down into little pieces. The military theory behind it is called, "Defeat in Detail." You can defeat an enemy more easily by dividing their forces. As Lincoln said, "United we stand, divided we fall." Sun Tzu, said in classic military text, The Art of War, "Fracture the whole."

Any case becomes a story. Every story has chapters. Each chapter has a goal and a purpose. The story is usually of a person at the center of a police investigation.

While they (the government lawyers) are focusing on patterns and signs that focus on drunkenness. I break down the story into the good driving, normal walking, normal talking, normal thinking, normal responding, normal answering, and normal behavior into little bites of tailored information. Each chapter of my story highlights function, and normality. My story focuses on the missing pieces. Their stories embody red, bloodshot, watery eyes, slurred speech, and the strong odor of alcohol. Painting a picture of the fall down drunk. I am looking for all the other reasons (the reasonable doubt) for those same observations.

What is observed are always surface signs. Eyes can look watery at 1:30AM for many reasons, none having to do with the consumption of alcohol. The majority of people are not at their best in the middle of night, and the early morning hours.

So many questions need to be asked. How long have they been studying? How many hours sleep have you had the night before? What is the state of their health? What effect do red and blue flashing lights play in your performance? Or a huge flashlight thrust in your face? Were you nervous, upset, and scared? The term "performance anxiety" ring a bell. How well would anyone do at anything if they forced, under the gun so to speak to perform?

It's all how you look at it. It's the focus. It's the breakdown. It's the details. Make a list right now (while it is still fresh) of everything you did that was good, that was right, that was normal

on the night of your arrest. You will be surprised at how much of what you remember was normal.

New York Passes New Tougher DWI Laws

Yesterday I was first up in Ithaca City Court (first come first served), with four DWI cases in various stages of disposition. Judge Rossiter began the morning by announcing to a full Courtroom (240 cases on her docket) about the new New York DWI legislation that was a coming.

On November 18, 2009, Governor Paterson signed into law, Governor's Program Bill Number 204, The Child Passenger Protection Act, also known as Leandra's Law, it passed by the wide margin of 58-0.

New York State now joins 35 other states that make it a class E felony for first time DWI offenders driving with children as passengers. Class E Felonies carry State prison terms of 1 to 4 years, and 5 years of probation.

This new law also makes Ignition Interlock Devices Mandatory for first time DWI offenders. This is something the Court must impose for a period of at least 6 months. Illinois just put this into their law in 2009, and many other states are following suit.

Specifically under the new law:

1. First time DWI offenders (the per se violation of a BAC .08 or higher and/or common law DWI) or Impaired by drugs (DWAI drugs) driving with a child (15 years or under) may be charged with a Class E Felony. In the past, DWIs were only charged as Class E felonies after a second DWI was committed within a 10 year time period.

2. Mandatory Driver License Suspension (pending prosecution) for people so charged. This is no different than the law in it's current form.

3. Courts MUST order an ignition interlock device on all those convicted of DWI. There is a minimum 6 month time period for Installation and maintenance of the device on any vehicle owned and operated by those convicted of DWI.

4. The Probation Department within each respective county will monitor, issue regulations, and oversee these Ignition Interlock Devices, and their usage. Reading between the lines that means Probation Supervision is a likely possibility ( 3 years for a misdemeanor DWI, and 5 years for a felony DWI) for those convicted as well.

5. Drivers who cause serious physical injury (the threshold for serious injury is not very high) to children 16 or younger will be charged with a Class C Felony, punishable by up to 15 years in State Prison.

6. Drivers who cause the death of child may be charged with a Class B Felony, punishable by up to 25 years in State Prison.

7. Drivers (who are also parent, guardian, or legally responsible for a child) charged with any DWI or DWAI drugs while "that" child is a passenger will also be reported to the Statewide Central Register of Child Abuse and Maltreatment. Child endangerment charges are another likely scenario as well as being held as an unfit parent or legal guardian.

The good news, this year I have not had any DWI cases where my clients had children 16 years or younger as passengers in their cars. Although I did refer a DWI case with a NY driver traveling through another state who did have his children asleep in the back seat of his car. If that same case played out here, with this new legislation in place, it would be a potential nightmare on so many levels.

In that situation, the Office of Children and Family Services would be involved, and those parents would be facing criminal court and family court, and an open Pandora's box of problems. Charges of Child maltreatment, Child neglect, and Child abuse may add to all the other issues facing first time DWI offenders.

Lawrence Newman, D.C., Esq.

http://www.ithacadwi.com