Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
New York state is progressive in many ways and there are NO mandatory sentences to jail, probation, or community service on first time DWI offenses.
License issues can be dealt with in a couple of ways:
1. request for a 20 day license revocation STAY (delay in revocation)
2. conditional license to drive for school, work, and medical (for you and your defendants)
3.shorten revocation from six months to seven weeks with taking of the IDP (impaired driver program)
As to jail, probation, or community service, strategy to lessen the consequences take many forms and are dependent upon the county, the probation department, type of DWI, your history, the DA (prosecutor), and and court/judge who is residing over your case.
Body and car cams (cameras) are being used by law enforcement across the country, and yet the progressive state of New York has few to none. Video can be a mixed bag. Watch this to see when and where New York police use video in the processing of an arrest for DWI.
New York conditional discharges are the most common sentencing disposition so why are they so confusing. This video destroys the three main myths about CDs in New York.
The three most common myths about Conditional Discharges:
1. Conditional discharges do not dismiss any of your criminal or non-criminal charges.
The court outlines a set of conditions or obligations which must be performed. These will usually have dates assigned for completion. The judge may require proof that you went to classes, did community service, paid fines, got a drug/alcohol evaluation, went to therapy/treatment, or other condition.
The discharge is a release from your obligations with the court.
2. Conditional discharges do not seal any of the charges.
The public will be able to assess your records. They will show up on background checks. The only way to seal any criminal charges is by filing a sealing motion (after 10 years).
3. Conditional discharges are not forever.
The CD has a specific period of time, usually one to two years from the date of sentencing. This is a general stay out of trouble or do not get re-arrested for anything.
Conditional discharges can be attached to violation level and criminal level offenses.
Police have to testify in DWI cases. You can not be tried based upon paperwork and police reports. They are hearsay and inadmissible. When attorneys challenge the stop of a car in a DWI the police have come to court and testify to WHY they stopped the car. In a recent New York DWI case that was successfully challenged the police officers could not sufficiently describe the location of a STOP sign.
Can comparing a police report to police testimony defeat a DWI? Can even probable cause for going through a stop sign be challenged?
We are at a cross roads with marijuana in this country. Cannabis use is trending nationally both medically and recreationally. Laws are changing for it's use but we have multiple standards that define when and if someone can drive. We have active delta 9 THC laws, inactive metabolite THC laws, and then we have "per se" laws.
We only have one drug nationally that is defined with a number and that is alcohol at .08 BAC. The only reason all 50 states adopted that number was by the coercion of the government. If they wanted funds for their highways then they needed to implement .08 BAC.
Are we going to see a marijuana per se law nationally?
Can cannabis be quantified by a per se law?
Is it fair to lump marijuana impaired driving with drunk driving?
UFC fighting champion Connor McGregor just got into some trouble in New York. He attacked a bus full of UFC fighters and took a hand truck to one of bus' windows. He's charged with felony criminal mischief and misdemeanor assault.
Between a normal person (that is not a celebrity), and McGregor what is going to happen in terms of court and this process?
Was alcohol involved? Does the fighter have an alcohol issue? Does McGregor have an anger management problem? Does McGregor have an immigration issue?
We have represented hundreds of people over the years. Most
of time it is an easy decision to represent just one person, and to have that
person’s interests foremost in mind. But sometimes we are asked to represent a
husband and a wife or multiple people involved in a crime.
Is there a conflict if they are related? Is there a conflict
if a defense can make one guilty and one innocent? Is there a conflict when one
person could be more guilty than another?
Can a lawyer represent more than one person if more than one
person was involved with a crime?
There is a New York Times article on a public defender (appointed) lawyer in Texas. The judge is accusing the attorney of spending too much time with the client, billing the state too much money, and spending resources on a vigorous defense.
Judges like all people come in different shapes, sizes, and colors. Getting one you like is usually not like picking a crayon. So if you are left with NO choice you must do your best with the judge you have.
Understanding the psychology of that judge. How do they truly think, feel, and deal with different crimes can make a difference in the outcome of your case. Ultimately the judge will be the one deciding your fate.
Judge recusal is difficult at best and not usually a possibility. The judge you start with is generally the judge that you finish with. So remember to be nice to everyone including the judge.
Recuse. To disqualify or remove oneself as a judge over a particular proceeding because of one's conflict of interest. Recusal, or the judge's act of disqualifying himself or herself from presiding over a proceeding, is based on the Maxim that judges are charged with a duty of impartiality in administering justice.
Unless you know the judge or someone close to you knows the judge, getting the judge to say he or she can't be fair and impartial is not happening anytime soon.
In Court once we have a plea offer accepted on the record and then sentencing on that offense
there is no going backwards. BUT way before the plea is accepted there is room for improvement
in the offer. From the moment of your first court appearance everything you do
and do not do will have an impact upon your offer and your final outcome.
All Plea Offers are NOT Final Plea Offers
Sometimes prosecutors will let you know this is the final plea offer right from the get go. But not always and even if they say that, yes even if they say THIS OFFER IS IT, the judge can step up and say hey district attorney how about...
Judges Get Involved in the Plea Bargaining Process
Some judges are very hands on. They seek the justice that your client deserves. They often balance out a harsh (polarized) prosecutor. They don't want very single case resulting in a trial. In fact since most cases don't go to trial because trials are costly both in time, resources, and money judges will assist in settlement. Pre-trial conferences gauge both sides willingness to deal and to negotiate a fair outcome.
Looking for Friend in the Local Probation Department
You know the whole phone a friend on the show "who wants to be a millionaire." Well we as defense attorneys look for a friend to help our client. Who can be our ally in the plea process: will the judge be reasonable or maybe our only hope for a level headed and reasonable plea offer if PROBATION.
New York State probation departments in general will look at a person's whole life. From the top to bottom, inside and out they will look to assess the whole of your arrest, and make an appropriate and fair recommendation for sentencing. And even though we can't always count on their generosity or kindness it is nice to know we can sometime have a friend in probation.
Probation writes a report. This evaluation and report can come either before or after the plea offer is accepted. This report can evaluate needs, make treatment suggestions, and finally weighs in on the plea offer and sentencing. For the most part probation will likely be a liberal determination based in rehabilitation and treatment. They tend to shy from moving straight to punishment and incarceration in most instances.
So it all comes down to if the prosecutor is too one sided?
Will the judge be the friend we need?
Will probation be the friend we need?
Believe it or not sometimes probation and the judge are the ones looking for harsh punishment.
The Poker Game: Plea Bargaining and Criminal Defense
If we are without a friend in the judge or probation, then the district attorney may be our ally in persuading the judge. Assessing all the parties and their viewpoints allows us to figure out where, what, and how we can achieve the best outcome. A tricky bit of play, kinda like a poker game.
In poker you don't always have the best cards but the game is truly based in psychology. Your opponents may not know all your cards either. Some cards are showing while some are not. The best hand doesn't always will the game. The best players play the long game not the short one.
From the Verge, Molly's Game is a Great Legal Movie
I love watching a good movie. In fact sometimes I even like watching a bad one. Molly's Game was very interesting, and had an inspiring story. I enjoyed the life story of Molly Bloom and the way it was presented. In real court rooms presentation counts for much more than most people think. Like a magician who takes a rather simple trick and using timing, finesse, and a certain "je ne sais quoi" an attorney can create a compelling story for the defense of his client's case.
Overcoming great odds, facing challenges head-on, and rising up from the ashes all make Molly's Game a fun ride. The bonus was knowing that this was based upon a true story and not just a fictional one. In my lawyer (legal) mind I was going through the movie looking at the process from a reality based perspective.
How much of Molly's Game is legal fiction?
How much of Molly's Game is legal truth?
How much of the movie was true to life, and not just in the life of Molly Bloom but what happens in New York Courts daily?
Most Cornell University and Ithaca College students are proud of their schools. They like so many these days display their school pride on shirts, hats, and even their cars. I have a license frame for my daughter's school on my car.
So is having a rear window college decal on your car against the law? Can the police legally stop your vehicle for having a sticker on your rear window?
The jury acquittal in a recent murder trial out of California (People v. Jose Garcia Zarate) shocked the nation. But delving into the facts of the case and what the defense was within the evidence revealed a bigger truth. When a prosecutor uses circumstantial evidence to prove guilt any and all reasonable explanations of innocence weigh in favor of the accused.
California's circumstantial evidence law favors the innocent, does New York law follow? Does New York circumstantial evidence law clearly help those on trial?
Someone recently contacted me about a traffic violation. He thought it might be good idea to have his relatives send in notarized affidavits to the judge. They were in his car as witnesses to his driving.
They wanted to avoid having to come to court, he also wanted to avoid having to come to court, and he also wanted to have a trial on his tickets. What people want might not always reconcile with what the law demands.
People need to know their rights. That is not just a blanket statement but is the truth. Because if you know your rights then you will have a better understanding of legal process. With that understanding can come a deeper knowing about making decisions.
Many people often just do what a lawyer says is best. Because they just don't know how things work people don't make informed legal decisions.
Can you use a affidavit as testimony at a New York trial?
Can you use an affidavit (notarized) statement at a New York traffic ticket trial?
A recent federal medicare fraud case out of Texas has a lot of lawyers wondering. Why would a judge sentence a woman with two young kids (age 7) with stage 4 metastatic cancer to 75 years of incarceration? Well I've read through this case and have my own take on how this happened.
In our criminal defense practice I always keep two things in mind:
Why does a judge sentence harshly? Why would a judge show leniency?
For over a decade New York has been ratcheting up penalties for DWI. In 2010 our state was one of the first to make ignition interlock devices a must for all first time drunk driving convictions. Then law went from a 6 month interlock to a 12 month interlock. Alcohol evaluations and treatment are now mandatory for those convicted twice within 25 years.
Then in 2012 the DMV began applying a lifetime look back for problem drivers. Those drivers with even a 25 year old conviction were facing strict administrative license penalties. The purpose of all this new legislation was to severely limit or to revoke the driving privileges of those convicted of DWI offense, accidents, or multiple violations.
New York's recently passed sealing law, CPL section 160.59 is a sharp departure from this trend for harsher punishment. The law's primary focus is to shield criminal convictions on rap sheets from public disclosure.
Can you get your misdemeanor DWI convictions sealed under the new sealing law? Can you get your felony DWI conviction sealed under the new sealing law?
Just recently we have seen an uptick in the number of Upstate New York police departments using video. This isn't the video of a few years ago on VHS tape either this is high quality digital images with clear sound. Video is not always positive or negative in every DWI case.
Can video help in the defense of a New York DWI case? Can video destroy the defense of a New York DWI case? Does video still matter if the DWI case has a breath or blood test? Does video matter that much in a DWI refusal case (with NO blood or breath test)?
Driver's License from Another Country Confuses from life in Saudi Arabia.blogspot
Cornell University is one of many excellent colleges in New York State which attract thousands of students from countries all over the world. These students come for doctoral and post-doc programs in the fields of science, hotel management, architecture, and engineering. Most have a specific time period for their stay in the United States. It could be for years but most are not intending for New York to become their permanent home or place of residence.
Can these students legally drive on their international driver's license? Do these students have to get a New York State driver's license? Can police ticket them for driving with an International Driver's License?
You can plan and plan but if you fail to execute then all is lost. I spend a lot of time in preparation for defending my criminal cases. Having a well laid out plan is great but what if I don't put it all together and get it all to the people that matter.
Why Preparing for the best outcome means laying out the reasons for leniency? Why Judges want reasons for being or showing leniency?
A well crafted apology begins with Ownership of what you have done. After you have owned and taken 100% responsibility for your actions the next step is just as vital: Contrition.
Remorse for your actions is in some people's minds kinda like repentance. Without getting religious many of the concepts and ideas present in good apology do have biblical overtones.
How does remorse work to show or prove a healthy mindset? How does expressing remorse lessen punishment and consequences?
