Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
This video highlights the first problem when dealing with a New York DWI refusal case. If you miss the first DMV administrative license hearing, because your attorney reschedules it OR the police don't show up OR it is adjourned to another date, then it may take many, many months for Albany to reschedule it.
This is months without a license (it is suspended).
This is months without getting credit (time served) towards a suspension or revocation.
This is months without getting an opportunity to challenge the evidence.
This is months waiting for closure and putting this behind you.
Hence the importance of the FIRST scheduled hearing, and your attorney's role in that process. In some cases this first DMV DWI refusal hearing date can be rescheduled (only the first) via the court/judge.
See my previous blog for more issues or potential problems with DWI refusal cases here:
Lansing Courthouse and Town Hall 29 Auburn Road = Route 34B
Lansing, NY sits on the east side of Cayuga Lake. It is a beautiful little town. Crossroads Bar and Grill restaurant is a local favorite, IMHO better food by far than many of the fancy Ithaca hot spots, and sits minutes down the road from the courthouse. They have sitting on an outside patio for those great weather spring and summer months. The courthouse sits off of Route 34B / aka Auburn Road which becomes Peruville Road up at the Dunkin.
The Sign on 34B to Look for!! Make a Left into the Parking Lot
Across from Cross roads there is the Dunkin Dounts Coffee/ Xtra gas station. Gas here is great because they have premium without any ethanol.
Lansing Court jurisdiction takes in our big Ithaca Mall, so it sees lots of shoplifting (petit larceny) cases from Target and Best Buy. In addition, the surrounding byways and highways are dark, winding, and not well developed so many DWIs cases wind up here.
I see many more DWIs around here with accidents or just winding up in ditch in the icy and snowy winter months.
Conveniently close by are: The Tompkins County Jail, and Tompkins Sheriff Station off Warren Road (one exit up 13), and just up the road from the Tompkins County Airport.
Turn in to Court Before the Sign or You've Gone Too Far on 34 B
There are two court judges, two court clerks and two different court sessions: one in the morning and one in the evening. Just the luck of the draw which you get, both judges are fair.
Court Sessions are: Thursday starting at 7:00 p.m. and Tuesdays starting at 9:00 a.m. It is a very well run, and organized court. Out of the hundred (yes 100 +) I go to this is a favorite for there great response to paperwork and timing.
Judge W. David Banfield with his clerk Jennifer Sandsted
Judge John Howell with his clerk Melody Lombardo
607-533-3667
fax
Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
Growing up I had three main interests besides girls. I loved Magic, Photography, and Bodybuilding. These occupied many hours of self- study and energy. My sister thought I had unhealthy obsessions with these things. I would buy magazines, read books, and focus on nothing else.
Constraints Make You Creative
I had limited finances (poor kid from a poor family) so with this as my constraint I looked for used equipment, went to the library, and learned to be resourceful at an early age. Waste nothing, use everything, and make the most of what I had. I can still remember the New York library section for magic to this day, 793.8.
My little basement gym turned into a crucible for change, this grew over time as I accumulated mismatched weights, odd bars, and benches. With these I learned valuable lessons. No pain no gain. I learned that there was a price to pay for everything I wanted. That I would pay this price in advance for what I wanted. If I worked hard enough and long enough I too could succeed.
I went down to that basement Brooklyn gym night after night with one goal in mind, build myself, and show them. Them being all those with, with the luxuries, with the advantages, and with the resources. That driving force led to a 3rd place NYS Powerlifting trophy (NYS Amateur), a basement darkroom, and a magic performance to NYC Mayor Beame.
That same mentality, brought me to earning professional degrees, passing multiple bar exams, building very successful businesses, and having a wonderful wife.
Too Many Advantages Can Be a Disadvantage
I believe that companies and people that give themselves permission to spend to build and create do themselves a disservice. Having finite resources or thinking you do forces you to go outside the box. To make more and do more with what you do have fosters and encourages deep reflection. I believe that having too much or a mentality of wastefulness leads to aimlessness.
Doing the most with what you have is a philosophy. It is my ideology that truth comes from the bottom, from your core, comes from when you are running on fumes, comes when you become real and authentic, comes from being lean, and from being hungry. As Arnold used to joke, you gotta Stay Hungry to win and continue winning.
Success by Formula NOT Chance or Luck
I tell you all of this not to try and impress you with what I have done or accomplished. I share this because I believe that ANYONE can exceed their hopes and dreams. Having a focus, putting your energy, time, and resources into it wholeheartedly, and then following through by giving back to others is the KEY. Being good at anything and achieving anything you truly desire is not by luck or chance. Although amazing opportunities that seem like sheer luck for these may pop up along the way as your momentum builds.
Who I was as a Chiropractor, who I am as a lawyer, husband, father, and man are directly related to embracing the lesson of resourcefulness. Making the most (and doing the most) with what you have is the Winning Formula. Often having less or nothing at all is far better than unlimited resources.
Probation Departments have a Tough Job
Monitoring and Supervising Thousands of People
from co.jefferson.ny.us
I get calls from people asking what is this thing called a CD (conditional discharge)? What does it mean? Nobody (my attorney included) explained it to me.
So to begin there are TWO main types DWI revocable sentences:
The CD (one year) and Probation (two or three years). They can be more similar than you think.
Note: Most judges will sentence to the old standard of three years. Probation is also called "community supervision." Probation is always monitored in the county of your residence NOT the county of the DWI occurrence.
Final Court Dispositions
Sentencing is the final disposition of your DWI case. The last day you will hopefully need to appear (physically) in Court. Although some judges like progress updates, these can usually be faxed or mailed to the Court.
The Court's final sentencing SHOULD clearly state how things are to be disposed of in the future by you for the Court. Should is a big word because in busy Courts (like in the City) or with busy lawyers (like legal aid or public defenders), you may not fully understand what is expected of you. I believe that your lawyer SHOULD give you a final summary of what is expected (what you still owe) of you. This can be in the form of a closing letter. Many lawyers give you nothing (as to a closing document).
Are you to just owe something to the Court directly for a CD or owe something to County Probation? Owe "as in" have an outstanding obligation or a duty that must be satisfied. The entire DWI sentence will have a list of things that need to be completed by you. Each condition will have terms (timelines, due dates). If not completed by this or that date or time, you are then delinquent!
Common DWI CD and Probation Obligations
1. Court fines and NYS surcharges;
2. VIP (victim impact panel) attendance;
3. DDP (7 week DMV drinking driver program);
4. Drug/Alcohol OASAS Evaluation;
5. Ignition Interlock Device installation and monthly checks;
6. Treatment and/or rehabilitation for drugs and/or alcohol;
7. Counseling for mental problems;
8. Commit NO new crimes, NO new arrests for anything!
RE-vocable Sentences are Cancelable
Both the sentence of probation, and of a Conditional Discharge can be revoked by the Court. The sentence given by the Judge can be cancelled by the Court at a later date. This is usually due to a Delinquency. Delinquencies are usually in the form of unmet or incomplete obligations. If you did not do something at all, or complete something fully, then the Court can bring you back (command you) into court for a re-sentencing on the plead to charge. If the Court discovers you were re-arrested, you can also be brought back to Court.
When the delinquency is during probation it is usually called a Violation of Probation (VOP). Remember that both Violations or a delinquency only require a very low level of proof. It is far less than the beyond a reasonable doubt standard of proof required for criminal charges.
CDs and Probation are in lieu of a sentence in jail. Jail = Punishment
There is always the possibility of a jail sentence after a violation or delinquency of a revocable sentence. Jail is to punish and to deter future bad behavior. This is because CDs and Probation are intended as Rehabilitative sentences. These are NOT supposed to be Punishment focused sentences.
Conditional Discharges and Probation are Supposed to be Therapeutic and Rehabilitative
In Letterlough 86 N.Y.2d 259 the Court of Appeals reversed defendant's DWI conviction because of the UNLAWFUL condition that the Court imposed which required a scarlet letter license plate that stated "convicted of DWI." The Court stated that Probation (and CDs) must not be designed with the primary purpose of punishment or deterrence. Conditions of Probation (and CDs) are supposed to be fundamentally rehabilitative.
CD or Probation Conditions are to be made based upon the following criteria:
1. reasonably related to rehabilitation of this specific person;
2. individually tailored in relation to the offense;
3. reasonably necessary to ensure this person lead a law abiding life.
What is required to Start a Delinquency (Violation) Action Against YOU?
This is under CPL (criminal procedure law) 410.70:
1. Someone must claim that the delinquency or violation occurred during the CD or Probation time period;
2. Reasonable cause to believe (civil proof standard) you did violate;
3. A written declaration of delinquency;
4. A decision on a probation officer (or ADA's) request within 72 hours;
5. Prompt, reasonable, and appropriate action to make you come to Court.
What are "My" Potential Defenses to a DWI Delinquency? 1. Is there reasonable cause that you really violated?
Ignition Interlocks are not infallible. Relapse is common among those with addiction. 2. Was this infraction (violation/delinquency) intentional? Did you miss a payment or treatment because of financial or family or medical reasons? 3. Did you have to drive a Vehicle without a device for some higher purpose?
I had a client who drove a work truck a short distance, and received an AUO. This also lead to a probation violation. The Court and probation forgave based upon his excellent history and the purpose for the driving in this instance.
Who can Send a Notice of Delinquency or Violation?
The ADA (assistant district attorney) can file a notice of delinquency;
The Probation officer can also file a violation;
The Court (judge) can file a notice of delinquency.
All of them or none of them can decide to violate you. Sometimes a person on probation will violate multiple times but NOT be violated by their officer. Sometimes one big mess up can trigger it. I have seen the gamut over the years.
Main Factors that Determine Whether You Will Be Violated (declared delinquent):
1. Your history with the Court post sentencing;
2. Your history with Probation post sentencing;
More time, more completion of tasks, more progress (good history) less chance of being violated.
3. Your relationship with probation and the Court (judge);
Have you been honest? Have you been trying to complete and comply? Have you been an annoying and fighting every step of the way?
4. Was your original case and charges very serious (accident/injuries)?
5. Were you given a chance (opportunity) by the Court and Prosecutor at rehabilitation?
6. Who is your probation officer?
7. Who was the Judge on your case?
This is both for a CD or Probation.
Always consult with an attorney about any criminal or
non-criminal charges you have pending to discuss your options and/or defenses.
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 90% 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 440 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.
You know the old expression, "nothing ventured nothing gained." If this isn't an AMER-I-CAN philosophy then I don't know what is?
Well it is as applicable to DMV license refusal hearings as it is to asking a girl for her number (sorry I'm old school). I wouldn't be with my lovely wife (25 + years) if not for going up to her, and her friends. She towered over me with her shoes (she's 5'9, me 5'6), and my confidence won her over.
I had a guy call me the other day, and tell me that his attorney told him not to even show up, why bother, you are going to lose anyway, right? His attorney could not be more wrong. The hearing is good to attend, and to be prepared for on many levels:
1. You will definitely hear "how" the cop plans to testify about you
2. You will learn how they plan on proving that you were intoxicated (odor, field tests, coordination)
3. You will be able to challenge some of the evidence (their opinion)
4. You can point out any issues with the police safeguard procedures (4th, 5th, and 6th amendments)
5. You can make a record (they are taped) of any of this and/or bring a Court Reporter
6. You can have your client testify on their behalf about medical issues
7. You may be able to get some pre-trial discovery (police report)
8. Your attorney may even get the cop on your side with the ADA to help your case
Over the years I have developed working relationships with many troopers, deputies, and local police. These people appreciate cooperation and respectfulness with law enforcement. A good word from them with the ADA may mean the difference in reducing charges or penalties.
I have won some hearings because the police have the burden of proof. They must state on the record their reasons for the stop, the arrest, and how they processed you. How they warned you? How they explained your rights? If they did not follow procedures properly then the refusal can be thrown out, you win and they lose.
In the end, the hearing can be a WIN in many other ways than just your driver's license privileges.
Lawyers? An Overreaction, you decide? from quickmeme.com
People accept (or reject) bad news in a multitude of ways, some just avoid it completely, as in denial, some get angry at themselves, and some get angry at others. Recently, a man in Plattsburgh, NY set himself on fire 2 hours after his DWI arrest. Now the man was 60 years of age, and I don't know the back story but overreaction to DWIs is not as unusual as you might imagine.
The Reaction versus The Response
I have seen the gamut of overreactions to first, second, and third DWI arrests ranging from drinking binges to suicide. I have seen people get new DWIs following pending DWI charges.
First, why? because once people think they messed up it just drives them into an even greater (deeper) depression. Hurting yourself becomes the norm. They feel at some level they need to be punished and self punishment is maybe more controlled and predictable. I believe that Any "reaction" is bad AND it is far better to "respond" to YOUR problems. It may sound purely semantic, as in word games but takingresponse-ability is ultimately healthier.
Larry Newman, Junior psychologist?
Now before you label me amateur junior psychologist let me state for the record, I am not a psychologist, nor trying to diagnose mental disease of my clients but I do care about people. I want them to maintain a healthy perspective as to what they are facing with any DWI charge. Waste of life and human potential is so horrible to watch. Getting a DWI is not the end of your life. Yes it is a problem, a looming challenge, and there may be issues (some underlying) that will need to be addressed but overreaction helps noone.
Least of all, YOU!
Self Infliction of Pain, not pretty. from ibtimes.com
Playing it Over and Over: The Broken Record of Pain
Some people get caught in the stages/cycles of grief (anger, denial, acceptance, bargaining, depression). They may cycle over and through these as with any "loss" or "perceived loss." I call it the broken record of pain. This is neither healthy nor productive. You are standing in place self flagellating (as in, stop hitting yourself).
So here is my take as a DWI Defense lawyer, four things you should keep in mind to best deal with your DWI charges:
1. There is no black and white DWI charge.
All DWIs come in shades of grey, discuss with your attorney where yours lies on the spectrum of cases and situations. Compare your situation to others to have a healthy context. Usually a DWI without people or property damage is better than one with it.
2. What is your true exposure?
What is the worst case scenario? What is the best case scenario?
Is it jail? Is it probation? Is it community service? Is it financial? Is it your job? Is it your license? I other words what are you facing from the Court, the DMV, and your family/friends. Can you, will you face the worst and still surmount it?
3. What can "you" be doing to help your situation?
Being proactive early can alleviate a lot of uncertainty. Taking ownership of your issues with your attorney is healthier than just giving your problem away to someone. I like the participant approach, you are better knowing about everything than being a mushroom in the dark. Whether the issues are health and/or legal related being a spectator dooms you to repetition.
4. Ask lots of questions.
This approach to seeking answers aligns completely with the participant model. You may find that the Court will give you time to pay any fines or surcharges, you may find that the license loss is for a much shorter time period than you imagined, and you may find that jail/prison is not likely. After the attorney has all the facts, discovery, and documents they may find that there are viable defenses to your charges.
In the end, to "err is human and to forgive divine."
I personally have learned and grown more from my "mistakes" than from all my "successes." Problems are deeply transformative if you allow them to be. I believe that your DWI can be another lesson and ultimately a blessing if you have a better perspective.
Larry Newman
Doctor of Chiropractic
Attorney and Counselor at Law
I love Jack Nicholson, I love great movie dialogue, and I love big picture ideas. In the blockbuster movie, "A Few Good Men" Jack testifies and uses that iconic line, "YOU Can't Handle the Truth." Well in a great many areas of life people need things to be simplified. It happens in medicine, and it happens in law. Do you really think nerves get "pinched" come on? Yeah, doctors use easy explanations, hence terms like "side" effects, and plenty of "it just works but I can't say how."
In 2012, people are definitely more savvy, more interested, and more open to really learning what the hell is going on. The internet is an open and abundant resource of information. The problem is all this information eventually requires organization and interpretation.
An Object Lesson in Understanding Re-Licensure
Last night I got a phone call from a DWI client. His case was over, but his license or re-license nightmare was still continuing. Post-sentencing in any DWI case people have a list of things to do (called conditions). Some things just don't jibe (make sense) and people can be confused. This occurs more frequently with out-of-state license holders. Just another level of complexity to conquer. try as i might to make things easier, or work out they don't always do. As I like to quip, it's simple but not easy.
Communication Breakdown
Apparently, the communication between the Court and the New York DMV had issues (delays) and because of that his DMV license paperwork was delayed. BTW I had contacted the Court three times post sentencing to remedy this. The clerk did the right computer inputs but the DMV was dragging it's . . . I tried to discover or uncover what was going on. The good news is that this is not a common occurrence but when it does happens it is not pleasant experience.
First Truth:
This is one of Murphy's laws, we work and we prepare and still it doesn't all come out perfect. It was just taking more time than it "should." Normal timeline, 2 weeks from the Court to the DMV. Did I say, normal? What happens normally? I have had instances of 6 weeks to 6 months. How often do government things take more time than we want or feel they need to happen?
Was this a Big surprise? The government, the court, and the DMV was taking more time to resolve his license issue. Is anybody chasing after your tax refund? Is anybody looking after your social security check? Another fantasy to believe that this process is always fluid or fluent or quick.
Second Truth:
When it comes to Travel these days, getting Identification, Licensure of any type, anywhere, and all things certification/proof related the government wants (demands) more and more these days. In the Post terrorist, fear laden world that we live and work in, nothing government document driven is happening fast and easy.
The DMV demanded an Out-Of-State License record (abstract) no more than 10 days old. This led to a domino effect because he was from another state. Because of the original delay by the Court and the New York DMV his abstract (driving history from earlier) was now too old to use. The DMV wanted an official "new" one.
Oh the fun of "Getting Certified Official Sealed Original Records" while living Out-Of-State
Try getting your official license record from another state quickly and easily. The special word is official (as in certified) because getting a record online may be easy but getting an original stamped sealed certified document not so much.
Third Truth:
This is the biggie, New York State Courts (Judges) DO NOTGRANTdriver's licenses or privileges.
Yes, we (lawyers) tell people all the time that the Court is going to give you a hardship privilege license or grant you a full privilege back BUT Now the Truth. Courts just take less they don't give anything license/privilege related.
Taking Away Your Delicious Turkey Dinner
I love Thanksgiving and your full unrestricted driver's license is kinda like the soup to nuts typical November Tgiving meal. All the fixings: Turkey, gravy, mashed potatoes, stuffing, yams, cranberry sauce, apple pie, etc.
In a DWI case, the hardship privilege following a Court Suspension is like taking away your Turkey dinner but leaving you some peas and potatoes. I didn't give you a "hardship" dinner, I left you with a minimum (or minimal) food to subsist. Certainly not a complete unrestricted license but the bare bones minimal (work, school, and medical care) privileges.
When a Court grants you a 20 day license at the end of your case (at sentencing) again they don't give you a license. They are merely placing a STAY (DELAY) upon the DMV mandatory suspension. ASTAY of a suspension is merely A DELAY of a suspension. Again, nothing is truly awarded, it is just not taken NOW!
Nothing is Ever Given, Awarded, or Granted
Only the DMV of any state gives a license/privilege to drive a car. Courts, Judges, and even prosecutors love to say they are giving things but in truth they are merely delaying the DMV or NOT taking everything. They even believe it so it must be the truth, right? That sounds like the government doesn't it? They "cut" government spending by spending less. Like my wife saving me so much money by getting deals at the store. But honey they were on sale so it was like getting it free?
So back to my story, My client wanted me to do something about his license. He felt as though I was a disappointment. I should have (make) the Court "grant" him another 20 day license or privilege. After all the Court and the DMV delayed (messed) up so they should accept responsibility (another fantasy) and make it right. The day I see an insurance company, government agency, or licensing authority apologize and make amends I think we all better check our temperature. It means I must be running a fever because it doesn't happen very often. A nice story but nothing more.
I Told the Truth and I was Not to Be Believed
I tried to explain the madness of his request but alas it was too late. He could not appreciate or deal with the reality of it all. I was much like Jack in that the truth was not going to be accepted or welcomed or understood at this point or perhaps any other in the future. I feel bad when my communication is broken or misunderstood by a client. But then again blogs like this one would not exist but for people who were mad at me and/or the system we all have to deal with.
TWO KEY Takeaways:
1. When entering (embarking) on your New York State DWI case if you have an OUT-OF-STATE license be prepared to get a copy of your state's driving record (history) immediately at the onset for the Court, for the drug/alcohol evaluation, and for District Attorney negotiations
AND
2. Be prepared to get a certified (official) copy at the end (close in time) of the matter for the New York State DMV. You will need it to get a post revocation New York conditional license.
Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law
After representing and defending hundreds of people for DWI and traffic charges over many years one thing remains the same, the Commissioner of the NYS DMV can be much like the Wizard of Oz.
Much like Dorothy , , , Sometimes they (the DMV) withhold privileges, and I am left wondering why? Is it one thing? Is it a combination of factors I fail to see or my client failed to disclose? Is it something we can remedy? What do they want? What do they now require? I can guess or I can call them up or I can send them a letter.
Should I Follow the Yellow Brick Road?
"What? I'm still revoked?
Sometimes they will tell me and sometimes they just deny without an explanation, except to say at this time we are not "extending" privileges. So we can "apply" again in the future. After time has passed, or my client has completed a program or programs?
I have seen privileges to drive withheld "indefinitely" after DWIs, reckless driving charges, vehicular assaults, after my client was found guilty of both DWIs after a trial, and after medical suspensions. The reasons to deny a license or reinstate one are endless. Usually it is based upon a combination of factors, a set of circumstances, and/or a history.
Of the situations of indefinite periods of license revocation that occur I usually encounter one of two things: Negative Units or History of Alcohol Substance Abuse. Note: I am not getting into the multiple DWI reason for withholding a license as that is usually a given (easily explainable, understandable, and defined in law).
What are Negative Units?
1. The NYS DMV has a special system in place that is largely unknown by most attorneys and lay people. Under 15 NYCRR § 136.6 DWs, some traffic offenses, and accidents are not assigned the traditional "points" against your license instead they are assigned just "negative units" by the DMV.
Easy Formula: More Units = Less Safety = No License
15 NYCRR § 136.6 is a "safety factor" section of NYS law that specifically assigns "negative units" to different offenses/accidents/DWs. This is part of the record that the DMV Commissioner looks at if they are considering giving you back your license to drive. BTW things like reckless and speeding get assigned points and negative units. So a double whammy of trouble. Everything "bad" driving/behavior related can cause an uptick on your safety factors. In this instance more is not good but bad with a capital B.
The Surprise
People are often confused after completing all the NYS programs that they are denied reinstatement of their license/privilege. It is likely that if you have too many negative units (more than 25 pursuant to Under 15 NYCRR § 136.4(a)(3).
If you are revoked for a DWI for example, maybe 2 DWs in the same event, and you have other driving offenses when the revocation period ends you apply for your license back. The DMV doesn't give you back your license because you have too many negative units. The six month or one year revocation or the ability to get it back after taking the DDP never happens.
Do You Have a Drug/Alcohol History?
2. The second major reason not to reinstate privileges is if they classify you as a person with a history of Alcohol/Substance Abuse. The NY DMV also states that any driving record (abstract) with 2 or more "alcohol" related charges (could be a DWAI or DWI) within 10 years and boom, you now have a history of alcohol abuse. This is further defined in Part 136.1 (b) (3) of the Regulation of the Commissioner of Motor Vehicles.
Getting it (Your License/Privilege) Back After Being Classified
So to get your driver's license back after having 2 incidents within this 10 year time frame you MUST fill out and file DMV form DS-449, and submit evidence of either rehab (following an OASAS eval and follow up recommendations) OR a clean bill of health (ie. after a drug / alcohol eval no further treatment is necessary. Form DS- 449 is called "Alcohol Abuse Rehab. Program Summary."
New York and New Jersey are kindred states in many respects. I always felt like I married up because my wife is from Northern N.J. (Verona). Her family was not too impressed with my table manners at Christmas (I'm from Brooklyn). They had way too many spoons, forks, and glasses.
Anyway, the fable of beauty and the beast is not what this blog is about, it is about how those with a New Jersey driver's license facing a NYS DWI will have to deal with both the NJ DMV and the NYS DMV.
The reciprocity of suspensions and of programs between the states is important to know about.
New Jersey DMV: Three Main Things (surcharge, suspension, and program)
1. NJ will assess a 3 year, $1000/year insurance surcharge on your NYS DWI, btw NYS DMV will assess an additional $250/yr for three years. From NJ website brochure on surcharge: All Alcohol and drug related offenses These surcharges are billed each year for three years: • In-state operating under the influence of liquor or drugs (DUI) • Out-of-state DUI (ie. NYS DWI) • Refusal to submit to chemical test (ie. NYS refusal) The surcharge for operating under the influence or refusal, whether it occurs in New Jersey or another state, is $1,000 a year for three years for both a first and a second violation.
2. NJ will also suspend driving privileges depending upon the driver's BAC level at time of arrest.
BAC (blood alcohol concentration) less than .10, 90 day NJ suspension BAC (blood alcohol concentration) more than .10, 7 month (210 day) suspension
NOTE: NJ offers NO conditional (occupational/work) license privileges
see the New Jersey Department of Motor Vehicles Website to confirm all of this
3. You will need to do the NJ Drinking Driver Program or the NYS DMV DDP
-Basic NJ first time program is two (6 hour days) inan Intoxicated Driver Resource Center
-Compare to NYS DDP is 7 weeks (1.5 hours/night) = 15 hours total
(Most NYS Courts, the DMV, and DDP no mandates an evaluation/assessment)
New Jersey has an IDRC in each county for first and third-time offenders and three regional centers for second-time offenders
During the program, offenders attend mandatory Alcohol and Highway Safety Education courses
IDRC also evaluates each offender for an alcohol or drug problem and determines the need for treatment
If treatment is needed, the center refers the offender to an appropriate provider for a 16-week minimum treatment
Offender may supplement the treatment with attendance at a self-help group
IDRC monitors compliance and reports noncompliance to the courts and MVC
Satisfactory participation in IDRC is a step toward restoring your license. Failure to comply will result in further license suspension and possible jail time.
THE KEY Takeaway:
Whatever state you come from or go to you (with a DWI/DUI) you will have to deal with the DMV in both jurisdictions (understand the rules/laws) to completely release and clean your driving record/history.
Lawyers love to use common words and terms that mean different things legally.
Words like:
Brief: a legal document not your underwear Motion: a legal request for the Court to do something but not necessarily involving physical movement Plea: your answer to a charge not a beg or a request
So what is a DEMAND FOR DISCOVERY?
First, Discovery is a demand for information by a person and/or party to a lawsuit.
Second, there are different types of Discovery:
In a Civil case it is the proof/documentation of negligence, and of damages.
In a Criminal case it is the evidence that the government/state/prosecutor plans to use against you.
The evidence and proof they will use to prosecute you for crimes.
Criminal cases are broken down into those offenses that are crimes and those which are Non-crimes.
Non-criminal offenses are also referred to as Violations.
Violations can still have penalties like crimes. You can still go to jail for a violation, you can still lose your license from a violation, or lose your ability to receive Federal/State benefits from a Violation level offense. Depending upon it's nature Violations can impact you and your life.
FIRST things FIRST: Make Demands Early
In the beginning of any Defense of a DWI CASE or any Criminal Matter there Must be a DEMAND for Discovery. This should occur after an Initial Appearance (Arraignment). Sometimes this is framed by the attorney as a demand for A Bill of Particulars. This is how the prosecution (DA) plans on proving their case.
DISCOVERY can be (but is not limited to): Witnesses and witness statements, police reports, blood/breath/urine evidence, breath testing procedures, videos, audio recordings, etc.
In a Violation (traffic offense) Case the Request for Discovery is called A REQUEST (demand) for a Supporting Deposition. NOTE: In a NYS ticket (vehicle and traffic law) case you are onlyEntitled to a supporting deposition (affidavit) of the officer/trooper/deputy stating the crime (offense) they believed/saw you commit. The Main Purpose of Discovery 1. The purpose of discovery is to see what you are up against. 2. You attorney must "discover" (UN-cover, reveal) the strengths and weaknesses of their case against you.
Here is the beginning of my DWI Discovery Demand:
DISCOVERY
I. PLEASE TAKE NOTICE that pursuant to CPL 710.30(1), the defendant
hereby demands that the District Attorney specify, in detail, particulars of
the evidence intended to be offered of statements made by defendant to a public
servant and of particulars of evidence identifying the defendant as a person
who committed the offense(s) charged by a witness (witnesses) who has (have)
previously identified the defendant.
II. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 240.20 the defendant
hereby demands that the District Attorney disclose and make available for
inspection,
a. Any written, recorded or oral statement of the defendant and of any
codefendant to be tried jointly, made other than in the course of the criminal
transaction to a public servant engaged in law enforcement activity or to a
person then acting under his direction or in cooperation with him. This
encompasses all statements made by defendant regardless of whether the People
intend to offer such statement at trial on their direct case or on cross
examination of defendant. Such statements should include but are not limited to
any form signed by the defendant concerning: 1) statements made by the
defendant to police officers about the physical condition of the defendant
while in custody, and 2) information orally given by the defendant to police
officers who have recorded it. This demand also encompasses any writing
containing the substance of information given by the defendant to police
officers.
b. Any police property voucher and police receipts for property
containing a list of property that the defendant either had in his possession
when arrested and/or containing a list of property that the police removed from
the defendant upon arrest.
c. Any written, recorded or oral statement of the defendant made to a
private citizen that the People intend to offer at trial either on their direct
case or on cross-examination of defendant.
d. Any transcript of testimony relating to the criminal action or
proceeding pending against the defendant, given by the defendant or by a
codefendant to be tried jointly, before any Grand Jury.
e. Any written report or document or portion thereof concerning a
physical or mental examination, or scientific test or experiment, relating to
the criminal action or proceeding and which was made by, or at the request or
direction of a public servant engaged in law enforcement activity or which was
made by a person whom the prosecutor intends to call as a witness at trial, or
which the People intend to introduce at trial.
f. Any photograph or drawing relating to the criminal
action or proceeding which was made or completed by a public servant engaged in
law enforcement activity, or which was made by a person whom the prosecutor
intends to call as a witness at trial, or which the People intend to introduce
at trial. This includes but is not limited to:
1. Crime scene photographs and drawings.
2. Any arrest photograph of the defendant or other photograph of the
defendant which came into police custody.
3. Photographs of any lineups involving the pending case.
4. Any photographs exhibited to witnesses including that of the defendant
and or other persons involved in any photo identification proceeding, whether
or not an identification was made by a witness.
5. Any composite sketch or drawing attempting to depict any of the
alleged perpetrators of the crime.
6. Photographs of any witnesses or alleged victims showing the physical
condition of that person.
7. Photographs of police department flyers which attempt to depict any
property involved in the pending case which would include but is not limited to
property alleged to have been stolen during the commission of the crime or
property seized from the defendant or a codefendant.
g. Any other property obtained from the defendant or codefendant to be
tried jointly.
h. Any tape or other electronic recordings which the prosecutor intends
to introduce at trial irrespective of whether such recording was made during
the course of the criminal action.
i. Anything required to be disclosed, prior to trial to the defendant by
the prosecutor, pursuant to the constitution of this state or of the United
States.
j. Any audio or video tapes, computer printouts or entries, or other
electronic recordings made in the course of the investigation or preparation of
this case, including but not limited to communications of any kind received,
sent or monitored the Office of Emergency Communications, copy of any email,
voice mail, answering machine tapes or messages, dictation tapes, computer
disks, CD ROMs, or any other computer records or electronic media in which such
records are stored, as well as copies of any documents, tapes or other media of
any nature concerning any electronic surveillance, "trap and trace"
devices, alpha or numeric pager messages, telephonic or other electronic
communications of any type;
k. The date, time and place of the offense charged and the date, time and
place of the defendant's arrest.
III. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 100.25 the defendant
hereby demands that the defendant be provided with supporting depositions for
each and every violation of the Vehicle and Traffic Law charged in this case.
IV. PLEASE TAKE FURTHER NOTICE that pursuant to CPL 240.20 the defendant
hereby demands that the District Attorney disclose and make available for
inspection, photographing, copying or testing, the following property regarding
the alleged violation of Vehicle and Traffic Law Section 1192:
(a) Any written report or document, or portion thereof, concerning
physical examinations, scientific testing and/or experiments, relating to the
pending charge of Driving While Intoxicated and made by, or at the request or
direction of a public servant engaged in law enforcement activity.
The material requested should include, inter alia, if applicable,
the following:
1. Alcohol/Drug Influence Report Form
2. Breathalyzer Test Record and Breathalyzer Operational Check List
3. Central Testing Unit Work Sheet
4. Report of Refusal to Submit to Chemical Test
5. Simulator Maintenance Log for Unit Used
6. Entire Breathalyzer Maintenance Log for Unit Used, including records
of inspection, calibration or repair of said machine.
7 Breathalyzer Ampoule Test Record
8. Certificate held by the operator of the Breathalyzer machine
photographing, copying or testing the following property:
(b) A copy of all routine police reports concerning the instant case
except to the extent that they contain legal opinions or theories which fit
within the exclusion for attorney's work product (CPL 240.10(3)).
Depending upon the type of case, discovery demands can be many pages long. What is requested must be specific and detailed.
Knowing the details allows a focused challenge to the evidence or any areas of weakness.
Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
