Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
Many states are now recognizing the benefits of legalized weed both recreationally and medically throughout the United States. Canada just went legal in October of 2018. The backlash against all this legalization is beefing up by the police of DWAI marijuana arrests. In the fight against DUI cannabis the police are now using the Drager Drug Test 5000.
Can this device screen drivers suspected of being impaired by drugs?
How accurate is this new saliva tester for drugs?
Is the Drager Drug Test admissible in a New York court of law?
Sometimes a carefully planned and executed treatment program for drugs and/or alcohol can sway the judge, probation, and the prosecutor to leniency. Knowing where, when, and how to do this is a matter of evaluating the court, the District Attorney's office, and the judge.
Pilots like bus drivers, ship captains, and train operators are professional operators with a lower BAC of .04 for DWI.
This pilot had a .34 at 7am! He argued he never operated the plane and didn't even start the engines.
This video is the second about the dangers of old DUI/DWI/OUI from any state with a New York DWI or DWAI charge. New York DMV will have a 25 year look back period from the date of the most recent offense. You will likely have to fill out (honestly) the NYS DMV form MV-47, called the Driver Disclosure. Otherwise you can be facing a misdemeanor or felony just by failing to reveal old DUI/OUI/DWI/DWAI.
When Do You Require New York DMV MV-47 Driver Disclosure Form?
Usually the NYS DMV will require your driver history from other states you have lived and/or held a driver license prior to giving you any RESTRICTED or CONDITIONAL driving privileges in New York.
They are looking to see if you have a HISTORY of ABUSE. Any two DUI/OUI/DWI/DWAI within 25 years equals a history of abuse.
Paragraph (3) of subdivision (b) of section 136.1 is amended to read as follows:
(3) History of abuse of alcohol or drugs. A history of abuse of alcohol or drugs shall consist of
a record of two or more incidents, within a [10] 25 year period, of operating a motor vehicle
while under the influence of alcoholic beverages and/or drugs or of refusing to submit to a
chemical test not arising out of the same incident, whether such incident was committed within
or outside of this state.
You Can Be Denied a New York Conditional or Restricted License
(b)(1) An [applicant] application for a driver's license [shall] may be denied if a review of
the entire driving history provides evidence that the applicant constitutes a problem driver, as
defined in section 136.1(b)(1) of this Part. If an application is denied pursuant to this paragraph,
no application shall be considered for a minimum of one year from the date of denial. In lieu of
such denial, the applicant may be issued a license or permit with a problem driver restriction, as
set forth in section 3.2(c)(4) of this Chapter and paragraph (2) of this subdivision.
You May Have a License with a A-2 Restriction (Ignition Interlock Mandatory License)
(2) Upon the approval of an application for relicensing of a person who is deemed
a problem driver under this subdivision, the Commissioner may impose a problem driver
restriction on such person’s license or permit, as set forth in section 3.2(c)(4) of this Title. As a
component of this restriction, the Commissioner may require such person to install an ignition
interlock device in any motor vehicle owned or operated by such person. The ignition interlock
requirement will be noted on the attachment to the driver license or permit held by such person.
Such attachment must be carried at all times with the driver license or permit.
The Look Back Period is 25 Years for All DUI/DWI/DWAI/OUI
(3) “25 year look back period” means the period commencing upon the date that
is 25 years before the date of the revocable offense and ending on and including the date of the
revocable offense.
New York DWI and DWAI drugs criminal charges can affect people in many areas of their life. Bringing some certainty to some of these areas can often lessen the fear and the concerns.
Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.
Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
Brandt was stopped for violating V.T.L. § 1163(b), which he argues only applies to a moving vehicle that must signal a turn one hundred (100) feet prior to turning. Where the defendant's vehicle was stationary at a red light and he signaled his intention to turn while stopped, the one hundred (100) feet does not apply. The court agreed with this and his DWI charges were dismissed.
Police love to pull people at 4:00 in the morning, and sometimes they even misapply the law. Imagine that. A recently dismissed New York DWI case is a perfect illustration of great defense work.
The DWI court (NY has specific DWI courts now) only had one single issue: they had to decide whether the New York State Trooper had probable cause to stop defendant’s
vehicle on the basis that defendant failed to properly signal his intention to
turn thereby violating V.T.L. §1163(b). Do you always have signal your intent to turn your car? When do you have signal your intent to turn your car?
Timelines or deadlines are crucial in criminal defense. The NY 45 day rule states that we have only 45 days from the date of the initial appearance with counsel in which to file our motions. In other words the clock starts ticking on our ability to keep out evidence (suppress it) within those first 45 days.
If we do not challenge any of the evidence, then the default is that it all comes in against you at trial.
A drunk woman was wandering two blocks from an accident scene. She refused the breath test. She was later found guilty of DWI after a trial. This was later reversed because of a jurisdictional defect.
What is a jurisdictional defect? How important are the charging documents in any DWI case? How can I tell if my DWI case has one?
A case of First Impression. New York allows a person on felony level probation to use medical marijuana. A big win for all medical cannabis users, and those who see it's benefits.
This is history in the making as NYS lightens it grip on marijuana use. New York city has already declared it wouldn't prosecute marijuana use in the future as it did in the past. Marijuana in my opinion is not a gateway drug. It has many potential uses medically for PTSD, anxiety, and autoimmune diseases like Crohn's and Lupus. Marijuana is not the demon many people make it out to be. I think it's has many effective uses, one of which is long term pain management.
People v. Stanton was decided in August of 2018 and I think it speaks to our time of transparency and truth. It is time to take pot out of the backrooms. I believe it is time to have open discussion of using marijuana to help those in the population who are tired of all the side effects tied to prescription medicines.
With the number of prescription drug deaths at all time highs nationwide it's time to look at other less harmful substances. Medical cannabis can be used for long term chronic illness with little to no ill effects. As this case illustrates there are many people who see marijuana as an old answer to a new problem.
New York CDs and ACDs are very similar alphabetically but are worlds apart in meaning.
Conditional discharges are the most common sentencing option across the board for anything from a non-criminal violation to a misdemeanor and occasionally even a felony level offense.
Adjournment in contemplation of dismissal is where the judge and prosecutor agree to set aside (delay), adjourn if you will your case while they (contemplate) think about dismissing it.
With a New York CD you are most definitely convicted of something.
With a New York ACD you are most definitely NOT convicted of anything.
Both have terms and conditions.
Both have time periods to compete those terms, conditions, and/or obligations.
CDs are usually one year in duration but can be two years max.
ACDs are usually six months, and sometimes can be a year in duration.
IIDs (ignition Interlock Devices) and DWI go together, well like rice and beans. But knowing the most common way most people violate could save you or loved ones aggravation down the road.
New York has mandatory IIDs since 2010, and this was updated to one year IID in 2012. People that have been sentenced to a New York DWI under ANY VTL 1192 sub section except (DWAI drugs) will have a mandatory condition in place.
VTL (vehicle and traffic law) 1192 is the DWI section of NYS law.
This mandatory condition is called the A2 license restriction by the NYS DMV. It means you can only drive a vehicle with an installed ignition interlock device or IID. This condition is usually ordered for 12 months and you have the option to petition the court for removal after 6 months if you have no issues (failures) with the IID.
This condition never goes away based upon time. Could be there 20 years later.
This condition never goes away based upon circumstance. You don't own a car, you don't have a license, you live in another country.
This condition never goes away based upon finances. You don't have any money, NYS will subsidize your IID.
This video highlights the number one way we see people who violate an IID.
Upstate New York has lots of little towns with many speed traps. The top speed limit is 65 mph and the NYS troopers show no mercy in this regard.
Steuben County is beautiful this time of year but don't be distracted, your speed can get away from you. This part time court with part time judges can often be difficult to communicate with.
Have your tickets evaluated and explore your options with a traffic attorney before you decide to do anything. Quite often out of state people can be represented without any court appearances.
Newman and Cyr is a boutique DWI and traffic defense firm
located in Ithaca, NY and serving the Finger Lakes region.
Insufficient facts can get cases (and their charges) dismissed. This is Law 101. First thing, review the allegations they are making out against YOU. Look at all these facts carefully. They should be non-hearsay, not conclusory, and if true would make out the elements of the crimes charged.
Police need to allege facts that support their charges against you.
If not, if they are facially insufficient your attorney can then move to have them dismissed. Motions to dismiss are granted by judges when there are not enough, poor, bad, or unclear facts.
What is Facial Insufficiency?
Every crime has elements that must be met for you to be proven guilty. Some crimes require INTENT. That you intended to destroy property or that you knew that your driver's license was suspended. Some violations require a PUBLIC element. That your behavior caused a public disturbance.
The prosecutor and the police must set out these elements in their complaint or information against you. If the allegations do not support the crime, if they do not meet the prima facie burden, then you can move to dismiss the charges against you.
Charges that require INTENT can't stand up against you without INTENT.
Charges that require serious damages must have them alleged in the complaint against you.
Charges that require a public highway or road must allege the road or highway.
Quite simply a Prima Facie case needs prima facie evidence, evidence on it's face (at face value) without further interpretation or inference that you in fact did something and as if everything alleged were TRUE.
A recent July 2018 New York case of harassment and criminal mischief faced just such a challenge.
In People v. Toro, a guy hit his girlfriend, her phone went flying and broke. Police charged harassment and criminal mischief.
Toro plead guilty to the crime of criminal mischief in full satisfaction and went to jail. While in jail his 2nd attorney filed an appeal based upon the information's facial insufficiency to support the crime of criminal mischief. Toro had not intent to damage the phone, none was made out in the information against him. The first attorney may have missed this on reviewing the evidence against Toro.
There were no allegations that Toro intentionally damaged the phone.
There were no allegations that Toro had a mindset to damage the phone.
There were no allegations that Toro had conduct that showed he wanted to damage the phone.
Toro only wanted to hit his girlfriend, so maybe harassment charges (a violation) were supported by the facts but NOT the crime of criminal mischief.
The second judge dismissed the criminal mischief charges and Toro was released from jail after serving two weeks of his sentence.
Always read any complaint or information against you and see if it makes out the elements of the offense charged. Always have your attorney make sure that all the facts (non-hearsay) if true would in fact make out the charges.
The conditional discharge is the most common sentencing option in New York but if you violate you are then re-senteced. The judge can re-sentence to jail, probation, or a combination. This video highlights the various ways to violate a NY CD.
This ways you can violate a CD include many extras with a drug or alcohol based offense. In many DWI and DWAI drugs case the CD is a great end result because you self monitor and self supervise your obligations to the court.
New York State Probation on a misdemeanor DWI can be hell on Earth because you are regularly tested for alcohol and/or drugs.
For the average adult person to be so restricted is difficult to impossible. You give up many of your constitutional rights to privacy and person. You will be subject to many unreasonable rules.
I consider New York probation as having a parent with power over you. Generally parents lose control over you after you turn 18. They may influence you but have NO true power. Probation departments through out New York state run the gamut from easy to extremely hard on their probationers.
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.
Lots of calls about how to get a license after a DWI refusal
I have spent way too many hours going over and over the same things with DWI refusal callers. I make these videos to bring some clarity to how the DWI refusal in criminal court is separate but yet so important to the licensure. New York Refusals are not illegal but they do have consequences.
The New York DWI refusal is unlike any other state. In some states the refusal itself is a crime with separate penalties. Written into the New York legal statute is a very important piece of information. Two penalties with the breath test refusal: one year license revocation (New York) and consciousness of guilt instruction from judge to the jury. That is the reason for your refusal (they can infer) is you were conscious of your own guilt. And one other provision that many people know nothing about.
The New York DMV allows NO license UNTIL a plea to a VTL 1192 Offense
You will not get your license or license privileges back UNTIL your criminal case is completed, and has a plea to a VTL 1192 offense. The 1192 offenses are either:
DWAI alcohol VTL 1192 (1) Driving while impaired by alcohol
or DWI alcohol (common law) VTL 1192 (3) Driving while intoxicated
This plea of guilty to one of these can be by three means:
1. bench trial with the judge (non-jury trial)
2. plea bargain with the prosecutor (either the DWAI or DWI)
3. jury trial
Trials with DWI refusal cases are generally better to defend because there is NO BAC number.
The prosecution has NO blood or breath blood alcohol concentration to hang their case upon. So the whole case hinges on the police testimony (opinion) of law enforcement. In some cases with witnesses they can testify as well either to your sobriety or intoxication.
All DWI common law (opinion) cases are a matter of degree.
In other words what was the degree of your impairment by alcohol? Were you merely impaired or truly intoxicated by alcohol. That is the million dollar question.
