Understanding New York DWI Alcohol Evaluations Part 2

When I practiced as a Chiropractic Physician (before my legal career) I was trained in the use of a psychological manual called the DSM- III (this is now the updated DSM- IV). DSM stands for The Diagnostic and Statistical Manual of Mental Disorders. Think of the DSM as "Abnormal Psychology for Dummies" and you have a better picture. This manual allows doctors, psychologists, social workers, addition specialists and a host of other mental health care servers to quickly look up a set of symptoms, patterns, and other behaviors and make a "potential" diagnosis or diagnoses.

As a doctor I needed to differentiate (and sometimes place a rule out diagnosis) between physical illness and psychological illness. Oftentimes patients would have a layer of psychological problems/issues aside from and in addition to their disc or nerve or muscle injury. Now the reason I bring up and explain all of this is because this manual is the "go to" guide for evaluators. As a DWI defense lawyer the manual has new significance for me and my clients.

The manual describes alcohol abuse as ANY "harmful" use of alcohol. Harmful use of alcohol can be further described as any use that causes physical and/or mental damage. We all know that alcohol by it's very nature causes brain cells to die (alcohol blocks oxygen from the brain) so an abuse diagnosis is a very common one.

Legally, Alcohol abuse merely requires education. This can often be in the form of New York State's DMV 7 week Drinking Driver Program (DDP). The Court can force compliance with treatment, rehabilitation, and education related to any plea and/or conviction. In some New York counties this must come before a final case resolution, but in the majority of others it comes as a condition of discharge with the Court (after the final disposition).

The question on everyone's mind is so where is the line between alcohol/drug "abuse" and alcohol/drug "dependence"?

Well generally the following are some of the behaviors that those dependent on alcohol may display:

1. Drinking only one type of alcoholic beverage or preferring one brand.

2. Only going to events, get togethers, and parties that serve alcohol.

3. Being able to drink more and more over time by increasing their tolerance to alcohol.

So far these first three sound like my college days or the behavior patterns of many of us, but please read on,

4. Making a decision to quit drinking and then feeling compelled to drink.

5. Drinking to help a hangover (after a night of intense drinking).

6. A compulsion to drink (feeling you have to drink).

7. Getting shaky and feeling ill if you do not drink (alcohol withdrawl symptoms).

If you become DEPENDENT on alcohol then you should seek help. These last 4 critieria indicate people that have a problem with alcohol.

If we look at what the DSM-IV states we find the following:

If you have (display) 3 of the following 7 symptoms (over the course of a year) you are classified as alcohol dependent. By the way, Alcohol "dependent" is a nice way of saying you have "alcoholism."

-You Neglect activities (giving up on your job, social, and joyful pursuits) because of alcohol,

-You drink Excessively (large quantities over long time periods) beginning drinking early to late,

-You Can not Control your drinking or cut back on drinking,

-You Keep drinking even though it is affecting you mentally, physically, and socially,

-You spend a large majority of time in activities that involve drinking alcohol,

-You get nausea, shakiness, anxiety, and sweating if you do not drink,

-You can really put it away (you have a very high tolerance).

My own personal opinion from helping thousands of people as both a Chiropractor, and as an attorney is those people with drug/alcohol problems usually know it. If they do not deal with it early and own up to it they will eventually be forced by the Court/Legal System to confront their issue with more pain and cost to them and their families in the long run.

To me there is nothing sadder than watching someone throw away their life, and their potential as human beings away due to misuse of drugs or alcohol.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 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. 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

Reviews of Larry Newman:

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

Understanding New York DWI Mandatory Alcohol Evaluations: Part I

In November 2006 the New York State legislature stated that ALL alcohol evaluations and screenings for DWI cases must be performed by OASAS certified evaluators. OASAS stands for Office of Alcohol and Substance Abuse Services. You can google OASAS to find a certified evaluator and/or treatment provider in your county. Their website is very informative, and fairly easy to navigate.

Legally you must have a "screening" for alcohol abuse/dependency within 30 days of your initial appearance if you had a BAC (blood alcohol concentration) of .12 or higher on your chemical breath test. A screening is merely a written test, it could even be a true/false test.

The next step up in the process so to speak is an "evaluation" for alcohol abuse/dependency within 30 days of the initial appearance if you had a BAC (blood alcohol concentration) of .15 or higher on your chemical breath test. Some evaluators take one long session to perform an evaluation, while some could take up to four sessions to make an evaluation. Cost of these sessions runs about $80 to $90 per session. So one long eval might cost around $175 or four might cost up to $400. An evaluation is an "interview" with a counselor, and could (may or may not depending upon the evaluator) include a urine screen (NOTE: urine tests check for specific drugs while urine screens are general) for drugs. It is also common for the counselor to obtain "collaterals" from you. A collateral is contact information about people who know you and have seen your drinking. These people may or may not be contacted to confirm what you tell the evaluator. The theory is that people with drug/alcohol problems lie, and therefore these collateral sources would be a potential barometer of your truthfulness and/or sobriety.

The next step for the evaluator is to determine whether you are an alcohol/drug abuser and have an abuse diagnosis or you are chemical (alcohol/drug) dependent. This is a critical determination, and should never be taken lightly by anyone.

My problem (I have a great many issues with the process) with these evaluations is that they can be highly subjective. The evaluators opinions carry a lot of weight for the Court as well as the prosecutor and under the circumstances of an interview or interviews they (the evaluators) may not get the full ie. complete picture. I had one client who went to an evaluation and the evaluator decided on a year's worth of treatment for dependency because the client stated he drank more than 5 drinks at one time. BTW 5 drinks for a man or 4 drinks for a woman at one time is classified as a binge drinker. BINGE is BAD in the world of evals. Imagine if you will a year's worth of 2 to 3 times a week standing up and saying, "hello, my name is Bob and I'm an alcoholic," and you may begin to see the grim picture if you are truly a person without a problem. These sessions would be costly in terms of time and money but more than that unjust in my opinion.

In my next blog I'll discuss the differences between how counselors make an abuse diagnosis versus a dependency diagnosis in more detail.

The One Opinion DWI State

Living in the land of: "Ignorance is Bliss" and "What you don't know won't hurt ya." The problem with attending Forensic Science DUI conferences is that you can no longer be a mushroom in the dark. Choosing to remain silent is difficult. So enough beating around the bush...

New York State just takes one breath sample. It's called "replicate" testing. They (the police) Test one sample twice versus the industry accepted norm of "duplicate" testing whereby they take two separate samples. Many other states do duplicate sampling. Because CSI fans, having two separate and distinct samples (within .02 of each other) assures greater accuracy of the procedures.

Imagine for a moment going to the doctor, and getting a high blood pressure reading on his machine. The doctor makes a hypertensive diagnosis based solely upon the one test, and prescribes medication. How about one better, have a blood test for HIV and you are told it is positive. Sorry no second opinions for you, you just have to live with those results.

Well having a breath machine spit out a number is scary stuff. The machine is an unsworn trial witness. Scarier still is the fact that for the test results to even approach any accuracy the machine operator needs to follow the proper procedures. Couple to that fact that machine breath testing of alcohol ASSUMES: an average body temperature, an average metabolism, an average lung capacity, your body is done absorbing alcohol, and you are healthy we have all the ingredients of an inaccurate test.

An inaccurate test is bad enough but when you only get one opinion (from one test sample) it makes that test critical to your guilt or innocence of DWI "per se" (based on the test). Errors in breath testing generally come from three different areas:

1. Machine errors

2. Operator errors

3. Subject errors

Looking at each of these areas in detail is crucial to mounting an effective DWI defense. Recently, I had a case where the chemicals used in testing were expired prior to doing the test. Technically, the chemicals have a certified expiration date from the NYS Police crime lab but more importantly is that that is a "shelf" life (date) for the chemicals. Once the chemicals are put into use for testing on the machine they can only be used for 60 days ("use" life) from the date of first use. So checking chemical logs (the police must keep weekly logs of the chemicals) against the certified expiration dates is important.

The Price of Success

Everything has a cost. Nothing is ever truly free. I tell people beware of freebies. Beware of the free lunch or the easy anything. Things of "value" have a price. Of course, the word value is the kicker.

So what is it that we value? First and foremost, I think that those that are building a future for themselves value their name and reputation. I guess if you are not planning to venture forward to bigger and better things having a lifetime criminal conviction on your permanent record would not matter. For those that are dreaming of jobs, positions, professions, prospects, and opportunities their life file of pluses and minuses can impact their future choices and their options.

People ask me many of the same questions again and again. The BIG Question in DWI defense: What is the difference between a DWI and DWAI? The main difference, the crucial difference is that one makes you a criminal (a person with a criminal conviction) on their record and one does not. The money and other associated pains, as in the fines, state surcharges, DMV fees, classes, etc. are not that different between the DWs (the driving while...).

If you want to fight the charges. To contest the evidence. To challenge the government. All of that comes with a price. It takes time, money, and effort. In some cases, we need expert witnesses. We need experts to testify about your asthma, your reflux, your diabetes, your medications for allergies, and any other reason why your breath test result (your BAC) was what it was, and not because you were intoxicated. Defenses like these do not come cheap.

Wars are never easy or inexpensive, and trials are wars. The government has the power to charge and prosecute, and the resources to accomplish this. They often exercise this power without discretion. Those that are naive believe that their lifetime of good work, achievement, standing, and clean living will somehow negate the government's intent on pursuing prosecution of crimes.

The prosecutors do not care about any of that. Their focus is always on: can they make out their case against you? Can they make the charges stick? In theory, they are supposed to seek justice but in truth they seek convictions.

New York State DWIs are not commonly (rarely) reduced to non-criminal dispositions. Those with BACs of 0.12 or higher should brace for a bumpy ride. In 2010, refusal (without a breath test) cases are being prosecuted just as seriously.

I am committed to the challenge of DWI defense. I have a wife and four kids and they all pay the price of my learning. Getting to and attending conferences thousands of miles away comes with a large price. Many long weekends spent in airports, planes, hotels, and conference centers takes it's toll on marriage and family life. I believe learning can never and should never end.

This year, I have already been to three Gerry Spence Trial Lawyer College conferences (one in January in California, another in Texas, and another in Washington state). I am about to jump on a plane in the morning for the annual Texas Criminal Defense Lawyers DWI seminar in New Orleans, Louisiana. It is called "Mastering Scientific Evidence" and we will be working with the breath machines. These are not sit in the room and take notes types of get togethers. We have mock DWI trials, we have hands on work with the Datamaster breathalyzers, and we practice skills building exercises. Defending DWI cases demands hard work, diligent focus, and persistent effort to be successful. I invest in success so that when my clients place their trust and faith in me as their attorney it stands on current education and experience.

The DWI Success Formula

As I am about to impart on my 3rd TLC this year, that's not TLC as in tender loving care but Trial Lawyer College regional seminar. This one is outside of Seattle, WA. Nothing like the Ithaca to New Jersey puddle jump hop, and then onto a real plane in Newark.

I like to learn and grow. It's been said, "that if you're green you're growing, and if you're ripe you rot. Success at anything leaves clues. I go to a restaurant in Lenox, PA called Bingham's. Just a small hole in the wall with deer heads on the wall. They make great pies, and the best turkey club this side of NYC. Their secret... fresh turkey, crisp quality bacon, and homemade bread. That is a success recipe for an incredible club.

There are successful formulas for just about anything. I believe the formula for greater success in DWI defense practice is to keep looking at the case from different perspectives. Reading through the police report over and over (one perspective), talking to my client (another perspective), visiting the scene (what can it tell me), re-enacting the night, and then seeing the case as a story made up of many smaller stories.

What doubts (honest and reasonable) can be raised concerning the government's evidence?

Are their conflicts in proof? Do the times of the events jive? Do things fit together or do they seem askew?

Sometimes justice and fairness are merely a feeling. Can I make the jurors sense the injustice in my case? Has the government (law enforcement) betrayed my client's trust by not following proper procedures? Have my client's constitutional rights been violated at any juncture?

Superficial reading of reports or quick black and white answers do not cut it in the world of criminal defense. I live and practice my art in degrees and subtle shades of gray. Success is in immersion. Being inside my case gives me greater "insight" to defend the charges being brought against my client.

The Standardized DWI Arrest

As winter gives way to spring in lovely Ithaca I am reminded of the beauty of nature. The birds are coming back, the croci (crocuses) are beginning to emerge, and I hope we have seen the last snow of winter. It has been a mild 2010. Our friends in the big cities (Philly and NYC) got hit this year. We had hardly anything (relatively).

The wonderful thing that nature reminds me every year is that people like flowers or snowflakes are unique. Your fingerprints, DNA, and combination of traits is unlike any other the world will ever see. Yet we (as a society) like to "standardize" everything. So what gets mass produced, marketed, and sold is the average. What is played again and again is the popular song. Popular doesn't mean good, it means what the common majority likes.

So Larry, what the hell does this have to do with DWI defense? Excellent question!

Law enforcement and the government builds their case evidence (proof) using:

1. Standardized administration procedures (in both the SFSTs and Breath test)

2. Standardized clues

3. Standardized testing criteria

A DWI arrest is usually based upon the officer giving you tests at roadside. His observations, and your performance will support his decision to arrest. He feels he has probable cause (based upon his proof) to make an arrest for driving while intoxicated.

The SFSTs (Standardized Field Sobriety Tests) are:

1. A series of three evaluations that have to be administered in a standardized manner by law enforcement. They are the walk and turn, one leg stand, and HGN (horizontal gaze nystagmus).

2. They have been created/chosen/selected and established by Government Authority (National Highway Traffic Safety Administration) as a RULE.

3. This RULE is for measuring the loss of mental and physical faculties (impaired function).

But are they accurate? In other words, do they conform exactly to truth or a standard?

And are they precise? Do they strictly conform to a set pattern, standard, or convention?

The first problem with any testing following a car stop is the officer has NO BASELINE.

He or she doesn't know YOUR normal. He doesn't know your physical and/or mental limitations. This is where standardized tests don't account for YOUR unique characteristics. YOUR past knee, back, shoulder, hip, neck problems. YOUR inner ear infection, cold, or flu.

A second problem with testing is that it is usually done outside. The conditions are usually not ideal. Weather is one issue. How many winter DWI cases with snow, ice, and freezing wind as our backdrop? How many motorists are without coats, jackets, or proper (appropriate) attire for being outside at 1:00AM in Ithaca, NY in December? What of the road conditions? What area were you forced to use to perform these balance, coordination, and mental exercises in the dark and in the middle of the night?

A third problem with testing is that the officer does not always follow procedures or he complies haphazardly. Standardized testing must be done in a set way and by following very specific protocols (rules/guidelines). Often officers will refuse to acknowledge they even "measured" anything. They prefer the word "estimated" or "scored" because those terms have less precise connotations. Did the officer leave "all" his emergency lights on when giving the tests? Did he communicate what he wanted from you clearly?

A fourth problem with testing is footwear. In the summer and spring the issue is usually flip flops. In the winter it is usually boots. High heels are always an issue when it comes to having to walk on imaginary lines, and balance/stand on one leg.

The breath test also has protocols and guidelines. It also needs to be "administered" properly. Sometimes law enforcement doesn't follow all the rules. Adherence to the rulebook is not always forefront in their minds. Not being being strict in compliance can lead to inaccurate results.

And inaccurate results can lead to wrongful DWI convictions.

DWI "Just the facts, ma'am"

I listen to stories about drinking and driving almost every day. I need to know all the details. In my day we had a TV show called Dragnet. The show had a cop named, Joe Friday who loved to say, "All we want are the facts ma'am." I too want the facts but more importantly I want my client's version of the night. I want to understand his perceptions and viewpoint.

This allows me to piece together the timelines, the potential witnesses, behavior patterns, and the amount of alcohol consumed. Ultimately I want to have a more clear picture of the prosecution's case against my client. I also have a software program that allows me to input my client's age, sex, height, weight, and drinking information to arrive at a pretty accurate BAC (Blood Alcohol Concentration) at the time of driving. Of course it is only a BAC range, and highly dependent upon my client giving me reliable information.

One of the first things that is difficult to estimate is the potency of the drinks. What type of beer or wine was drank? What was it's alcohol concentration? How big were the cocktails or the glasses they came in? Sometimes "one" drink has really 3 or 4 shots of 80 proof liquor. Beer can be 3-5 % and wine can go up to 14 %. Bacardi 151 is 75 % alcohol!

I recently had a client who swore he only had 3. Yeah, as in 3 Long Island Iced Teas! Do you know how much alcohol is in one LI Iced tea? In a good one, there is probably at least 4 shots.

So my client had 12 drinks before he began drinking Lite beer later in the evening. I would imagine smoking a few hits off his buddy's joint didn't help matters.

Remember that proof is twice the percent of alcohol.

5 ounces of wine 24 proof 24 ÷ 2 = 12 (% alcohol) 12 ÷ 100 = 0.12 0.12 x 5 oz = 0.6 ounces ethanol

12 ounces of beer 10 proof 10 ÷ 2 = 5 (% alcohol) 5 ÷ 100 = 0.05 0.05 x 12 oz = 0.6 ounces ethanol

1 1/2 shot 80 proof 80 ÷ 2 = 40 (% alcohol) 40 ÷ 100 = 0.4 0.4 x 1.5 oz = 0.6 ounces ethanol

One drink = .6 ounces of ethanol and usually one drink will cause someone (the average person) to go up .02 to .03 BAC per drink. If you had 4 drinks in a one hour period then your BAC would be .08 to .12. Alcohol dissipates (is expelled, eliminated) at around .015 to .02 per hour. In theory you can drink one drink per hour and clear the alcohol from your body at that rate (in other words remain alcohol free), after the alcohol clears.

So you are at a bar and have two drinks over two hours, you leave the bar, your BAC should be less than .04?

But we do not know the size of the drinks, or your metabolism, how much you weigh, or what you ate? All these factors affect your elimination rate.

Breath tests are not always reliable, accurate, or valid. Often they are not administered properly. People come in all different shapes and sizes. Getting a real BAC is a beginning, and getting the facts of the case from my client takes us one step closer to defeating a DWI.