New York DWI Defense Case Evaluation

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2011 is Officially Here

We in Ithaca have been fortunate in 2010, at least weather wise. We have gotten little snow compared to our neighbors in Syracuse. Inches versus their feet, and this past weekend was like summer with temps in the high 40s.

Well 2010 is now ober, and 2011 is finally here! I am excited this year to introduce myself, and great DWI defense information on short videos. It has been a long term goal of mine to create videos, and share on topics of interest. I love to speak, to break down the law, and to simplify all of it.

I believe that we have fear of those things we do not know about and/or cannot understand. Much like shining a bright light in a scary basement castes out the darkness, and our fears of rats and bugs. I remember living in Brooklyn, and we had rats and these huge water bugs in the basement. One day my dad decided to drop a bomb (to fumigate) on them, and we then had lots of dead rats and bugs. What a mess to clean that up. Anyway, with new lights, and no critters that basement became a great place to hang out.

I am hoping that those visiting my blog will also decide to "hang out" and learn. All the best for a great 2011.

Beating the Box or Breath Test Issues in a Nutshell

Winter in Ithaca, NY has finally arrived. Today it is 6 degrees with the windchill, yow! What's funny about that is by Ithaca Winter standards that is still fairly warm. I had a friend of mine visit one winter from Greece, and of course the day he came it was well below zero with the wind. He thought we were crazy to live here. He made it about 15 minutes outside before his breathing became labored and he started to look a bit pee kid.

Anyway, "THE" box, the definite article for sure. The box refers of course to the breathalyzer, aka the breath test, aka the Datamaster (the machine preference of City, Village, and Town Police), aka The Chemical test, aka The Alcotest (the machine preferred by NYS Troopers).

The Box provides a fast, easy, and cheap means to test the breath to indirectly compute a BAC (blood alcohol concentration). We can argue all day about: fast, cheap, easy, and indirect testing. The box is Not to be confused with the field breath test, called the alcosensor, done at roadside, and not admissible in NYS for a BAC result but merely to prove the consumption of alcohol.

There are Three main problem areas in Breath Testing:

1. problem with the person: medications, diseases of the lungs, ie. asthma, COPDs, allergies, diabetes, GERD (Gastro-Esophageal Reflux Disease), is it stomach contents, etc.

2. problem with the machine: out of calibration, simulator/reference solution has bad chemicals (out of date), broken parts, maintenance issues, temperature issues, etc.

3. problem with the operator: did not follow protocols, did not do proper observation prior to testing, used radio, phone, or beeper in room (Radio frequency Interference), did not check mouth for foreign substances, dentures, etc.

Is the BAC machine result reliable? Can the jury rely upon it?

Is the BAC machine result accurate? Is it a real number of the person's BAC?

Another potential issue:

TIMING: Is the machine BAC result (Post driving) a true measure of the BAC at the time of driving?

The idea of arguing that breath testing "in general" is bad, is inaccurate, and is unreliable is usually not the best approach. Juries want to have a "specific" reason or reasons why something like a breath test result in a specific case/situation is not to be trusted.

Beating the BOX then becomes a reality. Because in the end, the jurors should only follow and apply ONE presumption at trial, the POI (presumption of innocence). The government must prove their case, including the BAC result to the BRD standard (Beyond a Reasonable Doubt).

Mastering DWI Defense in Ithaca, New York

Well as the year winds down it is a perfect time for reflection. Why do I do what I do? DWI defense: It is challenging, and my goal is mastery.

You see I have always wanted to do things very well. As a kid I loved magic, photography, and bodybuilding/powerlifting. I spent countless hours engaged in those activities. Time was never a factor. It seemed as if I got so involved that the world did not exist. My sister called me (more like labeled me) obsessive and intense. So why was I this way? What drove me?

One of my mentors (btw a good thing to have) Dr. John Demartini, said that the VOID drives the VALUE.

I have always felt less than. I have felt the need to prove myself to the world. To prove my value, my worth, and my ability. I was short, pimpled (nice way to say Acne), curly haired (not a popular thing in my day), husky (another word for fat), clumsy (uncoordinated), nerdy, and a day dreamer. Nobody thought I would amount to much. Childhood was hard for me, picked on, ridiculed, and generally tormented for being different. So I focused on being really good at whatever I chose to pursue. I wanted to show them (them being everyone/everywhere).

I built my own little photo lab in my basement, with used cameras, developing tanks, and an old enlarger. I put on magic shows, I even performed for Mayor Beame and the democratic party back in the day. I invented a magic trick that was published by Tannen's (one of the oldest magic shops in NYC) at the age of 14. Lastly, I competed in powerlifting, eventually coming in 3rd place in New York State in 1980.

I am still on my quest for mastery. I am committed to traveling whatever distance, paying whatever price, and doing what it takes in time, energy, and money to be the best I can . . . This time, at DWI defense mastery. I follow the same SUCCESS formula every time:

1. find and go to seminars, people, and events that I can learn from.

2. find and buy books, tapes, and dvds to learn from.

3. organize and spend part of everyday (or almost every day) reading/listening/writing

4. commit to mastering each part and area of the subject

5. pay the price for success, in time, money, and energy

6. accept and learn from my mistakes and rejections

7. work hard at preparing for all of my challenges.

This year I attended and participated in 10 seminars:

January 2010: Gerry Spence Trial Lawyers College: Opening Statement, Asilomar, California

February 2010: Gerry Spence Trial Lawyers College: Direct Examination, Round Top, Texas

March 2010: Gerry Spence Trial Lawyers College: Closing Argument, Leavenworth, Washington

April 2010: Texas Criminal Defense Lawyers Forensic Science for DWI New Orleans, LA

June 2010: Gerry Spence Trial Lawyers College: Psychodrama, Dubois, WY

June 2010: New York Criminal Defense Lawyers NY DWI Update, Wayne, New York

October 2010: New York State Bar Assoc. Expert Witness Seminar, Syracuse, New York

October 2010: New York Criminal Defense Lawyers DWI Update, Syracuse, New York

October 2010: The Breakthrough Experience, Self Mastery Program, Boston, Mass.

November 2010: Texas Criminal Defense Lawyers, Advanced DWI Seminar, San Antonio, Texas

7 states, 10 seminars, and one incredible year. I won't even begin to tell you the number of books, dvds, and cds I have purchased on criminal law, and DWI defense. Suffice it to say I have quite a library (my resources).

I believe "You" are always your greatest investment. A great many companies, organizations, and businesses spend millions on advertising/marketing for clients/customers.

If only they spent that time, energy, and money on their product or service. People sometimes ask me How I "Get" Clients. So many people are only interested (primarily interested to be fair) in the bottom line.

In my opinion these companies do not:

Panera's Bread, Starbucks, Dunkin Donuts, Apple, Wegman's, . . . Great bread, coffee, computers, and service . . . looking towards the future, innovating, transforming . . .

They "Focus" on being better, rendering a better product, a better service, not on a gimmick, or selling a fantasy to people.

As to me . . . Well, I not interested in retiring, why would I? I love what I do (contributing and serving as an attorney), I care about doing a great job (the best with the facts/case in front of me), I love learning, growing, and transforming my self and my business with new ideas,

so as 2010 comes to a close I look forward to re-grouping to do more (quality not cases) in 2011.

The DWI Defense Challenge, It's not about the truth

I just came back from two back to back Syracuse Law seminars. On Friday, Oct. 23, I went to a New York State Bar seminar on Expert Witness testimony, and on Saturday, Oct. 24, a New York State Association of Criminal Defense Lawyers event at Syracuse Law school. That seminar had criminal defense lawyers from around the state speaking on a multitude of topics, one of which is my favorite, DWI defense.

I learn something new at each, and every seminar I attend. In fact at this seminar even the speakers hung around to learn from the other speakers. The best lawyers know it is never over. I will be the first to tell you that law is a practice. You work and grow from each case. No two cases are exactly the same. One of the speakers at S.U. is a favorite of mine, Ray Kelly. Ray is one of the most passionate and inspired advocates I have ever met. He reminds me and every other defense lawyer why what we do and how we do what we do is so important.

We represent fellow human beings. Ray takes that Oath to uphold the rights of others very seriously as do I. We have a duty of constant vigilance to not allow illegally sufficient evidence or evidence that has been obtained in a unconstitutional matter be used against out client.

The following synopsis paraphrased and shortened comes from Justice White's opinion in Wade, 388 U.S. at 256. We (criminal defense lawyers) have a duty to protect and defend. I have no obligation to ascertain or to present the truth. I need present nothing, even if I know what the truth is. If I can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be my normal course of action. My interest in not convicting the innocent allows me to put the State to it's proof, put them in their worst light regardless of what I think or know to be the truth. In fact, my duty has little relation to the search for truth.

I must continue my commitment to POlice the POlice, challenge the prosecution, and to make sure that no person accused of a crime stands alone against the government.

Ithaca by Choice not by Chance

Did I choose Ithaca or did Ithaca choose me? I ponder that question often. Do we ever feel called to a place? I feel called to the two professions I have been privileged to practice. Not like a voices in my head ala Berkowitz kinda way but more like an intuitive feeling. You know that you know that something is right.

After years of journaling, I wanted a more authentic life. To me, that meant being in a more natural area (less asphalt more trees). I wanted a radical change of my environment. I was ready to escape suburbia, and big city practices. I was tired of the parking, the traffic, the disconnect, the running from place to place, the rat wheel, and the mindlessness.

Now not everyone gets Ithaca. It is not heaven, merely a nice city nestled here in the Fingerlakes. I can appreciate it in contrast to so many other places I have lived, and so many more places I have visited. Ithaca is merely relative. My closest friends advised a psychological evaluation when I told them I was moving here. Why would you leave the paradise of South Florida? Why would you leave all of this? The swimming pools, the hot weather, the resources, the simple flat roads, the brand new homes, the shopping, and the abundance of money. Why indeed?

Well it now almost four years later... and I can say that Ithaca can grow people the way that it grows flowers and plants, this is a fertile place both figuratively and literally. I could have only imagined what community really means and the communities that surround Ithaca encompass more than just land, they embody caring, I have never in my life met more down to earth, honest to goodness, authentic people, for better or worse who embrace who they are... warts and all!