BWI Lies: Does New York Boating While Intoxicated Affect Your Driver's License?

from flbm.org
Look at all these lakes, we are surrounded with natural beauty.

I get calls almost every day about something. Something someone heard, or someone said, or someone read, or someone saw online. So much misinformation, and lies, and deceit offline and online. Way too easy to hustle up some fear. Get people in a fury over an impending loss.

The Doom and Gloom Game

We call it the "doom and gloom" game. Attorneys, doctors, insurance agents, and sometimes even financial advisors preaching the end of times or it's equivalent: jail or prison, or god forbid, the loss of your New York State driving privileges.

Some attorneys put it on their website, this may affect your driving privileges, kinda sneaky if you ask me. Some attorneys just say you will lose your operating privileges but fail to mention OPERATING WHAT?

Lies, Lies, and Damned Lies

Well my call yesterday revolved around a New York BWI. With so many beautiful lakes it is no wonder people love bringing their watercraft to the Finger Lakes region of NYS. In fact that's one of the reasons I live here, I love the lakes.

The Big Question: Is it true they asked, can a BWI (boating while intoxicated) affect your driver's license privileges? They went on... Well because my attorney on my last DWI case told me that the DMV told him (sounds like a lot of hearsay) that it will?

I was challenged. I have written articles and blog posts about BWI. BTW none of which talk about loss of driving privileges. Yes, you will lose YOUR privileges to operate YOUR VESSEL.

http://ithacadwi.blogspot.com/2009/07/summer-is-officially-here-bwi-boating.html

Your boating license but as to law as we know it today:

New York State Navigation Law Article 4 Part 1 Section 49- A 

3.  Privilege  to  operate  a vessel; suspensions. (a) The court shall
  suspend a person's privilege to operate  a  vessel  and  may  suspend  a
  vessel registration for:
    (1)  a  period  of  at  least six but less than twelve months where an
  operator is convicted of a violation of paragraph (a) of subdivision two
  of this section.  In  determining  the  length  of  such  suspension  or
  suspensions,  the  court  may take into consideration the seriousness of
  the  offense  and  may  impose  a  period  of  suspension  whereby  such
  suspension  may  be  in  effect  during  a  portion  of  the  current or
  subsequent boating season;

Operating a vessel while under the influence of drugs and/or alcohol leads to a suspension of a person's privilege to operate a VESSEL.

The full section explains all of New York State BWI law, rather dry if you ask me. But anyway, there is recent legislation in this area but it involves prior or subsequent DWIs or SWIs or BWIs. There is real legislation on this exact issue BUT it is still pending. If passed it would cause driving privileges to be lost, it's NYS Senate Bill S771-2013. It has not passed yet but I feel in the future it will.

http://open.nysenate.gov/legislation/bill/S771-2013

A nasty piece of legislation for sure:

SUMMARY OF PROVISIONS: Section 1 amends section 49-a of the Navigation Law to add provisions prohibiting aggravated BWI (.18 blood alcohol content or operating intoxicated with a child passenger) as well as operating under the combined influence of drugs and alcohol. Creates motor vehicle driver license suspensions for BWI convictions as well boating privilege suspensions for driving while intoxicated (DWI) convictions. Makes clear that a prior conviction for operating any other vehicle under the influence shall be considered a prior BWI for purposes of the enhanced penalty provisions for multiple BWIs.

Tiffany's Law is Real BWI Linking Law

ALL WIs (while intoxicated) offenses or WIs (impaired by drugs) offenses in NYS can now be used against you at SENTENCING on your BWI, or SWI, or DWI. They are all linked together.

In other words just because you operated a snowmobile or a boat or a car while impaired and/or intoxicated by drugs and/or alcohol in the past they will ALL be taken into consideration by the Court, the judge, and the prosecutor when determining sentencing (punishment/probation/jail/prison/consequences) on your new BWI. No more limits on first time BWI.

Where Tiffany's law comes from. A young girl named Tiffany Heitkamp was killed by a drunk boater. Because it was his first BWI (not a first WI) the sentencing on the case and the charges were limited.
This loophole has now been removed.

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

Police DWI vs DWAI Drugs Investigations: Impaired by Drugs, Alcohol, or Combo

I had a roommate like this but with my cookies
from classicruby.com

New York Police use different enforcement techniques or methods depending upon the situation. When out patrolling the roads and by ways their eyes are on alert status for the abnormal or the out of place/position car. It helps if it is in between the hours of 10pm and 4am, because at that time of night many cars out and about at that hour have drivers and/or passengers under the influence of something. As an aside, I know from my clients food inclinations at that hour that the Ithaca Taco Bell on Route 13 closes at 2am.

First Questions: Narrowing the Field to "Impaired" Driving

Law enforcement must first discern if the negligent driving or bad driving or distracted driving is really "impaired" driving. That is, is this person under the influence of drugs or drugs and alcohol or just alcohol AND who is also unfortunately driving poorly because of that condition.

Tired, Lost, and Sick Can MIMIC

Tired driving or medically sick driving or I'm lost in Ithaca driving can also mimic impaired driving so the first question is always what do we really have?

If police smell alcohol, they assume you have been drinking.

The first line of questions: Have you been drinking? Have you had anything to drink tonight? What have you been drinking?

The second line of questions: Where have you been? Where are you coming from? Where are you going to?

THE LAW ENFORCEMENT DWI INVESTIGATION

If ALCOHOL has been consumed and verified by the questions then they move to a DWI (intoxication) investigation. Remember in New York State an "Intoxication" crime like common law DWI is a purely ALCOHOL offense. 

Police testing for alcohol as the cause of impaired driving will follow a specific protocol. This will first involve the SFSTS (standardized field sobriety tests). There are three main tests: HGN (horizontal gaze nystagmus) eye test, walk and turn test, and one leg stand test.

TIME: If instructed, directed, and scored properly these take around 10 to 15 minutes. Sometimes officers do them in less than 5 minutes.
PLACE: They are done at roadside. Outside and subject to conditions (road and weather).
WHEN GIVEN: They are done/given (performed) pre-arrest. 
WHO: They are usually given by one officer.
WHEN SCORED/NOTATED: They are usually scored, recorded, and written about by the officer post- test and of course post-arrest.
ALCOHOL TESTS: These tests were primarily designed and created for alcohol testing. Scoring is based upon a 0.10 BAC (blood alcohol concentration).

THE LAW ENFORCEMENT DWAI DRUGS INVESTIGATION

If the police believe you have taken DRUGS then the investigation will change to a DWAI (impaired by drugs) investigation. Did you admit to drugs? Did you make any drug based statements? Did they find drugs on you and/or in the car? Did you submit to a blood, or urine test?

THE "WHAT IF" GAME

WHAT If they have NO statements, WHAT if they have (found) NO drugs, and WHAT if they have NO tests then

HOW CAN THE POLICE STILL PROVE YOU ARE DWAI DRUGS?

By using a DRE.

NOTE: New York State Courts allow the police to prove drugs by using a DRE (Drug Recognition Evaluation). A DRE is an examination and testing by a certified DRE(Drug Recognition Evaluator).

Police testing for DRUGS as the cause of impaired driving will follow a specific protocol. This will first involve twelve steps or stages. In dramatic contrast to the SFSTS, the DRE is very different.

TIME: If instructed, directed, and scored properly these take around 60 minutes.
PLACE: They are done back at the station in a controlled environment.
WHEN GIVEN: They are done/given (performed) post-arrest.
WHO: They are usually given by more than one officer. One will be the scribe and take notes.
WHEN SCORED/NOTATED: They are usually scored, recorded, and written about by the scribe contemporaneously, at the exact time of the exam.
TESTS: These tests were primarily designed and created for drug category testing. Scoring is based upon a seven categories of drugs.

Sometimes the police will find both alcohol and drugs. It is in their ultimate discretion whether they pursue both alcohol and drug charges. Sometimes a blood test will be requested and ordered.

New York State Police Lab protocol only checks for drugs if they rule out alcohol as the source of your impairment. In other words, they will stop looking for anything besides a BAC (blood alcohol concentration) if they have over the legal limit.

BUT some District Attorneys will send the blood back and demand a search for drugs in the blood. Again this is in the DA's discretion. Some offices like to charge as many crimes as possible. With drugs and alcohol over .08 BAC, YOU can be charged with at least FOUR DWs:

DWI common law VTL 1192 (3): the opinion of the police
DWI per se VTL 1192 (2) .08 or more: the opinion of the breath test for alcohol
DWAI drugs VTL 1192 (4): commonly a marijuana DWAI
DWAI combo (drugs plus alcohol) VTL 1192 (4) (a): alcohol plus THC or other drugs

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

Military Intelligence, Jumbo Shrimp, and New York "Initial or First" DWI Appearances

How can you have more than one
"initial or first" DWI appearances?
Riddle me this Batman?
from brie3po.deviantart.com

How can it be an initial or first Court appearance if I already had one? Confusion over why we need more than one initial appearance with DWI cases aka "the arraignment" is a constant reminder of government inefficiency in action. Your being "arraigned" (noticed) on the charges, and being informed of your rights may happen more than once.

Well, you can have an initial or first appearance with counsel or without counsel. So your first appearance with counsel is technically NOT always your true first appearance in the Court but who's counting anyway?

I have seen this play out at it's worst with DWI refusal cases. If you refused to take a police chemical test of your breath, blood, or urine either expressly or via your implied behavior then at your first court appearance two things will happen:

1. The judge suspends your driver's license or privileges (for out-of-state driver's)
2. Sets your date for a DMV (administrative) refusal hearing. This must occur within 15 days of YOUR initial appearance (with or without counsel).

With a Breath or Blood DWI chemical case your license suspension will generally NOT begin until you are arraigned with counsel present. So even if you have an initial or first appearance without counsel (an attorney) you can usually rest assured that your license or driving privileges are still intact until your NEXT initial or first appearance WITH counsel.

This also gives you a golden opportunity to work with your lawyer to secure or insure or assure your receiving (by request/motion) a HARDSHIP PRIVILEGE Driver's License. Remember that Hardship privileges require the requisite proof to be granted by a judge. Some want more information and some less but you will need to give it to get it.

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

What's Normal Driving? People Make Driving Mistakes But is it Due to Drugs or Alcohol?

People Make Mistakes, btw I've done this one
from mistupid.com

I love to check out USA Today. Every time I'm at a Hilton property (quite often) they have a copy for me. Kinda like news light with a touch of National Inquirer thrown in for good measure. Or for those New Yorkers, kinda like the New York Post married the Times and they had a kid.

Little tidbits, surveys, and as they quip "USA snapshots," they own that btw So a recent little piece caught my eye. It was on a survey in which people were asked their most embarrassing car goof moments:

Out of 2,000 people surveyed (sounds like Family Feud now?)

50% forgot where they parked their car (I've had DWIs with these)
43% ran over a curb in a parking lot (other DWIs)
34% drove the wrong way down a one way street (countless DWIs and DWAIs)

So was everyone in their survey drunk, impaired by a drug, intoxicated by alcohol: NO

In fact these were all SOBER goofs. In any DWI or DWAI prosecution there may be some or a lot of drug based driving behavior or maybe it's just some or a lot of stupid driving?

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

New Diagnosis Alcohol Use Disorder Goes Mainstream in New York

New York City Port Authority Sign
Taken by moi on my most recent field trip

Two years ago I discussed the re-vamping of the DSM (diagnostic and statistical manual of mental disorders) aka the manual aka the bible of mental disorders to it's newest, greatest, and latest edition V.

While Number 5 is still gaining ground it is still not quite mainstream IMHO. Most (the vast majority and everyone I know) of the therapists, evaluators, OASAS assessors, doctors, and clinical social workers are still stuck on the older DSM edition IV, and it's commensurate antiquated verbiage.

see my blog post on the new DSM-V here:

http://ithacadwi.blogspot.com/2012/12/ithaca-cortland-lawyer-new-dsm-5-meets.html

Not the Age of Aquarius but One of ADDICTION

We are, face it still living in the age of "addiction." The terms abuse and dependency are still on every evaluator and therapist lips, so I was surprised two weeks ago at what I saw posted up at the New York Port Authority Terminal. A large poster of a child, and the words "7.5 million children in the U.S. live with a parent with an alcohol use disorder"

It finally happened, not dependency, not addiction but the first use publicly of the catch-all term:

"USE DISORDER"

The fear has begun, and I am here to say, no I am here to state, that the use of these new terms is scary. Because the new terms are vast, vague, and so all encompassing. There are in fact:

alcohol use disorder
substance use disorder
marijuana use disorder
etc. use disorder

and the treatment called for is ,,,

you name it depending on how the evaluator feels about the severity of the use disorder and it's context.
Is this

Diagnoses that are non-specific

Vague definitions give clinicians great leeway. BUT they can lead to everything from non invasive to fully invasive methods and treatment. These can give the therapists and evaluators IMO too much control based merely on an opinion and too much subjectivity to make a diagnosis let alone formulate a proper and appropriate treatment protocol.

Are we moving forward or backwards? Hard to say at this time. Harder still will be getting judges, prosecutors, and probation officers to understand all these new terms and definitions.

The New DSM V is Not Bad "per se"

I used the book (the old DSMs) in college and in my practice for many years. Even physical diagnoses as a Chiropractic Physician sometimes had a mental overlay. Treatment of a whole person required understanding mind and body. Untreated mental issues prolonged physical ones. Anxiety and stress, and manic-depressive (bi-polar) conditions are all too common within our population. Proper and appropriate diagnostic work ups and treatment need to be part and parcel of the management of any disease including those involving drugs and/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

Ithaca City Court Judge Sets New Precedent on DWI Cases

Ithaca City Court
The Honorable Scott Miller

Clarity is Primary

The Ithaca City Court is evolving in a good way. Steps and procedures are being taken to ensure that sentencing of DWI cases is clear, concise, and unambiguous. In the judge's new sentencing of people charged with DWI the judge (The Honorable Scott Miller) is setting up new protocols to deal with DWI cases.

Why Here and Now?

After a DWI case returned to court due to alleged violation of their CD (conditional discharge) the thorough Judge went back through the prior recorded sentencing (everything is recorded these days) and noted that the defendant was never informed in a way that was understood by him that he MUST install an ignition interlock device on his car within 10 days OR ELSE,,, face consequences! Driving a vehicle without an installed IID, once one has been ordered by the court following a DWI sentencing is a crime (class A misdemeanor) in and of itself. In addition, it is also a violation of their CD.

Ultimately, a violator would be subject to re-sentencing to up to a year in the Tompkins county jail and/or three years of probation supervision and monitoring.

See my prior blog post to further understand what a CD really means here:
"What do New York Parole, Probation, and Conditional Discharges Have in Common?"

http://ithacadwi.blogspot.com/2012/08/what-do-new-york-probation-parole-and.html

Consistency is the New Watch Word in New York DWI Sentencing

"Although the court system has experimented with different approaches to DWI
cases, we have never had a uniform, statewide plan. Today, I am announcing a compre- hensive plan to address this problem."

                                            Chief Judge of New York State Jonathan Lippman

I think that this has been a long time coming, and keeping with the high court's (Judge Lippman's) recent stance on CONSISTENCY in sentencing in all DWI cases statewide. Reading through the 2014 Judiciary report the word consistency is mentioned again and again.

Our own Judge Miller reiterated the high court's goals, and his compliance with it's philosophy in two major ways:

1. The judges will ensure that all defendants are screened (and assessed/evaluated) to identify alcohol or substance abuse dependency. 

2. As experts have recognized, a key component of achieving deterrence in DWI cases is certain, con- sistent and coordinated sentencing. Consolidating these cases into one court part, with a dedicated judge, will lead to consistency in sentencing. It will also enable the judge to develop expertise in this complicated and technical area of law, as well as an under- standing of the effectiveness of the statutory tools at his or her disposal, such as license suspensions, alcohol monitoring systems, and ignition interlock devices.

                                             From Judge Lippman's 2014 State of Judiciary Address 

The New Ithaca City Court DWI Conditional Discharge

New "Conditional Discharges" on DWI cases in Ithaca City Court will include a verbal and written warning that an ignition interlock device MUST be placed upon any vehicle that they own and/or operate within 10 days of sentencing. A violation of the terms of the DWI CD will now result in harsh consequences.

Ignorantia juris non excusat (Ignorance of the law is no excuse)

Leandra's Law = The mandatory IID (ignition interlock device) condition will be acknowledged and enforced from this moment forward. Noone will be able to say (neither attorney or defendant) that they DID NOT KNOW. 

Now if Judge Miller could only get the bridge fixed before next winter. Us older (read mature) folks don't like slipping and sliding on the slick Ithaca sidewalks.

The Bridge in Better Days

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

Cornell and Ithaca Graduation Ruined by DWI Arrest

Oh the joys of graduation, I just came back from kid #2!
from landerscountry.com

This year I saw my 2nd in line graduate college. Kid three is in his third year at BU, so I only have a full boat (4 years) on kid #4. Why do these events have to be "all day" affairs? Why do they have to encompass an entire weekend of eating out and partying? Sometimes it's like a wedding with a bridezilla,

Bridezilla can Also be GraduateZilla
This is "MY" Day!
from inspiration.kenmore.com

A graduatezilla can be more terrifying than Godzilla. I'm the center of attention, no, more like the center of the universe. It's all about me, me, me!

Ok, I'm getting off track here but anyway,,,

JOY is Balanced by PAIN

Every year I witness the joys of Cornell and Ithaca College graduations, and every year the pain of another painful and costly DWI arrest. Often the elation, and the almost manic mentality of winning and succeeding draws is a balancer of sorts. The DWI comes unbidden, and puts a real dampener on the "moving" on plans.

Understanding the Graduation DWI

It is natural to want to celebrate victories. In graduation season we have a reason to "go overboard" with family and friends. You deserve this! You've earned this! Party! The extra drinks, the smoke, the shots, etc. all come rapidly and usually with little to no food. Operating on little sleep, add drugs, alcohol, and the stress of family = DWI.

Saturation (many policia) Patrols = Shooting Fish in a Barrel

Ithaca is small. Ithaca is isolated. Ithaca is really only 10 square miles. In this little burb nestled in the Finger Lakes the police have an easy time pulling over the erratic driver.

The Most Common Standouts of Improper Driving

1. Failure to put on lights after dark
2. Failure to use turn signals
3. Speeding
4. The "too wide" turn

Now you can be sober, and do all of the above. The problem is having alcohol and drugs in your system and doing ANY of the above. Once pulled over, it moves rapidly to a Common Law DWI arrest and potentially to a "per se" (blood alcohol concentration) DWI based on breath or blood alcohol.

The Key Lies in Prevention by Preparation

DDs (designated drivers) are the key to successful navigation of the graduation festivities.
Taxi please or Uncle Lou or Bob (someone has to be a reformed alcoholic).
Recognize all will likely party and party hard.

Don't play off the short drive. Don't play off the small intake. Any driving distance with any amount of alcohol will likely be amplified at time of the event.

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

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

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers