Ithaca Lawyer What are New York Graduated Sanctions?

from crimemuseum.com

New York probation departments and the Courts love to throw around fancy terms for pretty basic things. They use plenty of acronyms, like ATI (alternatives to incarceration) or PPI (pre-plea investigation) and everyone is expected to know what they are talking about. See you at the next PTC (pre-trial conference).

Always Ask if You Don't Know or Understand

Number rule when hiring an attorney, talking with an attorney, or dealing with the Court system is:
ask if you don't know, do not assume anything about anything, ask until you are clear about the subject and the answer. I ask about the things I don't know and there is plenty I don't know. I learn new stuff every day. It is smart to ask and dumb to pretend to know.

Fancy Words versus Plain English

Sometimes things sound better when we use colorful language.

Being Incarcerated = Going to jail or prison, being locked up!
Being placed on or in Probation = Being closely monitored and supervised for years!
Getting a CD = Having to meet certain conditions (do stuff) and stay out of trouble (no new arrests)

Striving for the Appropriate

So for today, the purpose of the Court, the Probation department, District Attorney, and the Judges is to gather all the information and facts about a person and a situation and to move towards an APPROPRIATE sentence of punishment.

What is appropriate sentence for the first time DWI offender with no accident and no injuries is NOT appropriate for the second offender or the one with an accident. Leniency for those who deserve it is at the base of this idea of fairness.

This idea or philosophy is called graduated sanctions. A gradual ratcheting up of harsher penalties. They are designed to hopefully teach, assist, train, and to rehabilitate a person from their criminal activity or behavior.

Graduated Sanctions = Gradually Increasing Punishments

Does the system fail some people? yes, but I have also seen people get the help they surely needed, sometimes whether they wanted it or not. Sometimes salvation is painful. It is generally not a fun process to say the least.

The Job of YOUR Attorney

Now the job of your attorney is to bring balance to this process via input. They must actively work to ensure that everyone gets what they need to recommend and to provide an appropriate sentence.

Your Job/employment history, education, family background, drug/alcohol evaluation, treatment, etc. can all help you or hurt you. They must be a filter and a focuser of information.

The Big HOW and WHAT

They can contact probation, they can give information about you, they can guide you to do the right things, and they can advocate to the Court and to the Prosecutor. Everything can potentially count for or against you, HOW it is presented is just as important as WHAT is presented.

Larry Newman, D.C., J.D.

504 North Aurora Street
Ithaca, NY 14850

newman.lawrence@gmail.com

http://www.ithacadwi.com

Ithaca Lawyer's First Movie Review: Flight with Denzel

Attention: SPOILER ALERT

I am not a movie reviewer but I am a defense and personal injury attorney who focuses on DWI cases. So when the new movie Flight with Denzel Washington began their previews I got excited.

Excited for a number of reasons, I love Denzel, as an actor, I think he is amazing, I love producer Robert Zemeckis (of Forrest Gump fame), and I love this movie's storyline, DWI pilot saves/crashes a plane. However, you choose to spin the story, it is compelling, especially with Denzel at the wheel so to speak.

Mixed Reviews

My wife and I went to see the movie in Ithaca after reading mostly good reviews on Rotten Tomatoes, and a bunch of "iffy" ones. I am always leery of the reviews that are too positive or too negative, afterall a movie of this nature (moral content) usually compels people (even reviewers) to take sides or positions. Some reviewers thought the movie was too AA (alcoholics anonymous) preachy. I went in looking for this perspective but didn't see it that way. As anyone knows from reading my stuff I am Not pro-drinking/drugging/driving/operating planes, trains, or automobiles, that would be crazy. I am not crazy that way but I do believe that everyone deserves the full extent of the law, it's protections and it's consequences.

Different Strokes for Different Folks

I also believe that those who need help should get it, whatever works for them, whether this is AA based or something else. I have seen different programs work for different people, just like any program/idea/philosophy/methodology it must be worked, it must be believed, and it must be integrated for a long term change.

That said, I really liked this movie but I had issues with some of the legal/administrative/story proceedings and dialogue relating to the operation of a plane while under the influence, and how Denzel's character forced me to suspend disbelief on a few occasions.

SPOILERS/SPOILERS/SPOILERS

Denzel's blood alcohol concentration post-crash came back as a 0.24 BAC. 

His attorney supposedly "squashed it", as in got it thrown out. We only know the issues he pointed out on camera: the blood preservative was wrong, the lab machine was not calibrated (verified/validated) properly/timely, and the transfer of custody procedures were violated by the hospital personnel. Whether he did this by a Court motion or by a motion and Court hearing is never revealed. Poetic license, maybe?

Multiple Samples?

There would have been at least two samples drawn. One for the hospital for triage and medical treatment of Denzel immediately, and then a forensic sample. Whether either one of those samples could have presented at an administrative or civil hearing is another issue. Proof at these hearing has a lower standard than the criminal one of beyond a reasonable doubt.

What is the True BAC limits for pilots, CDL holders, and train drivers?

The true legal limit for a pilot (commercial airline, bus, train) is .04 BAC (blood alcohol concentration).

        In 1985 and 1986, the Federal Aviation Administration implemented the current version of section 91.17 of the Federal Aviation Regulations, which applies to all aircraft pilots (general and commercial aviation alike) and states in part that

        NO person may act or attempt to act as a crewmember of a civil aircraft— (1) Within 8 hours after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; (3) While using any drug that affects the person's faculties in any way contrary to safety; or (4) While having 0.04 percent by weight [8.7 mmol per liter] or more alcohol in the blood.

The movie indicated that a .08 BAC is the criminal limit. It is BUT not when you are driving/operating/flying as a "common carrier" and this standard is even less if you look at the the Federal law above. NO alcohol within 8 hours of flying a plane or even being a "crewmember" of a plane. Zero Tolerance is the law.

Denzel drives drunk with impunity?

In the movie much time is spent watching Denzel battling his alcohol addiction. He is driving and drinking, drinking and driving, in short violating law and order at every turn. Yet, he visits his ex-wife and son unexpectedly, who then calls the police because he is angry and inflamed, they arrive, his car is parked at a fire hydrant, the press arrive, and he is completely sloshed, and he is NOT arrested for DWI/DUI?

Instead we hear that the police escort him to a safe place. This has to be a movie because in real life people get arrested after driving drunk.

Well even after all of that I still loved the movie for the following reasons:

1. Denzel comes to terms with his lying and his addiction. He accepts responsibility, and the depth of his characterization of this event is astounding. His dynamic eyes and facial expressions reveal true transformation.
2. We see the balance of people's reactions and responses to the event (crash) and even to Denzel. Just like real life many people just don't know where or how to place a life changing and fatal event.
3. Act of G-d. A loaded expression or an expression loaded with emotion, where is G-d's role to play in all of this life stuff? Is there a G-d? Is this an Act of G-d? This is real and I see it daily in my practice, people trying to make sense of tragedy, to find meaning in the harsh consequences of the world's reality.

My wife and I walked away talking, discussing, and challenging one another. To me that is the proof of a good movie, now after we watched Cloud Atlas both of us were completely silent. Maybe we were so stunned by the brilliance? Or maybe something else?

Larry Newman, Ithaca Attorney

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

The Ithaca Doctor/Lawyer: Avoiding the Two Biggest Mistakes in Making a Disability Claim

from 123rf.com

I have represented, treated, and testified for thousands of disabled people over the span of 26 years. First as a Chiropractic Physician in Florida, and then as an attorney in NJ, FL, NY, and PA. I have rated them for impairment and disability, have evaluated and diagnosed them physically, and helped them obtain money to compensate them for their losses. Claims for disability can be made in many different areas, circumstances, and times. It is more common to become disabled than most people may wish to believe or think about.

Understanding TWO main ideas about disability claims will go a long way to ensure that yours is good.

First, Dis-ability means just that, UN-able to WORK at a JOB.

Disability is NOT impairment, disability is NOT your injury, disability is NOT your condition or your disease.
It is always job related or job specific. How specific a job is the first question for all claims?

Under an auto policy it just means the job you are doing prior to your car accident. So if you were employed at Burger King prior to your injury then not being able to flip burgers means you are disabled.

Under Social Security Claims the government has set a line in the sand at 50 years of age to make a job determination. If you are 50 or older (I am) then the last 6 years of your work life are your baseline "job." In other words, if you can't perform that type of work (the one from the past 6 years) you are 100% disabled. If you are less than 50 years of age (at least to the government) then "any" work you can physically and mentally do is the baseline. So being 100% disabled and being under 50 is a big deal to social security.

Under a private disability claim policy from a company you work for or self pay you must read the policy. It may specifically state what is and what is not disabled based upon time and job. Some policies are called "own" occupation, which means the occupation you are trained, experienced, and educated for. Other policies have looser definitions of work and employment. They might state "any" job, so your being trained as an engineer BUT being able to tear tickets at the local movie theater means that you are NOT disabled.

Second, Disability is NOT determined by YOU.

This is by far the biggest MISTAKE I see most people make. You cannot wake up and decide I can't work and then make a claim. Your doctors, and your healthcare providers (Physician Assistants, Nurses, etc.) MUST make that DETERMINATION.

Disability is always a DETERMINATION for a professional to make after an ASSESSMENT. Ongoing disability requires ongoing (continuing) evaluation and assessment. Ongoing claims need to be substantiated (shown, proven, validated) with SUBSTANCE (objective findings, testing, treatment, care).

That is why it is vitally important that you tell them all of your symptoms, problems, and limitations. A record must be made and kept to make any claim for compensation. They put you on or off disability. They continually monitor and evaluate you as time goes by. Making a record and establishing connections between your injuries (diseases, conditions, etc.) and your INABILITY to Function and to WORK is everything. Complete, detailed, and validated documentation of a disability claim will help everyone in the process. Giving claims examiners all the reasons for the disability and then the documentation makes your's stand up to any scrutiny or potential contest (challenge as to authenticity). In other words, is your claim REAL? Real claims have real documentation, causal connections, and continuity.

These two things are true regardless of:

Whether the claim was for personal injury disability against an insurance company for a car or truck accident.
Whether the claim was for a worker's compensation claim.
Whether the claim was for social security disability against the government administration.

Understanding these two truths about claims will help you make your claim for compensation stronger.

Dr. Lawrence Newman

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

http://www.ithacainjurylawyer.com

Ithaca Lawyer Asks Are You a Participant or a Spectator in Your Legal Case?

This is a Poster from Cayuga Medical Center

As the poster above illustrates, we are living in a day and age where people must ensure that their health providers (and legal providers) are doing what needs to be done.

The Medical "Speak Up" campaign highlights:

1. Ask Questions (know what's going on)
2. Pay Attention (be focused on what the doctors are doing, giving, and saying)
3. Educate Yourself (concerning diagnosis (what's wrong), tests, and your treatment)
4. Ask others You Trust to Speak Up for YOU
5. Know what your taking and why you are taking them
6. PARTICIPATE 

What is Representation?     

I believe that Any Representation = A Relationship

Years ago we lived in an age where people brought their problems to a professional (doctor, lawyer, CPA, financial advisor, etc.) and just let them handle it. "It" being their legal, financial, or health problem or situation. This person would just tell you what to do, where to go, what to say, and what to sign. There was little to no discussion or communication. The doctor said take this, the lawyer said do that, and so it went on and on. The basis of most of these relationships (representations) was authority to underling. This unbalanced relationship pitted the wise knower to unwise ignorant (lack of knowledge, not stupidity).

MY Holistic View or Viewpoint

I tell my clients as I told my patients (when I practiced Chiropractic) that you are not a mushroom who should sit in the dark, YOU are going to be involved in your case (and in your care) so that YOU are empowered, understand your options, and make choices (decisions) with intelligence. 

Being The Participant vs. Being the Spectator

These days we live in the age of information, the age of knowledge. It is abundant, it is accessible, and it is free. In my opinion, it is there (the internet, the library) so that people should no longer live in the proverbial darkness. We can look up people, diseases, crimes, processes, procedures, methods, philosophies, etc. It is wonderful to get answers to our questions, and even better I believe to have better questions to ask.

The dangers with too much information I see are twofold:

(1) lack of proper context (placement and perspective) for the information you gather,
(2) misinformation (too many sites, blogs, and articles written without credentials or experience)

A good advisor (navigator) will lay out the field (show you where the land mines (pitfalls) are) and help you make the best decisions about everything.

Remember that the basis of any accepted Court Plea (decision) must be threefold:

1. Voluntary (not forced or coerced)
2. Intelligent (understanding the options and it's relation to YOU specifically)
3. Knowing (the 360 degree perspective, the past, the present, and the future)

I say, You Should Speak Up to all Your Providers, of any professional service, especially legal ones.

Reviews of Larry Newman:

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

Larry Newman, D.C., J.D.
"counsel for flowers not mushrooms"

Doctor of Chiropractic
Attorney at Law (Juris Doctor)

504 North Aurora Street
Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com

Ithaca Cortland Lawyer is Certified on the Draeger Alcotest Breathalyzer

Lake Cayuga sits at the Base of Ithaca, NY

I live within Blocks of this? Amazing!

This is NOT New Jersey!

Life has a great many twists and turns. I practiced law in New Jersey (and Pennsylvania) long before I practiced in New York. I lived in N.J., worked in the NJ prosecutor's office, married a girl from NJ, and enjoyed my time there BUT I'm a New Yorker at heart. I was born and raised in the streets of Brooklyn. You can take me from those streets but they are within me everyday.

Funny how I used to make fun of people who lived in the sticks (as my dad used to quip) but I love upstate New York, and in my more mature years (chronologically not mentally or emotionally) I have grown to enjoy the wide expanses of trees, hills, and farmland.

How did I get to the New Jersey Draeger Alcotest Certification?

1. I belong to the NCDD (National College of DUI Defense) and participate in their listserve with thousands of lawyers around the country who focus their practices on DUI/DWI/OUI defense.

2. I look for seminars, conferences, and programs that can improve my ability to defend DWI cases. I have been to many courses that teach breath testing, blood testing, and police field sobriety training.

3. My Coup D'etat!

I found out that the New Jersey Supreme Court has mandated that the Draeger company (which manufactures the Alcotest 7710 and 9510) has to provide assess to the defense bar (criminal defense lawyers) once per year the same test training and certification as it provides to the New Jersey law enforcement breath test instructors (called the coordinators). This is since 2006, so I am one of about 115 (120 took the course since 2006 but some are repeaters) certified by Draeger on the Alcotest.
I got excited because the Draeger is the main breath tester of our New Your State Troopers.

The course I took was limited to 20 participants. Many of them were experts who testify in Courts on the Draeger instrument, breath testing, and blood testing. There were some Phd. pharmacologists from Ohio, a few expert certified State Troopers, and a bunch of us defense lawyers. I was the only DWI defense lawyer from New York State.

I was trained and certified on the Draeger Alcotest (the only unit used in New Jersey) in the software, the analytical system, components and peripherals, as well as how to operate the instrument and perform a specific breath test sequence.

Me and the VP of Draeger, Hansueli Ryser

A lot harder to blow into than I imagined


All pictures taken with my new SONY Cybershot DSC- RX100
Absolutely a fabulous camera (recommended by David Pogue, New York Times tech genius)

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.

Reviews of Larry Newman:

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

Dr. Lawrence (Larry) Newman
Doctor of Chiropractic
Attorney and Counselor at Law


Ithaca, NY 14850

607-229-5184
newman.lawrence@gmail.cm

http://www.ithacadwi.com

New York State Police Use the Draeger Alcotest for DWI Arrests: Potential Defense Issues

2012 Certification on the Draeger

DOWNSTATE DWI TESTING

New York State uses a variety of breath alcohol testing devices to prove DWI (Driving While Intoxicated) crimes. In the Boroughs, and downstate (Queens, Manhattan, Brooklyn, the Bronx, Staten Island, Long Island) they utilize the Intoxilyzer 8000.

UPSTATE DWI TESTING

Law enforcement in Upstate New York Towns, Villages, and Cities use the Datamaster DMT. The state police love the Draeger Alcotest, which comes in two models the 7110 and 9510. By far the Draeger is the state of the art unit. It has dual sensor technology (two forms of testing) consisting of an electrochemical (fuel cell) system and an Infrared System.

What's in a name?Is it an Instrument, a Device, or a Machine?

The police, the prosecutors, and the manufacturers love to call them "instruments" but many of us in the defense community just loosely refer to them as "machines." At the certification class I just attended the instrument creator, and vice president of Draeger, Hansueli Ryser (I kept thinking Hans Solo from Star Wars) got upset that I referred to it as a machine, he said "Larry it's an instrument not a machine." I can understand the sensitivity, afterall I would not want my instrument which measures blood alcohol concentration to an accurate degree referred to as a mere machine just as the late Steve Jobs would not want his iphone referred to as a phone.

Evidential Breath Testing BUT does it Equal "Valid" and "Accurate" Evidence 

They are technically and more importantly legally recognized as evidential breath alcohol testing units. The evidential means that they have been approved, certified, and most importantly recognized to yield results that can be used in Court as "evidence" and as "proof" of the BAC (blood alcohol concentration) at the time (or there abouts) of testing.

This proof can be used against you to prove you were Driving While Intoxicated or Driving While Impaired in New York State. The list of approved devices is huge. These are just the best of the lot and the ones used in New York State. 

The Issues with Breath Testing

As great as these units are they have their limitations and issues. Just like any computer or microprocessor based system, garbage in yields garbage out. 

1. Must have a Good Sample of Breath.

One of the most important aspects of breath testing is gathering a sufficient, clean, and accurate sample of breath. There is a mandatory period of uninterrupted and continuous observation of the person before blowing into the unit. This is a big point of contention (defense) in many states with breath testing. Police observation in the back of police car (cruiser) prior to testing does not count. Leaving the subject in the room unattended does not count. Turning around to do paperwork does not count. 

Uninterrupted means uninterrupted.

Continuous means continuous.

In New York State it is a 20 minute period of time for this observation and not one minute less.

2. Biological Variables Person to Person

The units are set for the average person with an average basal (body) temperature with an average breath. Even the best of units will have a range of error just based upon this. They say the average person is Chinese, a female, and dead so averages can be deceiving and wrong.

3. The BIG Assumption

The biggest assumption with evidential breath testing is that the subject is done metabolizing alcohol. In other words you (and your body) are beyond the absorption phase. Your body has completely absorbed all the alcohol consumed and NOW you are completely in the elimination phase of alcohol. Why is this fact so important? Because prior to complete elimination your body will have varying concentrations of alcohol between the breath, the blood, the lungs, and cardiovascular system.

All of this is based upon Henry's Law which basically states that in a closed system of liquid and gas eventually the concentration of the molecules of a substance in the liquid will be equal to the concentration of the molecules of the substance in the gas above it. In the realms of breath alcohol testing we have BREATH (the gas) and BLOOD (the liquid).

From thescubastop.com

For illustration, #1 is one to one ratio (balanced), then #2 we have increased alcohol concentration in the lung (breath) tissues during the alcohol absorption phase, then #3 balanced alcohol in lung (breath) and blood in elimination (expiration) phase.

So in the absorption phase (#2) we have an unequal concentration of alcohol in gas (breath) and alcohol in blood (blood alcohol concentration). In fact in the absorption phase (#2) we have a higher BAC in the breath (cardiovascular/lungs/heart) area of the body and a lower BAC in the blood system.

So no matter how good a machine/instrument/unit/device we have these areas of contention. The human variables are always present without even getting into the problems with an accurate measurement.

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.

Reviews of Larry Newman:

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

Dr. Lawrence Newman

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

http://www.ithacadwi.com