Part 2: DWI Bill of Particulars/Supporting Deposition

Here we go to the first box on the New York DWI Bill of Particulars/supporting deposition form: Numero Uno It's always about the PROOF in any criminal case.

They (the police) must use this form to remember what is needed to make out the basics of their DWI case against YOU! The more (proof) they have to prove all their charges and the level of the charges the better case they can make against YOU.

BOX # 1
The General Information BOX

Arrest date and time is useful to see how long they (the police) took from the STOP of the car until they made an arrest decision.

DOB, and your sex, I still wonder about the U, as in unknown. Guys or girls (people) named Pat maybe?

License State and your ID number: not enough room here for the NYS nine digit ID code.

Address and Phone number

Where your car was left or towed to? Remember they were not going to let you drive it.

Road Conditions, traffic, and weather: maybe significant if there was an accident, or a ticket for speed not reasonable and prudent, also if the weather affected your ability to drive, things like fog, rain, and snow can impair your ability to drive safely.

Weather can also affect how you performed on the "field" tests. These are performed outside (at roadside) in Upstate New York. Freezing cold, rain, or snow on the ground can affect your ability to do the stand on one leg and walk and turn tests.

Prior Convictions: Were they violations? Were they misdemeanors? Were they felonies?
When were they? Remember a "Prior DWI or DWAI drug" conviction within 10 years would enhance this latest offense to the felony level.

Out of state convictions: Could count against you as well, depending upon their date.

BOX # 2
The Reasons for the STOP of the car/Description of violations/accident

Remember the police need PC (probable cause) to make a constitutional STOP of a car.

Did they witness erratic driving?
Did they witness moving violations?
Did they witness non-moving violations? i.e.. equipment, tag, registration, inspection
Did someone (a civilian/non law enforcement) call it in?
These are called BOLO calls: Be On the Look Out for a _____________

Time of the Stop. Compare this to the time of the arrest. 

BOX # 3
Vehicle Operation Shown By BOX

Under New York State law the legal definition is to OPERATING not driving a motor vehicle.

Operation can be proven by some or all of the following: the police (complainant) observing you driving, or a civilian (non police) witness observing you, your admissions (statements), you behind the wheel (remember they just need INTENT), that you intended to drive, if you are close to the car, if the keys were in the ignition, was the motor running, and/or were you injured from an accident.

Lawrence (Larry) Newman, D.C., Esq.

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 95% 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 425 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.

607-229-5184

http://www.ithacadwi.com

Part 1: The NY DWI Bill of Particulars/Supporting Deposition and 710.30 Notice

What a mouthful, the New York DWI bill of particulars, supporting deposition, and 710.30 notices.
The purpose of my next bunch of blog posts is to take apart this form section by section. What the law enforcement officer (cop, trooper, deputy) has written, checked, or left blank on this form can greatly impact your DWI case and the charges pending against you.

First, what does it look like? 

It is a long police form, 11 x 14, often green or white, and having lots of little check off boxes. It can be very flimsy like a carbon copy sheet.

Second, will I always receive one with a NY DWI arrest?

Sometimes they are provided after the arrest along with the UTTs (uniform traffic tickets), sometimes you have to wait for one after your arraignment (initial appearance) date. It will definitely be given after a demand for discovery by your attorney.

Third, what is it?

It is actually three different things (documents) in one, very convenient indeed:

1. Bill of Particulars: A point by point or section by section break down of what they intend to show (demonstrate) to prove the charges they have filed against you.

2. Supporting Deposition: A signed affidavit by the arresting officer attesting to what they observed, instructed, smelled, and heard.

3. 710.30 Notices: What statements they allege you made to the police that they plan on using against you in Court. You are now on notice (apprised) of their intent to use them.

So let us begin at the top of this form,

You are the named defendant (the one charged) with a DWI.

That you are charged by Simplified Traffic Information (usually) the UTTs (uniform traffic tickets) you received form the arresting officer. These will have TSLED numbers for processing. That way the Court of jurisdiction will receive these from the TSLED system electronically.

TSLED = Traffic Safety and Law Enforcement Disposition System. This system is maintained and monitored by the NYS DMV.

When it comes to a New York State DWI: The big triad is The Unified Court System, the DMV, and the police. All must communicate clearly with one another throughout your legal process.

The way it works:

After your DWI arrest the LEO (law enforcement officer) will punch all his information concerning your tickets (charges) into his computer. This will then be logged into the TSLED DMV system, and will then be (eventually) transmitted to the appropriate (traffic) Court.

The grand connection is between the Court, and the police, VIA the NYS DMV. That is why if anything is input "improperly" into this system your driver's license and computerized driving record will be greatly affected.

THE TOP OF THE NEW YORK BILL OF PARTICULARS/SUPPORTING DEPOSITION  

New York states that you have been charged with OPERATING A MOTOR VEHICLE (they leave out WHILE) UNDER THE INFLUENCE OF ALCOHOL contrary to section 1192 of New York's Vehicle and traffic law (VTL). New York only has DWIs (driving while intoxicated) or DWAIs (driving while impaired by alcohol and/or drugs). This paragraph can be confusing because New York State has no DUI (driving under the influence) type of charges.

The Undersigned Complainant (this is the police officer), who is complaining against YOU.

Based upon DIRECT knowledge (he witnessed you) UNLESS otherwise specified (below he will state other witnesses and/or proof)

YOU drove a motor vehicle, within the COUNTY, within the JURISDICTION of the Traffic Court (public highway/parking lot) in the city/town/village of ____________ either

While in an INTOXICATED CONDITION = DWI Common Law

OR

Having a Blood Alcohol Content (breath/blood) = BAC of .08 or more  = DWI "Per Se"

The next part of the form are labeled 1 through 9 and will be discussed in future blog posts in greater detail.

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 95% 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 425 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.

http://www.ithacadwi.com

607-229-5184

newman.lawrence@gmail.com

No Game of Chicken: The Default is Always to Plead Not Guilty to Criminal Charges

Nobody is Playing Chicken by Pleading NG!
from history.org

Recent headlines have Andrea Sanderlin, AKA "Pot Mom" captured as the "anti-hero" and as giving up after she had initially plead NOT GUILTY to the Charges. The news loves drama but accuracy is another matter entirely. Sadly even many "law" sites and blogs have taken this same route to achieve ratings or rankings. When I read some of the stuff out there I think no wonder the public is so misinformed and confused.

"Initially, Sanderlin pleaded not guilty to the charges."

"It's not uncommon for defendants to plead not guilty as a strategic move."

"A "not guilty"-plea strategy is essentially a game of chicken -- a game that this mother of three apparently wasn't willing to play."
                                      From Findlaw.com


Who writes that entering a Not Guilty Plea is a Game of Chicken or a Strategic Move?

Any criminal defense attorney or anyone (clerks, bailiffs, staff) that spends any time in Court will tell you that pleading NG is what you do initially. It is NOT a strategy or a GAME. It is standard. It is the default setting.

What sense would it make to plead guilty to everything alleged by the government? 

Allegations and charges come about by the probable cause standard. This is a very low (read minimal) standard of proof. This is most certainly nothing that we would want to put people in prison for.

The Truth May Hurt but it is Liberating!
From mormonmatters.org

THE TRUTH BEGINS WITH 3 THINGS

People plead NOT GUILTY to the charges against them everyday. In fact, if you say nothing or don't have an attorney at the time of your initial appearance the Judge by default will ENTER a plea of NOT GUILTY. This follows our Constitution, it is aligned with your fundamental rights as an American.

1. You start every single case with a presumption. It is called the Presumption of Innocence.

2. Secondly, the government has the burden, their hurdle is to Prove you guilty.

3. Lastly, this proof must be Beyond a Reasonable Doubt.

Coming into Court and being arraigned on charges is being apprised of what you are facing. These charges are usually the highest (most severe) possible. The prosecution (District Attorney) will stretch every iota of evidence to grasp at the harshest of the criminal statutes. This is normal. It allows them room to move down (negotiation room) and/or to tailor or offer a sentencing recommendation to the Court (Judge) in the future.

Who comes into Court and Pleads Guilty?

First off, no one in New York State facing criminal charges, especially Felony level criminal charges is going to be allowed (by a Judge) to even consider pleading guilty without legal counsel. Recent case law has decided that this is "ineffective assistance of counsel" and a reason to grant you a vacating of your plea (taking it back). You MUST have counsel to help you when CONSIDERING a criminal plea.

Secondly, any attorney representing you will look at discovery (government proof) and discuss it with you as a matter of ensuring and assuring what they do have against you (as to proof). This will generally not be provided immediately (at the arraignment) by the prosecutor.

Guilty Pleas are a Big Deal.

Generally, Way before someone comes in and enters a Plea of Guilty a defense attorney is also given assurances by the Judge and/or the DA as to a sentencing recommendation.

This maybe to a specific sentence, like 2 weeks in county jail, or straight probation, or a conditional discharge, or no greater than the PSI (pre-sentence investigation). Every serious case (felony level) will have a mandatory PSI. Some misdemeanor cases will also have PSIs. This is a review by the county probation department which will then make a recommendation to the Court and the DA of what they feel is an APPROPRIATE sentence for this person based upon their entire life history.

So back to this Game of Chicken thing?  

As I sometimes tell my kids, it just doesn't work that way!

If you have questions about your DWI/DWAI charges or other traffic violations within the Finger Lakes region you can either call me or send me an email.

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 95% 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 425 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607.229.5184

DWI License Issues: America's and My Love Affair with Driving

The Sizzlers by Hot Wheels, a boy can only dream
from sizzlers.dezigndog.com

There are things that I love, like cars and driving. Maybe that's why I practice DWI defense? Yeah I know you should never love "things" especially things that can't love you back but I have since a boy loved wheels, motors, and tires.


My favorite toys were my matchbox cars, sizzler hot wheels (motorized mini cars), and my James Bond Aston Martin. Even thinking of my first Tonka dump truck at age 5 brings a smile to my face and a tear to my eye. I used to play on the floor for hours. Zoom Zoom wasn't a commercial, it was something I uttered all day long.

Got this for being sick at age 5
from ebay old toys

The cars would zoom here and there, and for hours I would have them talk to one another. Years after I left home for college I returned to find my mom threw my box of cars in the garbage. Thanks mom! I guess she never got it. She still thinks I should just grow up but I refuse to give up my joy for cars. With age my cars just got bigger and better, I sometimes even talk to them but they don't talk back to me (thank G-d).

My dad's last car (his fav) a 1972 Olds Delta 88 (rocket 350)
from mad4wheels.com

My dad loved his cars. Maybe that's where I got my inspiration. He saw them as large land yachts. Big, heavy, loaded, and powerful V-8 American Chevy and Oldsmobiles (his favorites). They were a way to see and enjoy all of America.

He loved to drive us places. The joy of a road trip. He would settle into his seat, light up a smoke, and sing along with the radio. His love affair became mine as well. Some people hate driving. These people look upon it as an onerous chore. They find no joy in getting behind the wheel. Cars are merely transportation to them, something to get from point A to point B. I never really understood that.

Cars were romantic to me. They were exciting. They were a way to pick up and date girls. I loved their design, their engineering, their power, their beauty, and their grace. I spent many a Saturday washing and waxing my car. It got my love, and attention.

So what is it that I love about cars and driving them?

1. Cars Mean Freedom

Nothing is more American to me than a wind open road and the ability to roam. One of the most popular songs this summer was "Cruise" and for good reason. People go into a Zen like mental state when they are cruising along the highway. It is a beautiful way to relax and enjoy the scenery. I used to say, "five bucks in my pocket, a full tank of gas, and I'm set for the day."

2. A Driver's License Gives You Options and Power

A driver's license is empowering. It is a your permission to travel from place to place on your own. Controlling your own auto is liberating. It allows you to control and direct your destiny. Your destination may be a job, a girlfriend, a new town, a restaurant, a movie, etc. It offers up infinite possibilities of where you can go and what you can do.

Without a license (especially in Upstate NY): 

Your job (employment) prospects are greatly limited.
Your getting to a job may be dependent upon a bus schedule.
Your friend prospects are reduced.
Your activities are curtailed.
Your ability to provide education, food, and shelter is reduced.
It will affect you socially, and impact you financially.

3. Having a License Feels Like a Constitutional Right

We are guaranteed Life, Liberty, and the pursuit of happiness. Pursuit to me implies driving. I am certainly not pursuing happiness on foot or by bicycle. Ithaca may love them, may love conservation, but the motor, the engine is pure joy to me. It sings a song like no other. I'm no Quaker, give me modern technology.

Yeah I know that the car didn't exist for the framers but I think they would have loved it as much or more than I do based on their personalities. They absolutely loved freedom, hated oppressors, and believed in manifest destiny (G-d given expansion of our interests). Pursuing education, pursuing service, pursuing creation, pursuing family, pursuing better food, pursuing is best done with a motor, Amen!

I could not imagine living my life without cars and the ability to drive them. I guess if I lived in the big city some would think of them as more luxury than necessity. I see them as being a way to a richer and more meaningful life. A life free of bounds or restrictions. A life of enormous opportunity.

That is why having a driver's license threatened or endangered by a DWI or other moving (speeding) violation means as much to me as it does to my clients. One of the first things people want to know is:

What's Going to Happen to My License? 

Will I Lose My License?

People who need to feed their families, take their children to school, activities, church, sporting events, and doctors. Their licenses and cars give them the ability to remain close to their families. It is vital element to a fulfilling life


If you have questions about your DWI/DWAI charges or other traffic violations within the Finger Lakes region you can either call me or send me an email.

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 95% 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 425 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607.229.5184

Cortland Lawyer The Art of DWI Subtlety: Small Details Can Mean Big Things

Subtlety Can be Difficult at times
from alltherightquestions.com

Matters of degree, subtle shades of grey, may be hard to distinguish but oh so costly to miss.

Webster says: "Subtlety is when a detail may be important but NOT obvious."

A small degree of difference between this and that legally can turn a matter from blessing to curse or vice versa.

The TWO Different New York DWIs

There are two distinct types of DWI charges: One is based strictly on opinion based on behavior (conduct) and the other found in a specific BAC (blood alcohol concentration) either through blood or breath testing.

If you take a Chemical test of your blood or breath in NYS you will be arrested and charged with both of these DWIs. At the end of your case they will likely be condensed to one charge, even DWIs with three or more charges will likely plead down to ONE final charge. Often the ADA (assistant district attorney) will not care which particular DWI (common law or Per se) you plead to, so does it matter?

Sometimes neophytes, especially newbie lawyers or newbies to DWI, like to say "it doesn't matter" or "I don't see a difference." I don't see the difference between pleading guilty to DWI common law OR DWI per se (BAC .08 or more). They are both misdemeanors, and have similar punishments. To many lawyers, they are equal, but are they? I am the fly on the wall at so many legal hearings and proceedings watching and listening. I am forever teacher and student trying to learn something new every day.

WHY IT MATTERS

Well it does matter, and I will tell you why it may be of consequence in the future.

THE FACTS

1. We live in a world where people move.

You are likely to move many times in your lifetime. In the United States, 40 million people re-locate every year. Based on current statistics we move once every five years on average. We move because of divorce, corporate transfers, graduation from college, death, financial changes, unemployment, marriage, etc.

2. You will likely have more than one driver's license in more than one state over your lifetime.

The internet has become a dominant part of our lives, it is a tool of big business and the government. Everything about you: your complete "history" will not remain a mystery. Your driving history, credit history, employment history, and arrest history will be with you for a lifetime. It will follow you from place to place. This is the reality of our times. There is now a NDR (National Driver Registry) which is under federal law. No state DMV can issue a license or renew a license without checking you out nationally.

3. Insurance companies will base their rates upon your life history.

Risk management and appropriate assessments are big business. They want to know about you and they will be scrutinizing you more strictly in the future.

So what should YOU do? 

I believe that in the case of a DWI, it is better to move with NO BAC Number on your DWI arrest, charge, and final disposition.

Some states can use it (the number) against you in a future proceedings if you are unfortunately arrested again for a driving while type of offense. With a common law offense there is no number so the degree of misconduct is rather vague. In some states, this may mean the difference between your being UP-charged to a higher level crime, in New York we call this "enhancement." A second DWI (within 10 years) in NYS is a felony level offense.

To avoid potential enhancement in the future it is a small thing to have your attorney guide the ADA and the Court to move forward with the common law DWI plea.

Future Administrative as well as Criminal Consequences

I have seen instances where this can also affect future administrative (license) actions in another state. Some states base their license sanctions on a BAC number. Some will punish more for a higher number. In New Jersey, it is may mean more days of a license being suspended.

In NJ, with BAC of under .10 it is 90 days, while those with a .10 BAC or over it is 210 days. Maybe this is not a big deal in New York State because we award people conditional license privileges with DWIs, NOT so in the Garden State. You will have NO privileges to drive with a DWI/DUI license suspension there.

If there is NO BAC number, it is likely that a future Court/Judge/State/Agency will give you the least of their punishments or license sanctions, just as our NYS Aggravated DWI .18 BAC or higher charge may have them prejudging (labeling) you as a habitual alcoholic. It is also likely they will not be able to substantially relate it to one of their BAC number DWIs.

Sometimes things of value only require out time, focus, and attention.


If you have questions about your DWI/DWAI charges within the Finger Lakes region you can either call me or send me an email.

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 95% 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 425 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607.229.5184

Cortland Lawyer When Do the Police Want Your Blood on a DWI/DWAI STOP?

Who wants Your Blood?
 fm auroraginjoint.com

"I want to suck your blood"

                                                                                                          Dracula

With the approach of Halloween and the delightful fall weather I am reminded that costumes, parties, and drinking (drugging) will soon be in full force in Upstate New York.

WHY October 31?

Don't ask me why but something about dressing up and acting goofy brings out the excess in some people. I would imagine hiding behind a mask plus the lowering of inhibitions with a drug allows some to get loose. I see a great many Halloween party DWI/DWAIs every year. One year the police could not tell the fake blood from the real blood in one DWI accident.

Before you think I condone drinking and/or drugged driving think again, I do not but I do defend and protect people and most importantly their Constitutional rights. To be treated fairly and justly does not end at a roadside arrest (sometimes it does not begin there either).

So my big question for today:

When do the police (law enforcement) decide to take (request/demand) your blood?

I believe that blood is usually requested (instead of breath) in one of three scenarios:

As an aside the Police in New York State get to choose the test or tests of your: blood, breath, and/or urine.

0.00 BAC = No Alcohol

1. If you take a roadside Alcosensor breath test and register a 0.00 BAC (blood alcohol concentration). The police are likely going to continue their investigation into the cause of your problem driving by probing further to your blood contents for other drugs or substances.

Marijuana (drugs) in Your Car 

2. If they smell pot, or find a marijuana joint/blunt in your ash tray. Bingo, they are going to want your blood instead of breath even if you register a BAC showing alcohol. Now they have a drug combo to charge you with, perhaps both DWI alcohol, and DWAI drugs.

Low BAC (.02 to .05) 

and 

Erratic Driving or Behavior Not Equal to the BAC

3. What if your BAC does not = your actions, your conduct, and your messed up driving? What if you fail all the Field Sobriety Tests but have a super low BAC? BTW these were designed to show a 0.10 BAC level. Then the police are going to be looking for other drugs (most commonly pot).

When the police make a blood request you still have to consent unless they go get a search warrant. You can refuse their request and face the New York State driver's license penalties. Sometimes there is no clear cut answer what is the best thing to do, often you don't have an opportunity to discuss your situation with an attorney before making this big decision.

If you have questions about your DWI/DWAI charges within the Finger Lakes region you can either call me or send me an email.

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 95% 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 400 blog posts, dozens of articles, and over 330 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.

http://www.ithacadwi.com

newman.lawrence@gmail.com

607.229.5184

When does Behavior Become Criminal? New York Harassment in the 2nd versus Assault in the 3rd

I've said it before, law is a matter of degree. Subtle differences between one set of facts or perceptions can often mean the difference between a crime and a violation (non criminal). As an attorney practicing defense law a case and it's final outcome (disposition) turns on these details.

Why Do Bad Things Happen at Night?

I love to read and a number of recent books have all pointed to a psychological study from Case Western University on Willpower. Two sets of people are exposed to delicious chocolates and freshly baked cookies. They have to resist the cookies and chocolate. One group is given radishes as a snack (instead of the treats). They are to be compared for their ability to solve puzzles following this crappy snack.

The group given radishes to eat before doing some puzzles had less drive (and interest) to do the puzzles. Their willpower was depleted by avoiding the sweets.

The other group who ate the chocolates and the cookies (delicious) had all the time, concentration, and focus in the world.

The lesson: we are like batteries, with limited amounts of willpower. These will drain and be used up over the course of the day. Imagine now it is late at night, long day of studying, working, and doing things you abhor, temptation rears it's ugly head and viola you get in a fight, drive drunk, or do something you may regret in the morning. Decision making is best left for when we are fresh and rested. Bigger decisions should be slept on. The car dealer that keeps you at the dealership for hours on end has a strategy, wear you down, make you tired, and then victory (persuasion) is far easier.

It's ALL a Matter of Degrees

Physical criminal behavior is merely the step up from the push, shove, or confrontation. It is the taking of a situation to the next level. Moving from one level to the next means you have either upped the damage to that person (physical injury), or injured or obstructed a special person, or you have used a weapon. Sometimes the amount of damages can be argued (defended against), sometimes whether you actually possessed the intent (mental state of deliberateness), and sometimes the facts just don't fit the crime.

The 3 major levels of physical confrontation:

ONE (push, shove, kick)

§ 240.26 Harassment in the second degree.

    A  person  is  guilty  of  harassment  in the second degree when, with

  intent to harass, annoy or alarm another person:

    1. He or she strikes, shoves, kicks or otherwise subjects  such  other

  person to physical contact, or attempts or threatens to do the same; or

    2. He or she follows a person in or about a public place or places; or

    3. He or she engages in a course of conduct or repeatedly commits acts

  which  alarm  or  seriously  annoy  such other person and which serve no

  legitimate purpose.

Harassment is a Violation (non-criminal).

TWO (cause Physical Injury that lasts with substantial pain)

 § 120.00 Assault in the third degree.

  A person is guilty of assault in the third degree when:

  1. With intent to cause physical injury to another person, he causes

such injury to such person or to a third person; or

  2. He recklessly causes physical injury to another person; or

  3. With criminal negligence, he causes physical injury to another

person by means of a deadly weapon or a dangerous instrument.

  Assault in the third degree is a class A misdemeanor.

THREE (causes Serious Injury with a weapon, to a special person, elderly, or just serious injury)

§ 120.05 Assault in the second degree.

   A person is guilty of assault in the second degree when:

    1.  With intent to cause serious physical injury to another person, he

  causes such injury to such person or to a third person; or

    2. With intent to cause physical injury to another person,  he  causes

  such  injury  to  such  person or to a third person by means of a deadly

  weapon or a dangerous instrument; or

    * 3. With intent  to  prevent, injure,   a  peace  officer,  a  police  officer,

  registered  nurse,  licensed  practical  nurse,  sanitation  enforcement

  agent, New York city  sanitation  worker,  a  firefighter,  including  a

  firefighter  acting  as  a  paramedic  or  emergency  medical technician

  administering first aid in the course of performance  of  duty  as  such

  firefighter, an emergency medical service paramedic or emergency medical

  service  technician,  or  medical  or  related  personnel  in a hospital

  emergency department, a city marshal, a traffic enforcement  officer  or

  traffic  enforcement  agent,  from  performing  a  lawful duty, by means

  including releasing or failing to control an animal under  circumstances

  evincing the actor's intent that the animal obstruct the lawful activity

  of  such  peace  officer,  police  officer,  registered  nurse, licensed

  practical nurse, sanitation enforcement agent, New York city  sanitation

  worker,   firefighter,  paramedic,  technician,  city  marshal,  traffic

  enforcement officer or traffic  enforcement  agent,  he  or  she  causes

  physical injury to such peace officer, police officer, registered nurse,

  licensed  practical  nurse,  sanitation enforcement agent, New York city

  sanitation worker, firefighter,  paramedic,  technician  or  medical  or

  related  personnel  in  a  hospital  emergency department, city marshal,

  traffic enforcement officer or traffic enforcement agent; or

 4. He recklessly causes serious physical injury to another  person  by

  means of a deadly weapon or a dangerous instrument; or

    4-a.  He  recklessly causes physical injury to another person who is a

  child under the age of eighteen by intentional discharge of  a  firearm,

  rifle or shotgun; or

    5.  For  a purpose other than lawful medical or therapeutic treatment,

  he  intentionally  causes  stupor,  unconsciousness  or  other  physical

  impairment  or injury to another person by administering to him, without

  his consent, a drug, substance or preparation capable of  producing  the

  same; or

This was shortened purposely because it is way too long and wordy! Many other special people are mentioned, including the elderly.

Consult with a local attorney to discuss any charges you are facing.

Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

Covering cases within the Finger Lakes region of New York State. 


I am a DWI, Criminal Defense, and Personal Injury Attorney in Ithaca, NY. I know the law; I also know the science. Because of past medical training, with degrees in Human Biology and Chiropractic, my wealth of knowledge about human physiology and the science surrounding DWI and personal injury is your asset. My practice focuses on the defense of DWI and representing those hurt in car and truck accidents.  I offer a FREE initial consultation to review the complaint against you, explain your rights and options, and how I can best protect, defend, and represent you. When we talk, I'll also explain my fees and payment policies. I am available at 607-229-5184, or send me an email at newman.lawrence@gmail.com

I am certified as a Breath Alcohol Technician, and in Field Sobriety Testing. I am a member of the National College of DUI Defense

http://www.ithacadwi.com