Defeating A DWI

I love to surf, the internet that is. Just yesterday I punched in the above terms "defeating a dwi" and what pops up number one but an article by me. At first I was excited, a google number one, then my expression changed as I saw that my name was left off, and admin was put on as the author.

This was a website for a chemical that eliminates odor from your breath. It was being marketed to drinkers who wish to avoid detection as in if you are ever stopped for a traffic infraction just a quick spray and the cops will go away. As I delved further I found more articles sans name. My anger at this internet piracy grew. The articles mentioned the death of my father the day after my 17th birthday, the name of one of my friends, and other personal information. Everything was there except credit to moi! I'm just a little Upstate New York DWI defense lawyer but I do have feelings. Ithaca inspires me to write and share so it is with joy that I create but give a guy credit.

Their site and my articles sans my name and info.

www.sobriety-checkpoint.net

http://www.sobriety-checkpoint.net/category/dwi-sobriety-checkpoints/

http://www.sobriety-checkpoint.net/tag/case/

My original articles:

http://www.articlesbase.com/criminal-articles/defeating-the-new-york-dwi-refusal-case-1330173.html

http://www.articlesbase.com/criminal-articles/the-power-of-words-in-dwi-case-1335602.html

http://www.articlesbase.com/criminal-articles/what-do-sex-and-intoxication-have-in-common-1330200.html

http://www.articlesbase.com/criminal-articles/defeating-a-new-york-dwi-by-beginning-with-the-end-in-mind-1335399.html

So on that note I wish to highlight the power of "honesty" in defeating a DWI. Some may think me mad in advocating for truthfulness and openness with a criminal case but I have found that not trying to cover up your fears is a better philosophy and strategy for long term success.

Jurors are not stupid. They have the same doubts and concerns as the lawyer looking at the case. If you do not allay their questions openly they will most assuredly be discussing them back in the Jury room.

We as DWI defense lawyers can not look to sweep dirt under rugs and pray that it is never discovered. Everything can be seen from different perspectives. The key with good advocacy is to put yourself in everyone's shoes. Put yourself in the shoes of the juror, put yourself in the shoes of the cop, put yourself in the shoes of the prosecutor, and put your self in the shoes of the judge. Now the case can be seen as a total whole and not a bunch of random pieces or events.

The facts of any DWI case are nothing without context. Someone has to have a viewpoint of that fact.

This is from an actual case. Fact, a driver was pulled over for having headlights that were too bright. The officer in his report made no mention of investigating or asking about the headlights. The motorist only traffic violation was the headlights but no detail or documentation of this fact, just a single ticket plus of course the DWI investigation and subsequent criminal charges.

I demanded a suppression hearing on the stop (was there reasonable suspicion), and the arrest (was there probable cause). My plan of attack was a whole line of questioning, first on the importance of the report and it's detail, then on the fact that my client showed him the dashboard, demonstrated the lights on and lights off controls. The "stop officer" had one goal for this stop (investigate the bright lights) and this sole purpose was never addressed by his investigation/inquiry.

All the DWI criminal charges were dropped. This was with a .15BAC. The outcome was a DWAI (traffic violation) pre-trial. My thoughts for this case were always that jurors would want to know, the judge would want to know THE BIG WHY? If you say the stop was for x why are you not checking x, asking about x, and investigating x?

I was able to listen to my client and get "the story" of this DWI case. His story included the lights where the officer's did not.

btw that Company in California that "borrowed" my content without giving me credit:

Pure One International

3400 West Warner Ave., Unit A

Santa Ana, CA 92704

714-641-1430

fax 714-641-1432

Bytes for All (Website creation/hosting) from someplace overseas.

I really do believe what comes around goes around so God bless them and may they reap the fruits of the seeds they sow.

Lawrence Newman, Esquire

607-229-5184

Ithaca, NY

New York DWI Windows of Opportunity

Funny how the things you think about can relate to so many other things. This morning I remarked to my wife how the pear I was about to eat had such a brief period of perfect ripeness. No, I'm not high, but I do get these moments of insight. I have found that pears unlike apples are good, crisp, and delicious (not mealy) for only a few days. Cut them too soon and they are hard and bland. 

Then it hit me, DWI cases also have temporary windows of opportunity. The clock begins to run on every case when you are first arraigned with counsel. This is where you enter your plea of not guilty, and are formally told of the charges against you, by The People (of the State of New York).

Once you are arraigned your attorney must NOW make a demand for Discovery, and for a Bill of Particulars. This is the government's evidence against you (how they plan on proving their case). 

The District Attorney now has 15 days with which to comply with that demand. In addition, you have ONLY 45 days from this first date (the date of the initial appearance) to make, and to file any pre-trial motions. Motions to suppress evidence, Motions to suppress statements, Motions to Contest the use of the refusal against you, Motions to state that the stop and/or the arrest were unconstitutional.

Does your attorney serve the demand upon the District Attorney in Court (at the Initial Appearance)? 

Does your attorney wait? A few days? A few weeks? Does he send a letter? 

My philosophy is that:

1. The ADAs (Assistant District Attorneys) have a lot more cases (files) than I do. 

2. The government employees are typically overworked, and can not possibly know each and every file. 

3. I have more time to spend and think about fewer cases (because I take fewer cases).

4. I have more time to demand, gather, interpret, and study the evidence.

5. I have an advantage IF I use time as an opportunity.

6. There is now a greater likelihood that I will better understand the facts and the case.

7. The sooner I begin, the better my defense (s) to the evidence.

Attorneys are on strict timelines (deadlines). Meaning that if you DO NOT file motions in a timely manner you will lose your opportunity (your chance) to contest and argue them at pre-trial hearings. Too bad, so sad or if you snooze you lose. 

Pre-trial hearings (suppression hearings) are really where cases are truly won or lost. They are opportunities (G-d I love that word) where a lawyer can truly test his defense theories, size up the police officer, and create narrow and focused points of attack. 

So much like seizing that opportunity to eat a piece of fruit when it is perfectly ripe I believe it is vitally important to strike early, strike first, and strike hard with DWI cases. 

Summer is Officially Here! The BWI (Boating While Intoxicated)

Practicing DWI defense in the Fingerlakes region of New York State, and living in Ithaca allows me the privilege of experiencing some amazing lake views. I love to witness Lake Cayuga go through the glory of all four seasons. Everytime I get in my car to appear in another town court in one of the many counties that surround the lakes I am taken back by the the incredible beauty of this area of the country. But of course, that is why I live and practice here, not by chance but by choice.

Summer does have it's drawbacks for me, there will be humid days and nights, lost tourists driving the wrong way down one of our many downtown one way streets, and the pain of yet again changing all the car tires from snows back to all seasons.

I kinda mark the beginning of "my" summer not with the end of school for my kids but by my first BWI phone call. To those not familiar, B.W.I. stands for, Boating While Intoxicated. It is a real criminal charge, and has alot of similarities to it's close cousin the NY DWI. NY BWIs fall under Navigation Law section 49-a. If you want a sleep aid, forget Ambien, go read through section 49-a.

My surfing has led me to conclude that there is little information about NY BWI on the web. There is also some confusing, and wrong information on the internet concerning New York BWI. I am planning on writing a more in depth article about it in the near future. In the meantime I wanted to hit the highlights:

1. Similar to DWI and DWAI there are a BWI (misdemeanor) and a BWAI (violation).
2. The legal standard (definition) for BWI (intoxication) and BWAI (impairment) for water operation of a craft are comprable to operation of a car or motorcycle on land.
3. You are only in danger of losing (suspension) your license to operate a boat not your car. The suspensions are 6 months and up for the BWAI, and a year for the BWI.
4. There are specific boating safety classes required with both BWAI and BWI.
5. The classes have to be either state sanctioned, US Coast Guard, or US Power Squadron safety classes.
6. There is a "contribution" (around $200) to the "I Love New York" Safe Boating Fund.
7. The fines range from $350- $500 for a BWAI, and $500- $1,000 for a BWI.
8. The BWI and BWAI will be reported on your New York DMV driving abstract, so your auto rates will eventually be affected by your boating charges. If you are from out of state it is likely that this will also go on your state's DMV record because NY has an interstate compact with many adjoining states.
9. The BWI is a criminal charge and will affect your entry into Canada in the future.
10.The BWAI violation is also going to affect your ability to enter Cananda because it is an alcohol related offense.
11. If you refuse the Breath Test back at the station (not to be confused with the preliminary breath test on the roadside) you will face many of the same consequences, ie. increased boating license loss, additional fines, as a DWI test refusal.
12. The BWI has a .08 BAC or >(breath alcohol concentration) standard, same as a DWI.
13. There will be additional NY state surcharges of around $240 for a BWAI, and $400 for a BWI.
14. There are two types of BWI, a BWI "per se" offense based only upon your BAC (.08 or >) and a BWI "common law" based upon the officer's observations, field sobriety testing, and other evidence of intoxication.
15. Since NY state has no expungement statute a BWI (misdemeanor) will remain on your permanent criminal record forever.
16. BWIs are defended much the same way as DWIs. The state (the prosecutor) still has the burden of proving you were intoxicated at the time of operation. The breath machine can be challenged for accuracy, validity, and reliability. The officer's tests can be shown to be administered improperly or scored with bias.

So my thoughts for today, let some else drive your boat, a designated "captain" so to speak. Enjoy the beauty of the lakes as a "passenger" if you want a few cold beers on a hot sunny day.