Ithaca Lawyer Understanding YOUR DWI Sixth Amendment Rights are Meaty

Your New York Fair Trial Rights, A Meaty Amendment
from servicesannenbergclasroom.org

People love throwing around the Bill of Rights, and the amendments to the Constitution piecemeal. As if each amendment equals one right you have.

In truth the Sixth Amendment is a "meaty" amendment. It has a lot going on and gives you your "Fair Trial Rights." It may be one amendment but it is packed with entitlements and protections.

First some clarification, The First Ten Amendments = Your Bill of Rights.
The Sixth Amendment is specifically related to your Rights Involving Criminal Process against YOU.
These are the protections afforded us against the government. They were fought for long and hard by our forefathers (and mothers).

DWI cases are defended and fought based upon the 4th, 5th, and 6th Amendments.
The Sixth Amendment has these 7 parts:

1. Right to a Speedy Trial
There is a time table. They can't take forever to prosecute you.

2. Right to a Public Trial
You have a right to have everyone know how you have been treated (fairly or unfairly). No secrets, total transparency.

3. Right to an Impartial Jury
You are entitled to pick a jury. Sometimes this is more like a de-select a jury.

4. Right to Confront Witnesses (this is also called the "Confrontation Clause")
You have a right to question those accusing you of criminal behavior. To bring to light their biases, their prejudices, and to challenge their opinions. In a DWI case these are usually police witnesses.

5. Right to Compel the Court to Subpoena Witnesses
You have the right to make people come to Court.

6. Right to an Attorney (counsel)
You have a right to be assisted by an attorney at every step/stage in the process.

7. Right to Information and Notice of what the charges are and what proof they plan to use
You have a right to know what you are charged with, how they plan on proving these charges against you, and what specific statements they plan on using against you

Every person accused of a DWI has these Basic Constitutional Rights. Their attorney is there to assist them, assure them, and use them to protect their interests at every stage of the process. None of this should be taken lightly.

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

http://www.ithacadwi.com

607-229-5184

Using the NYS Trooper STOP of a Car to Defend a New York DWI

New York State Troopers have great hats and uniforms
from forums.officers.com

The New York State police are great psychologists. Why the badge, the uniform, and the big hat? Because you can argue with a person (a human), you are not going to argue with a Trooper. They have to be masters at the psychology of control and manipulation because their jobs and lives depend upon figuring people out and taking command.

They must quickly assess, control, and take charge of situations. Sometimes these situations may involve people strung out on drugs and alcohol. Sometimes they are dealing with people who are fighting, arguing, yelling, and/or in the throes of craziness.

Trooper Take Down 101, from flicker.dwightsghost

The most dangerous thing a trooper will ever do is pull over (STOP) a car. Safety is paramount, because they just don't know so many things. They don't know if the person in the car is wanted, is dangerous, is high, is armed, and most importantly is going to try to hurt them. All that uncertainty leads them to approach these car stops with a lot of caution.

Once they notice a violation (equipment/moving) they will turn on their "take down" lights. Perhaps they will also use their siren. Once the car pulls over it is literally bathed in light. This for officer safety.

All the details of the STOP of the car can be used to help defend a DWI case.

A motorist's "Mental and Physical" ability is displayed not just on field sobriety tests but at every moment of their encounter and investigation with a State Trooper.

1. The trooper will first note your ability to respond to his lights in their report.

Did you slow to a stop and respond quickly to his lights? Did you pull safely to the right? Did you use your blinkers (turn signal)? Did you pull to a safe location? Did you park parallel to the pavement?
Did you strike or hit the curb? Did you place the car in park? Did you turn off the car?

2. The trooper is going to be able to see inside the car completely. They will be looking at all of your physical movements inside the car. 

Did you turn off the car? Did you remove your seatbelt? Were you able to open the glove box and take out a registration/insurance? Were you able to retrieve your license from your wallet? Did you put down the window?

Did you fumble? Did you struggle to open the glove box? Did you fail or forget to get your license out of your wallet? Did you give them a credit card and not a license?

Alcohol affects physical coordination and fine motor movements. People who are impaired or intoxicated have difficulty with even simple tasks.

3. Every trooper command, direction, and instruction is a mini-test.

Did you follow the instructions? Did you appear to understand all his/her directions? Were your responses to these commands appropriate?

Did you stare at them blankly after they asked you a question? Were you slow to respond to their commands?

Alcohol affects mental function and cognition. People who are under the influence may not be alert and aware of their surroundings. They may be slow or lack the ability to follow even simple directions.

4. Your exit of the car will be observed closely.

Did you trip, stumble, or fall? Did you use the car's door frame to balance? Did you need to hold on to the car after your exit? Did you remember to take off your seat belt before exiting?

All of this occurs prior to the giving of any FSTs (Field Sobriety Tests). That is why THE STOP of the car must be scrutinized. The defense of a DWI case must look at ALL aspects of your contact with law enforcement not just the ones that they (the police) may selectively highlight.

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

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY
newman.lawrence@gmail.com

607-229-5184

http://www.ithacadwi.com

Using a Driver's Mental State to Disprove a NYS DWI Refusal?

Gotta Love Joaquin, from latimesblogs.latimes.com

Recently Coke launched an advertising campaign built on the power of their brand's OPTIONS. You can have your cake AND eat it too so to speak. The commercials highlighted people asking for things by using the "AND" word as a question? Clever, and a reminder that laws are written and applied using the same principle.

In the world of NYS DWI defense the word "and" has equal power and significance. Under our case law (remember NYS is a common law state) the definition of intoxication is defined, interpreted, and applied as "physical and mental" incapacity to operate a car as a reasonably prudent driver. The power of "and" strikes again.

The two prominent cases (without BACs) on how to define "intoxication" in NYS DWI are People v. Cruz, 48 NY 2nd 419, and People v. Bradford, 408 NYS 2nd 1013. Both these cases shed some much needed light on how the Courts apply this legal standard "to and in" the real world of mental and physical human conduct (behavior).

Without a BAC (blood alcohol concentration) from blood or breath a NYS DWI will need to be proved by the driver's behavior.

Three elements have resulted in convictions for DWI Refusal Cases:

1. Both have reckless driving that either resulted in an accident or could have (substantial likelihood)

AND

2. Both have inability to lack of physical coordination (inability to balance, inability to walk steadily)

AND

3. Both have lack of a rational mental state (can't answer questions intelligibly)

My focus in many Court hearings is on showing that my client was able to walk, talk, answer questions, and follow directions normally.

Rational mental state is a critical factor in disproving intoxicated operation and opening the door for a plea to impaired driving (VTL 1192 (1) DWAI Driving While Ability Impaired).

To assess my DWI cases I follow the same line of thought and reasoning as if assessing a patient's mental status. My Chiropractor days forever emerge in my proving a client's rational mental state at the time of driving, and disproving a DWI.

The Mental Status Exam

 The MSE is a clinical assessment process. It is a structured way of observing and describing a patient's (driver's) current state of mind, under the following categories:

1. Appearance (person and clothing)

Physical aspects such as the appearance of a patient (the driver), including manner of dress and grooming, and odor. Are they disheveled? Unkempt? Have they been rolling on the sidewalk/grass?

2. Attitude

This refers to the patient's (driver's) approach to the interview process and the interaction with the examiner (the police officer). Were they cooperative vs. combative, belligerent, angry? Or were they polite, respectful, and cooperative?

3. Behavior

The patient's (driver's) eye contact and gait (ability to walk). Did they establish eye contact? Walk, talk, and respond normally?

4. Mood and Affect

Mood: neutral, euthymic, dysphoric, euphoric, angry, anxious or apathetic (responsive vs reactive)

Affect may be described as appropriate or inappropriate to the current situation

Was their mood and affect normal to the police investigation?

5. Speech

Was their speed understandable and normal? This is the production of speech not the content of their speech.

Police love to state in their reports (narratives) "slurred" speech BUT was their speech unintelligible? 

Break down their speech into the following categories:

·         Rate of speech: Rapid, slow, ordinary

·         Flow of speech: Hesitant, expansive, rambling, halting, stuttering, lilting, jerky,

long pauses, forgetful.

·         Intensity of volume: Loud, soft, ordinary, whispered, yelling, inaudible.

·         Clarity: Clear, slurred, mumbled, lisping, rambling, relevant, incoherent.

·         Liveliness: Lively, dull, monotonous, normal, intense, pressured, explosive.

·         Quantity: Responds only to questions; offers information; scant; mute; verbose, repetitive.

6. Thought Process/Pattern

Was their thinking in proper quantity, tempo (rate of flow) and form (or logical coherence) of thought, retarded or inhibited thinking?

Thought Patterns

·         Clarity:  Coherent, incoherent, cloudy, confused, vague

·         Relevance / logic:  Logical, illogical, relevant or irrelevant to topic being discussed.

·         Flow:  Excited, flight of ideas, tangentiality, poverty of thought, word salad, clang associations, slow, normal or rapid reactions to questions, doubting, indecision, loose association, blocking, perseveration, spontaneous, continuity of thought.

7. Thought content

Were their responses to questions, instructions, and directions appropriate?

8. Perception

There are three broad types of perceptual disturbances: hallucinations, pseudohallucinations and illusions.

Was there any distortion of the patient's (driver's) sense of time and place?

9. Cognition

What was the patient's (driver's) level of alertness, orientation, attention, memory, visuospatial functioning, language functions and executive functions

 Alertness is a global observation of level of consciousness i.e. awareness of, and responsiveness to the environment, and this might be described as alert, clouded, drowsy, or stuporose (in a stupor, daze).

Orientation is assessed by asking the patient where he or she is (for example what building, town and state) and what time it is (time, day, date).

Attention and concentration are assessed by the serial sevens test (or alternatively by spelling a five-letter word backwards), and by testing digit span.

Memory is assessed in terms of immediate registration (repeating a set of words), short-term memory (recalling the set of words after an interval, or recalling a short paragraph), and long-term memory (recollection of well known historical or geographical facts).

Visuospatial functioning can be assessed by the ability to copy a diagram, draw a clock face, or draw a map of the consulting room.

Language is assessed through the ability to name objects, repeat phrases, and by observing the individual's spontaneous speech and response to instructions

10. Insight

Ability to understand and follow thought patterns and now where things are going. Proper anticipation and participation. 

11. Judgment

The patient's (driver's) capacity to make sound, reasoned and responsible decisions.

We as DWI defense attorneys must overcome the hurdle of dis-proving Lack of rational mental state by exploring on cross examination of the police each of these areas.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic

Attorney and Counselor at Law

Ithaca, NY 

607-229-5184

http://www.ithacadwi.com