You Have Rights? Just Not So Much if You Are a College Violator

I practice in an area of numerous Colleges, Universities, and Schools of higher learning. Beautiful and now cold Ithaca, New York. Go 50 miles in any direction and you will hit pay dirt (lots of little private colleges).

Why do they put all these great schools so far from civilization? Is it the cheap real estate? Just saying...

Anyway, the Isolation sometimes breeds boredom. This Boredom leads to mischief which potentially leads to trouble. Trouble can be in one of two forms (there is a 3rd but I don't do relationship or mental counseling) criminal charges and/or administrative ones. Some schools like TC3 (Tompkins Community College) will suspend you (for a term) for a DWI. Some school police (campus po po) will sometimes file an administrative complaint against you rather than a criminal one.

Is this better?Is this worse? Well it's both.

1. The level of proof to demonstrate your guilt is higher on a criminal charge: Beyond a Reasonable Doubt
2. The level of proof to demonstrate your guilt is lower on a campus violation: Preponderance of the evidence (a little bit more likely than not, or 51% to 49% that it is true)

Sometimes it is better to have just a criminal charge, as in possession of marijuana. Then you get Full rights, an attorney, Court, Judge, etc. I once went in to defend my 6th grader, she was accused on putting holes in a cork board (yeah I know a cork board). There I was in front of four teachers and the principal. She was guilty until proven innocent. What BS! It was like the Salem Witch Trials. Apparently she was placing her pencil into prior holes (it was a cork board). I left them a piece of my mind and a short rendition of the constitution. They were unwilling to even consider the possibility that the teacher was mistaken.

 Anyway, criminal charges (a violation) may be better than having to deal with an expensive and emotional draining suspension from school, IMO. Add it up: Dorm, Tuition, loss/waste of time and work. This is definitely not "Priceless."

Remember, Administrative Campus Violations have their own process:

First, an administrative judicial officer hearing. "One on One."
Second, if you would like an appeal to a full hearing, in front of a board. (multiple members)

You can present evidence (witnesses, letters, etc.) at these hearings. You can speak up for yourself, and your conduct.

BTW, at these hearings: NO Lawyers, NO lawyer letters, NO lawyer coaching (at least open and obvious) are allowed.

From the IC book (they are all very similar, I just happen to have their's handy)

 The presence of an attorney and/or written materials submitted by an attorney in representation of his/her student client is prohibited.

What to do? Generally, Do not give up. Defend yourself. Gather evidence. If not of your innocence (maybe you are guilty), then of your character, then of your past success (academically, personally, etc.), teachers/professors can witness to bolster you as an individual, they can also write letters on your behalf.
Take it upon yourself to "Read" your college's rule book on these hearings, fully understand their process/their procedures, and what they allow you.

BTW This is not to be construed as legal advice, every situation is different.

I believe you still have RIGHTS! Any time and any place in the USA. If you are accused of something.

I believe you must Confront your accusers. Confront the accusations. Bring everything into the clear light of day. There is too much to lose to just give up.   

New York DWI Conditional Licenses

The Back to School DWI

It's been a long and hot Ithaca summer. Compared to last year's record coolness, and lack of humidity this summer was brutal. I think we used the old window A/C units only few times last year. In fact, I was bragging to some friends how summer here is so lovely, blah, blah, blah, and then 2010 balanced it all out.

Cornell University and Ithaca College students are back, and the town is buzzing once again. My law practice focuses on DWI/DUI defense so naturally I have represented many students over the years.

One all too common DWI scenario is when a boyfriend and girlfriend have a nice dinner or a small party/get together. They all plan to spend the night, enjoy some drinks, and no one plans on driving. Then later in the evening or in the wee hours of the morning a fight or argument ensues. Maybe a drink spills on a laptop, or the liquor/beer/wine brings out some honest feelings or perspectives. Maybe the conversation becomes heated. Tempers flare and all reason gives way to heated emotion.

Now one party demands that the other leave immediately. Your best friend/lover/partner may even call the police after you leave, and tell them you are driving drunk or that you are driving high. With the flip of a switch you are in DWI hell. This situation is so common in my world that I call it the back to school DWI.

I always tell students that the time to think about a back up plan is not in the heat of the moment. You cannot think clearly with a combination of alcohol, and a polarized emotional state. Do not take any chances with your future. Always have cash and/or a credit card for a cab. Always have a car service number programmed in your cell contacts. Never assume that your friends are always looking out for your best interests. The bottom line is you have to protect yourself.

Understanding the New York DWI PSI (Pre-Sentence Investigation)

There is not much written online concerning the process surrounding New York State's system of determining who receives a sentence of probation for a misdemeanor DWI. It is a mystery to many. I believe as a DWI defense lawyer that uncertainty is a nightmare for those going through this process. In this blog, and the next I hope to explain the procedure in simple terms.

First, the vast majority of DWI cases as well as other criminal cases in this state are negotiated with pleas. The cases that go to hearings and trials have issues that need to be addressed by either Judges and/or Juries.

If the case is resolved with a negotiated plea then the District Attorney may or may not agree (as part of the plea agreement) to waive a PSI (Pre-Sentence Investigation). What that means is that the District Attorney may or may not be seeking a term of Probation as part of the final sentencing of the Court. He may be seeking probation for your DWI because of the results of your drug/alcohol evaluation, the amount of your BAC (Blood Alcohol Concentration) at time of your arrest, a DWI involving (property or people) damages, prior criminal history, prior history of drugs and/or alcohol abuse, your age, and driving history.

For all New York State DWI Misdemeanors Probation Terms are for Three Years.

NOTE: Probation could be terminated early (less than a three year term) by your attorney filing a Motion with the Judge after a period of "good" probation. "Good" meaning a period of time in which you have no problems, no committed offenses, and/or crimes, involving the use of drugs, and/or alcohol.

A PSI is where you are interviewed by the Probation Department (usually of the County's Probation Office in the city in which you live) to determine an appropriate sentence for the crime being pled to. NOTE: If you are from Out of State, Probation can not be recommended by the department because it can not be transferred to another state or country so it unlikely that probation will be part of sentencing. Unfortunately, since the Judge and DA can not give a term of probation they may seek some jail time.

Now the Court (The Judge) can still seek a PSI (Pre-Sentence Investigation) before rendering it's sentence because ultimately the Judge must agree to "the deal" struck between both sides (Counsel for the defendant as well as Counsel for the State of New York). This can add many weeks to the process between making a deal, and having a final resolution of the matter. Sometimes PSIs (and their final report to the Court) can take four to six weeks even though the actual interview usually takes less than an hour.

The way that it works is if after a final disposition (case outcome) by negotiated plea bargain if can go one of two ways:

If the Judge and DA both agree to a CD (Conditional Discharge) then there is NO Probation and no need for a PSI.

OR

If a PSI is ordered by the Judge then Probation department will contact the defendant and set up an interview. This is a "this is your life" type of interview and review. Probation is usually for people who need supervision. Supervision normally entails being watched over with random screenings and tests for the use of drugs and alcohol. It is also likely to include some type of drug counseling/rehab/treatment program and/or mental health counseling.

In my next blog I will detail what goes into a PSI report, and how a probation determination is made.

12 Good Reasons Not to Represent Yourself for a New York DWI

I love practicing law in an area filled with many colleges and universities. Ithaca, NY has Ithaca College and Cornell University and my practice focuses on DWI defense within 50 square miles of Ithaca. Over the years I have represented many students and professors who attended SUNY Binghamton, SUNY Cortland, University of Buffalo, Keuka College, TC3, New York Chiropractic College, Syracuse University, etc. The Finger Lakes region also draws people from all over the country for college events and games, recreational activities, and conferences.

In my view, higher education and drinking seem to go together like spaghetti and meatballs. Like it or not people like to drink. I enjoy drinking. There is no law against drinking and driving just driving while impaired or intoxicated. College can be stressful because thinking is the hardest work there is. Writing voluminous papers (often expounding on topics no one cares about), reading (usually very dry material), and taking exams (that play with your mind) is not always fun times.

Alcohol is the most common, legal, and socially acceptable drug we have. Some of my best college memories involved sharing a drink with my friends and fraternity brothers. After having been through many years of college between my undergraduate B.S. in Human Biology, my Chiropractic education, and then law school I have seen the use and misuse of drugs and alcohol. Mr. Mackie may say "drugs are baddd," but I do not believe that drugs or alcohol are bad. They have their place, much like everything else.

I have had a lot of very smart clients. Some with Masters degrees, and Phds in very hard subject areas. They are as a group highly intelligent, motivated, able to research, understand, and apply knowledge at a level beyond the average person.

Which brings me to my burning question of the day,

Should these People represent themselves? In other words proceed, "pro se"?

I will start out by stating a clear and unequivocal NO! and then give you my twelve reasons.

1. If you are embroiled in something personally it is impossible to remain objective. Distance gives perspective, balance, and non emotional (clear) judgment.

2. Most even very intelligent people do not understand the legal system. Even relatively simple Burdens of proof between license issues (administrative) and criminal cases are different.

3. Many Attorneys in 2010 have to specialize and focus in particular areas of law.

The attorney that understands and spends years practicing primarily divorce law will not know how to handle even a speeding ticket let alone DWI charges.

4. Different areas of the country, state, county, city have local rules and customs.

How a Judge, Court, or Prosecutor proceeds with a DWI case in one part of the state may differ greatly by how they handle it in another part of the state. A DWI in Manhattan uses a different breath machine, the Intoxilyzer 8000 versus the Datamaster and Draeger Alcotest (State Police) in Upstate New York.

5. There are usually collateral issues (ie. license) that need to be addressed.

Dealing with the DMV and ALJs (Administrative Law Judges) at DMV hearings is another potential aspect of DWI cases that is overlooked by lay people.

6. There are often pragmatic issues that need to be thought through. How is your case going to affect an out of state license? What are the potential penalties and future ramifications to your specific job or profession?

7. If your case requires hearings, motions, and a trial what then? Are you certified in Field Sobriety testing? Are you familiar with the forensic science behind Breath testing? Have you ever cross examined a police officer? Have you ever presented evidence? Have you ever picked a jury?

8. Would you know what to look for after you obtain the police reports, breath test documents, and other discovery? Have you read many of these? Do you understand police procedures and protocols? Would you be able to pick out problems with the processing of your case?

9. Would you know what was missing from police reports and other documents?

What's not there is as important as what is there. Can you read in between the lines?

10. Is it possible for you to look over one case (your own) in a vacuum and have any insight, perspective, and/or place it on the spectrum in comparison to any other cases? Do you have a firm grasp of current DWI case law? Can you pick out the legal issues and research them? Can you spot any potential defenses?

10. Seasoned attorneys even hire attorneys to represent them and their families.

What legal background or training do you possess? Have you had any prior experience representing anyone legally?

12. Do you believe that the Government prosecutor will negotiate with you fairly, in good faith, and the same way as if you were represented by an attorney?

Do you think you are on even ground when talking with the district attorney? Does he know more about your situation than you do?

It is often said that people who represent themselves have a fool for a client, don't be foolish get the best lawyer you can afford.

Understanding New York DWI Alcohol Evaluations Part 2

When I practiced as a Chiropractic Physician (before my legal career) I was trained in the use of a psychological manual called the DSM- III (this is now the updated DSM- IV). DSM stands for The Diagnostic and Statistical Manual of Mental Disorders. Think of the DSM as "Abnormal Psychology for Dummies" and you have a better picture. This manual allows doctors, psychologists, social workers, addition specialists and a host of other mental health care servers to quickly look up a set of symptoms, patterns, and other behaviors and make a "potential" diagnosis or diagnoses.

As a doctor I needed to differentiate (and sometimes place a rule out diagnosis) between physical illness and psychological illness. Oftentimes patients would have a layer of psychological problems/issues aside from and in addition to their disc or nerve or muscle injury. Now the reason I bring up and explain all of this is because this manual is the "go to" guide for evaluators. As a DWI defense lawyer the manual has new significance for me and my clients.

The manual describes alcohol abuse as ANY "harmful" use of alcohol. Harmful use of alcohol can be further described as any use that causes physical and/or mental damage. We all know that alcohol by it's very nature causes brain cells to die (alcohol blocks oxygen from the brain) so an abuse diagnosis is a very common one.

Legally, Alcohol abuse merely requires education. This can often be in the form of New York State's DMV 7 week Drinking Driver Program (DDP). The Court can force compliance with treatment, rehabilitation, and education related to any plea and/or conviction. In some New York counties this must come before a final case resolution, but in the majority of others it comes as a condition of discharge with the Court (after the final disposition).

The question on everyone's mind is so where is the line between alcohol/drug "abuse" and alcohol/drug "dependence"?

Well generally the following are some of the behaviors that those dependent on alcohol may display:

1. Drinking only one type of alcoholic beverage or preferring one brand.

2. Only going to events, get togethers, and parties that serve alcohol.

3. Being able to drink more and more over time by increasing their tolerance to alcohol.

So far these first three sound like my college days or the behavior patterns of many of us, but please read on,

4. Making a decision to quit drinking and then feeling compelled to drink.

5. Drinking to help a hangover (after a night of intense drinking).

6. A compulsion to drink (feeling you have to drink).

7. Getting shaky and feeling ill if you do not drink (alcohol withdrawl symptoms).

If you become DEPENDENT on alcohol then you should seek help. These last 4 critieria indicate people that have a problem with alcohol.

If we look at what the DSM-IV states we find the following:

If you have (display) 3 of the following 7 symptoms (over the course of a year) you are classified as alcohol dependent. By the way, Alcohol "dependent" is a nice way of saying you have "alcoholism."

-You Neglect activities (giving up on your job, social, and joyful pursuits) because of alcohol,

-You drink Excessively (large quantities over long time periods) beginning drinking early to late,

-You Can not Control your drinking or cut back on drinking,

-You Keep drinking even though it is affecting you mentally, physically, and socially,

-You spend a large majority of time in activities that involve drinking alcohol,

-You get nausea, shakiness, anxiety, and sweating if you do not drink,

-You can really put it away (you have a very high tolerance).

My own personal opinion from helping thousands of people as both a Chiropractor, and as an attorney is those people with drug/alcohol problems usually know it. If they do not deal with it early and own up to it they will eventually be forced by the Court/Legal System to confront their issue with more pain and cost to them and their families in the long run.

To me there is nothing sadder than watching someone throw away their life, and their potential as human beings away due to misuse of drugs or alcohol.

Understanding New York DWI Mandatory Alcohol Evaluations: Part I

In November 2006 the New York State legislature stated that ALL alcohol evaluations and screenings for DWI cases must be performed by OASAS certified evaluators. OASAS stands for Office of Alcohol and Substance Abuse Services. You can google OASAS to find a certified evaluator and/or treatment provider in your county. Their website is very informative, and fairly easy to navigate.

Legally you must have a "screening" for alcohol abuse/dependency within 30 days of your initial appearance if you had a BAC (blood alcohol concentration) of .12 or higher on your chemical breath test. A screening is merely a written test, it could even be a true/false test.

The next step up in the process so to speak is an "evaluation" for alcohol abuse/dependency within 30 days of the initial appearance if you had a BAC (blood alcohol concentration) of .15 or higher on your chemical breath test. Some evaluators take one long session to perform an evaluation, while some could take up to four sessions to make an evaluation. Cost of these sessions runs about $80 to $90 per session. So one long eval might cost around $175 or four might cost up to $400. An evaluation is an "interview" with a counselor, and could (may or may not depending upon the evaluator) include a urine screen (NOTE: urine tests check for specific drugs while urine screens are general) for drugs. It is also common for the counselor to obtain "collaterals" from you. A collateral is contact information about people who know you and have seen your drinking. These people may or may not be contacted to confirm what you tell the evaluator. The theory is that people with drug/alcohol problems lie, and therefore these collateral sources would be a potential barometer of your truthfulness and/or sobriety.

The next step for the evaluator is to determine whether you are an alcohol/drug abuser and have an abuse diagnosis or you are chemical (alcohol/drug) dependent. This is a critical determination, and should never be taken lightly by anyone.

My problem (I have a great many issues with the process) with these evaluations is that they can be highly subjective. The evaluators opinions carry a lot of weight for the Court as well as the prosecutor and under the circumstances of an interview or interviews they (the evaluators) may not get the full ie. complete picture. I had one client who went to an evaluation and the evaluator decided on a year's worth of treatment for dependency because the client stated he drank more than 5 drinks at one time. BTW 5 drinks for a man or 4 drinks for a woman at one time is classified as a binge drinker. BINGE is BAD in the world of evals. Imagine if you will a year's worth of 2 to 3 times a week standing up and saying, "hello, my name is Bob and I'm an alcoholic," and you may begin to see the grim picture if you are truly a person without a problem. These sessions would be costly in terms of time and money but more than that unjust in my opinion.

In my next blog I'll discuss the differences between how counselors make an abuse diagnosis versus a dependency diagnosis in more detail.

The One Opinion DWI State

Living in the land of: "Ignorance is Bliss" and "What you don't know won't hurt ya." The problem with attending Forensic Science DUI conferences is that you can no longer be a mushroom in the dark. Choosing to remain silent is difficult. So enough beating around the bush...

New York State just takes one breath sample. It's called "replicate" testing. They (the police) Test one sample twice versus the industry accepted norm of "duplicate" testing whereby they take two separate samples. Many other states do duplicate sampling. Because CSI fans, having two separate and distinct samples (within .02 of each other) assures greater accuracy of the procedures.

Imagine for a moment going to the doctor, and getting a high blood pressure reading on his machine. The doctor makes a hypertensive diagnosis based solely upon the one test, and prescribes medication. How about one better, have a blood test for HIV and you are told it is positive. Sorry no second opinions for you, you just have to live with those results.

Well having a breath machine spit out a number is scary stuff. The machine is an unsworn trial witness. Scarier still is the fact that for the test results to even approach any accuracy the machine operator needs to follow the proper procedures. Couple to that fact that machine breath testing of alcohol ASSUMES: an average body temperature, an average metabolism, an average lung capacity, your body is done absorbing alcohol, and you are healthy we have all the ingredients of an inaccurate test.

An inaccurate test is bad enough but when you only get one opinion (from one test sample) it makes that test critical to your guilt or innocence of DWI "per se" (based on the test). Errors in breath testing generally come from three different areas:

1. Machine errors

2. Operator errors

3. Subject errors

Looking at each of these areas in detail is crucial to mounting an effective DWI defense. Recently, I had a case where the chemicals used in testing were expired prior to doing the test. Technically, the chemicals have a certified expiration date from the NYS Police crime lab but more importantly is that that is a "shelf" life (date) for the chemicals. Once the chemicals are put into use for testing on the machine they can only be used for 60 days ("use" life) from the date of first use. So checking chemical logs (the police must keep weekly logs of the chemicals) against the certified expiration dates is important.

The New York DWI is a Two Headed Monster

In New York State if someone does (as in takes) the breath test, more accurately known as the "chemical" test back at the station then they will be charged with two counts of DWI.

1. DWI Common Law VTL 1192 (3): The government must prove (beyond a reasonable doubt) that you (the operator) were incapable (to a substantial extent) of operating the automobile both mentally and physically as a reasonably prudent driver. This usually is through the stop officer's (the arresting officer) testimony concerning your driving, behavior, appearance, testing, odor, etc. In other words, his "subjective" opinion.

2. DWI Per Se VTL 1192 (2) A BAC (Blood Alcohol Concentration) of .08 or higher or Aggravated DWI Per Se VTL 1192 (2) (a) A BAC of .18 or higher. The government needs to prove (beyond a reasonable doubt) that the breath test was given within 2 hours of your arrest, was properly administered, by a currently licensed BTO (Breath Test Operator), using properly mixed chemicals, with a calibrated and maintained breath machine. This of course is an indirect measurement of blood alcohol via a breath measurement.

The two most common machines are the Datamaster DMT (used by town, village, and city police depts.) and the Draeger Alcotest (used primarily by the N.Y. State Police). These machines are accepted by the Courts as approved for BAC testing.

There are various ways to attack both the DWI counts but remember that if you took the test it will need to be dealt with and can not be overlooked by your attorney. The per se count becomes the primary target because it is a number that the prosecution will mention again and again.

I believe that a shotgun approach to arguing that all breath testing is inaccurate and unreliable (fraught with error) will usually fall on deaf ears. A focused and detailed strategy is the most effective way to defeat each count.

Depending upon the specific facts of each DWI case arguments can be waged against:

1. Whether the procedures and protocol of breath testing were adhered to?

2. Whether the machines were calibrated in a timely manner?

3. Whether the machine in question had any recent repairs or issues?

4. Whether the chemicals were properly mixed and/or expired (out of date)?

So records need to be examined carefully and potentially subpoenas must be issued against the police to get ALL the machine records. To get police records your attorney is going to need to get Judicial Subpoenas (issued and approved through a Judge). With a lot of work often the ugly truth comes out, and the breath test's validity becomes an issue of doubt.

In recent cases, I found that the State Police had written in the wrong chemical expiration date. The chemicals were expired days before my client's breath test. After I filed my motions the Judge was compelled to throw out the test, and the prosecution's case along with it. In another case the machine had frequent break downs, and parts replaced concerning the same issue, the machine would not accept a breath sample. My client was charged with a refusal because the police said she wasn't trying (blowing) hard enough. That case was also thrown out after I subpoenaed all the machine records, and brought to light the machine's problems.

Nothing of any value is easy, cheap, or speedy. That first case went to multiple hearings and motions. My client was relieved when the nightmare was over but during the process had many uneasy days and nights. To me the DWI is a two headed monster with one head uglier than the other.

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

Out of State Licenses and NYS DWI

As is often the case with students attending Cornell University, Ithaca College, or SUNY Binghamton I have clients with driver's licenses from many different states, and sometimes even different countries. With criminal charges pending, often a DWI, wasting time by waiting for things to improve on their own accord is futile.

There are unique and collateral issues that need to be dealt with early in the majority of situations. For instance, if someone is from New Jersey and holds a NJ license, and now is a student residing in New York State, and if their future plans include staying in NYS for a number of years then why are they maintaining a NJ driver's license? Is it in there best interests, financially and functionally to maintain their NJ driver's license? These issues may not be as pressing until I tell them that because they hold a NJ driver's license their NYS DWI conviction is going to cost them $1000/year for three years ($3,000 in total) in NJ, and then another $250/year for three years in NYS. In addition, NJ will suspend their driving privileges for 210 days (with NO conditional or restricted license privileges).

So waiting to hire a lawyer is not a good idea. In fact hiring a lawyer not conversant in how a DWI/DUI conviction can impact your state's driving privileges is a bad idea.

Any lawyer can do any type of legal matter. BUT will they do a good job is another story. Will they be thorough? Will they understand the collateral consequences? Just today I got an email:

"First and foremost, I'd like to say that ive gotten more information from you on your website than i did from my own lawyer! My question is...."

So my advice:

Always Hire the best Bankruptcy lawyer for your bankruptcy!

Always Hire the best family lawyer for your divorce!

Always Hire the best estate lawyer for your will and trust!

Always Hire the best business lawyer for your incorporation!

Always Hire the best real estate lawyer for your house closing or sale!

Having a generalist lawyer handle your case "may be" like having your family doctor (GP) handle a foot problem (instead of a podiatrist) or

handle a back problem (instead of a Chiropractor or an orthopedic surgeon) or

handle a skin problem (instead of a dermatologist) or

handle a psychological problem (instead of a psychologist)

Don't tell me but he's been practicing for 25, 30, or 35 years so he knows what he's doing. Remember the world is dynamic. The laws are constantly changing, the days of the generalist are over, and staying current and focused is the best strategy for long term success!

Dividing and Conquering the DWI

I am a fan of military movies. When I was young I loved to watch John Wayne, Clint Eastwood, and Charles Bronson. They were in my mind men's men. They were walking, talking confident leaders. In my memory, forever type cast as strong, wise, and tough conquerers. They fought for justice, freedom, and the pursuit of happiness.

When I think of my own career arcs, I have always fought or placed myself up against the establishment. When I was a Chiropractor, it was giving my patients the choice of using holistic and natural treatments rather than blindly following one size fits all modern-scientific medical dogma. At other times it was arguing with an insurance company who refused to pay for a procedure or denied benefits. As a lawyer practicing civil law, it was fighting hospitals, medical doctors, and their insurance companies.

Today, practicing DWI defense law, it is the New York State government, law enforcement, and their lawyers (the prosecutors). I am the check to the system. Often I work to set an imbalance. In other words, to create a more level playing field.

One basic premise behind DWI defense is that a case can be won if it is carefully and completely broken down into little pieces. The military theory behind it is called, "Defeat in Detail." You can defeat an enemy more easily by dividing their forces. As Lincoln said, "United we stand, divided we fall." Sun Tzu, said in classic military text, The Art of War, "Fracture the whole."

Any case becomes a story. Every story has chapters. Each chapter has a goal and a purpose. The story is usually of a person at the center of a police investigation.

While they (the government lawyers) are focusing on patterns and signs that focus on drunkenness. I break down the story into the good driving, normal walking, normal talking, normal thinking, normal responding, normal answering, and normal behavior into little bites of tailored information. Each chapter of my story highlights function, and normality. My story focuses on the missing pieces. Their stories embody red, bloodshot, watery eyes, slurred speech, and the strong odor of alcohol. Painting a picture of the fall down drunk. I am looking for all the other reasons (the reasonable doubt) for those same observations.

What is observed are always surface signs. Eyes can look watery at 1:30AM for many reasons, none having to do with the consumption of alcohol. The majority of people are not at their best in the middle of night, and the early morning hours.

So many questions need to be asked. How long have they been studying? How many hours sleep have you had the night before? What is the state of their health? What effect do red and blue flashing lights play in your performance? Or a huge flashlight thrust in your face? Were you nervous, upset, and scared? The term "performance anxiety" ring a bell. How well would anyone do at anything if they forced, under the gun so to speak to perform?

It's all how you look at it. It's the focus. It's the breakdown. It's the details. Make a list right now (while it is still fresh) of everything you did that was good, that was right, that was normal

on the night of your arrest. You will be surprised at how much of what you remember was normal.