Ithaca Lawyer Defending the NY DWI with The Police Alphabet Test

Alphabet test, OMG, from joyreactor.com

Sometimes I muse it might be fun being a cop. Why you ask? 

1. They get to command, direct, and instruct people as part of their investigative power. 

2. They get to make shit up. They can lie, and they can use their imaginations to get to the truth.

When it comes to DWI investigations they get to make up their own tests. These are called the 

NON-standardized field sobriety tests because they have NO standards. There is no procedure, instruction, scoring, or method by which we can all agree that someone passes or fails. It is all up to the individual police officer or trooper to decide. How fun is that?

One such test they love to give is the Alphabet test. I have even seen officers give this to foreigners (people whose 2nd language is English). They usually begin by asking people what grade they completed and if they understand English. 

Ithaca Police or IPD, from centralny.wnn.com

1. Alphabet must be said not sing songed. 

The police do not want to hear you say the alphabet as you learned it as a child. This is too easy.

2. They will pick a specific letter to start and end with. This is usually not letter "a" to letter "z." Again way too easy. They will usually pick letter "j" to letter "u."

3. They will want you to begin when they instruct you to.

The alphabet is one of those non-standardized tests that I like for a number of reasons.

1. Even drunk (impaired) people can remember their alphabet. It is so ingrained in the brain.

2. You can usually speak the pronounce the letters articulately. The officer can generally understand you because they know what comes next and know the sequence.

3. It can demonstrate your memory, your alertness, and your cognitive abilities. 

4. Your performance can attack police testimony that your speech was slurred or that you were incoherent.

All in all, I prefer the police alphabet test over many of the other "made up" sobriety tests. 

Larry Newman, D.C., Esq.

newman.lawrence@gmail.com

 607-229-5184

http://www.ithacadwi.com 

The DWI Defense Challenge, It's not about the truth

I just came back from two back to back Syracuse Law seminars. On Friday, Oct. 23, I went to a New York State Bar seminar on Expert Witness testimony, and on Saturday, Oct. 24, a New York State Association of Criminal Defense Lawyers event at Syracuse Law school. That seminar had criminal defense lawyers from around the state speaking on a multitude of topics, one of which is my favorite, DWI defense.

I learn something new at each, and every seminar I attend. In fact at this seminar even the speakers hung around to learn from the other speakers. The best lawyers know it is never over. I will be the first to tell you that law is a practice. You work and grow from each case. No two cases are exactly the same. One of the speakers at S.U. is a favorite of mine, Ray Kelly. Ray is one of the most passionate and inspired advocates I have ever met. He reminds me and every other defense lawyer why what we do and how we do what we do is so important.

We represent fellow human beings. Ray takes that Oath to uphold the rights of others very seriously as do I. We have a duty of constant vigilance to not allow illegally sufficient evidence or evidence that has been obtained in a unconstitutional matter be used against out client.

The following synopsis paraphrased and shortened comes from Justice White's opinion in Wade, 388 U.S. at 256. We (criminal defense lawyers) have a duty to protect and defend. I have no obligation to ascertain or to present the truth. I need present nothing, even if I know what the truth is. If I can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be my normal course of action. My interest in not convicting the innocent allows me to put the State to it's proof, put them in their worst light regardless of what I think or know to be the truth. In fact, my duty has little relation to the search for truth.

I must continue my commitment to POlice the POlice, challenge the prosecution, and to make sure that no person accused of a crime stands alone against the government.

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.