The Picky Lawyer, the Lazy Eye, & The DWI Refusal Case

I guess my picky personality doesn't always benefit me in my personal life ie. marriage. Who wants anyone being right all the time. Yeah I won the fight but lost the war. My wife told me early in our marriage don't be an attorney with me, She is a wise woman.

Where being picky does serves me is in my role as a defense lawyer. Because I can be a consummate PITA (pain in the a---). I look for holes, gaps, problems, inconsistencies, and issues with what people may do or what they say.

The Refusal Case is Purely an Opinion Case

Police sometimes overreach in what they report. This is a grand understatement. In a DWI refusal case their OPINION evidence is what can convict my clients. The attack on their DWI investigation (their opinion) is on multiple levels.

ONLY 3

The three main tests, the ONLY STANDARDIZED FIELD SOBRIETY tests are:

1. walk and turn
2. stand on one leg
3. HGN (horizontal gaze nystagmus)

What is Standardized?

Standardized means they must be given, instructed, demonstrated, and scored in a specific way to be valid, and accurate. Every officer, trooper, and deputy must follow protocols. They can't just make stuff up.

So anything I can do to pick apart their methods, their testing, and their investigation is open game. I am a stickler in keeping them honest.

The Lazy Eye

I recently had a lazy eye case DWI Case. My client informed the officer multiple times he had a lazy eye. Naturally this should have placed the officer on guard or at least influenced him to re-think giving the HGN test.

The Police Manual
Procedures & Protocols

The HGN relies upon a normal, healthy, and fully functioning pair of eyes. In fact the manual, the U.S. Department of Transportation Standardized Manual (DWI Detection and Standardized Field Sobriety Testing) states that before giving this test they should ask questions about eye disorders or problems.
People that have issues with their eye anatomy, eye physiology, or have an eye disease may not be the best candidate for this particular test.

They (the police) should check for equal tracking of the eyes. These are police NOT doctors, optometrists, or optholmologists.

What if 3 Becomes Only One or Two?

So the work up of this case included lots of cross examination in this area. Think about it, 3 main tests, what if I topple one of the three? Then I am left with 2, two that are dependent on muscle coordination and balance. How many of us have two left feet? How many of us can perform physically under pressure at the roadside? These are the main base of their opinion, their foundation for proving not just impairment BUT intoxication.

It's all a Matter of Degree


In NYS what is the difference between impairment and intoxication? 


Under NYS law in BAC terms, .08 is Intoxication and .06 to .07 is a presumption of impairment.
But if we have no BAC, then what? Purely OPINION! Purely words, the spoken word of the cops.

THE BIG WIN

Intoxication is a Criminal misdemeanor   NYS DWI VTL 1192 (3)
Impairment is a traffic offense                  NYS DWAI VTL 1192 (1)

Bottom line = You are a criminal with a criminal conviction.

The How to "Nuts and Bolts" of Being Picky

Here is my work up of this lazy eye section (not all hashed out but enough to give you an idea of my thinking) of cross of the cop. I love when the police get into anatomy, science, and biology. My past experience and training as a Chiropractic Physician come into play with many DWI and personal injury cases. You want to diagnosis conditions get a degree, lots of training, pass some boards, and get a license otherwise go home.

MY Lazy Eye Cross Outline (a work in progress):

In your training/ certification

You asked him if he has any medical condition

Eye condition

HGN test

Did you follow all the pre-procedures bf the HGN

Chk for equal pupil size

Resting nystagmus

Equal tracking (following an object together)

Ths is the chk for medical impairment

Medical disorders

In your report 

You said he didn’t have a lazy eye (you can't always see a lazy eye)

(lazy eye is really a lazy brain- the eye and the brain are not working together properly)

After he stated it to you twice

You were trained in dx of lazy eye (of course not, he is a cop not a doctor)

Can you always see a lazy eye (he thought he could)

Isn’t it a visual disturbance problem

A lazy eye is a brain disorder

The eye can appear normal (he didn't know this or reflect this in his report) 

Are you aware of the types of lazy eye

In your training/certification

Lazy Eye and Strabismus are not the same condition.

a person who has a crossed or turned eye (strabismus) has a "lazy eye,"

but lazy eye (amblyopia) and strabismus are not the same condition.

Amblyopia does not equal a visual/apparent misalignment

strabismus can cause amblyopia.

Amblyopia can result from a constant unilateral strabismus (i.e., either the right or left eye turns all of the time).

While a large eye turn or deviation (strabismus) is easily spotted by the layman, amblyopia without strabismus or associated with a small deviation is usually not noticed by parents or pediatricians.

In manual/training

If the eyes do not track together   it may indicate an underlying medical disorder

This underlying disorder can cause the nystagmus that is present

If the eyes are unequal in size 

Where Do We Go From Here?

It (the cross outline) goes on past here but you get the idea. A specific focused attack upon their faulty investigation, and it's issues (weaknesses) can yield a weak intoxication opinion overall. If the driving is terrible I have more to overcome but with fairly good driving or NO bad driving well I am getting there.

The drop of water upon the great rock may mean nothing. But what if I keep dropping water over and over, it will eventually wear down the rock. Little by little things are won or things are lost. There are few home runs in criminal defense law and most especially DWI refusal cases. 

Cumulative Small Things Add UP +++ Big Time

IMHO  It is all base hits, it is the field game, the running game, a matter of yards or sometimes even feet to win at this game. 

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Come Join Us - Space is Still Available for the Arts, Culture & The Law Conference and Cultural Property Law

The second annual Arts, Culture, and the Law conference will take place June 28, 2012 at the University of New Hampshire School of Law in Concord, NH.  This was a big event last year, attended by artists, gallery owners, museum professionals, archaeologists, librarians, lawyers, and many others. Many are already registered for this year's conference, but scholarships and some space for late registrants remain.  You can register here.

Panels cover copyright, alternative dispute resolution, volunteer issues, and more.  Sessions I will be presenting focus on the legal risks of collecting undocumented objects and cultural institution disaster preparedness. For more information about this event, click here.

Next week then begins an intensive two week Cultural Property Law course taught in Concord, NH (one hour north of Boston), part of Plymouth State University's heritage studies program.  This course begins July 3 and ends July 14 with a field trip to Boston's Museum of Fine Arts.

The class examines the international, national, and state legal frameworks for the protection and movement of cultural property.  Topics for discussion include the 1954 Hague Convention, the 1970 UNESCO Convention, the ICOM Code of Ethics, the National Stolen Property Act, and the Cultural Property Implementation Act. The course also introduces students to important national heritage laws such as the Archaeological Resources Protection Act and the rules governing shipwrecks. State statutes and the common law regulating cultural property are also reviewed.

There is still space left.  For more information or to register, contact Professor Stacey Yap at (603) 535-2333 or e-mail staceyy@plymouth.edu.

CONTACT: http://www.culturalheritagelawyer.com/
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

The Little Known Right to an Adjournment

Sometimes we take so many things for granted. I believe as an attorney the right to an adjournment is one of those things. It is often overlooked as a right. Everyone knows the right to free speech, adjournment not so much. It has a great many uses, and it has had it's fair share of abuses.

First, what is an adjournment? It's a fancy way of saying delay.

When you or I request an adjournment we are asking that the court hold off, and suspend, the matter's progression until a later time. The matter is usually a case. It could be a civil or a criminal case. Everything legal works on set timelines.

Moving Forward to a Conclusion

In civil litigation (lawsuits) we are seeking money damages and in criminal proceedings the government is seeking justice (criminal proceedings) to render punishment. Everyone is moving to a conclusion. Either guilty or not guilty of the charges or a dismissal of the charges or an award of money.

Example One: THE ACD

With a Judge's granting of an adjournment in contemplation of dismissal this is a conditional period of a set amount of time (a set delay). Often this is a one year delay of the proceedings to see if someone re-offends or remains on good behavior. If they do not (get re-arrested) the matter (the government's proceeding on the charges) is dismissed.

Example Two: The Request to Gather Information/ Evidence / Witnesses

Sometimes to wage the best defense of a case an attorney will request a delay to find proof, locate and subpoena witnesses, and/or allow their client to be evaluated mentally or for chemical dependency.

Example Three: The Client Request to Find or Speak with an Attorney

I have seen Judges allow requested delays to either find representation, or at least talk with counsel. I have even seen allowances for lengthly delays by town and village justices to allow people to work and save money to pay for Felony cases or to pay fines or DMV fees or to perform community service or to enter drug/alcohol rehabilitation.

Caveats (things to watch out for): always have a reason (s) when and if requesting anything.
Reasonable people have reasons for requesting things. These reasons must be valid, rational, and logical to be believed (have integrity). BS reasons for adjourning legal matters are denied.

Remember that time can have great value if used properly. Allowing people more time to get their "houses in order" helps everyone.

THE BOTTOM LINE: Using time to your advantage, that is what makes the right to adjournment a powerful tool.

The Law Offices of Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5185

My legal practice focuses on personal injury and DWI defense defense within the Finger Lakes area, basically anything that involves gas powered vehicles (cars, trucks, boats, snowmobiles) and/or drugs.

http://www.ithacainjurylawyer.com

http://www.ithacadwi.com

Montour Falls Village Court: Quaint, Charming, and Timeless

As I make my summer Court rounds I love to watch the Finger Lakes come alive with color. The sky, the flowers, and the foliage in June and July are special here not only for the weather but for the dramatic changes in scenery.  I was in Montour Falls last week for a pre-trial conference on a DWI case, and this week for an AUO 3rd (aggravated unlicensed operation) with traffic violations.

Watkins Glen and Seneca Lake lie close by, and this is area heavily traveled by tourists coming to the area for wineries, historic buildings, comfy Bed & Breakfasts, and festivals galore. There are a ton of little hole in the wall diners (more like dinettes). The Blue Ribbon Diner on Route 14 recently added a wood burning Pizza oven, that's a big news around these parts. It doesn't look like much from the outside but don't be fooled.

Montour Falls Court 

Montour Falls Court is a Schulyer County Municipal (Local) Court. Mainly this Court is is sessions on Monday afternoons, Court starts at 2:00pm. There is a sign in sheet out on a little table around 1:30pm.

The ADA is not here every week, and they hold pre-trial conferences on specific dates. It is also referred to as the Town or Village Court. Schulyer Hospital is also located in Montour Falls at 220 Steuben Street.

The Montour Falls Falls

This is Common, the All in One Building
Town Court
Town Offices
Village Court
Village Offices

http://villageofmontourfalls.com/village-court/

Law Offices of Lawrence (Larry) Newman

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5185

My legal practice focuses on personal injury and DWI defense defense within the Finger Lakes area, basically anything that involves gas powered vehicles (cars, trucks, boats, snowmobiles) and/or drugs.

http://www.ithacainjurylawyer.com
http://www.ithacadwi.com

CARS: Cayuga Addiction Recovery Services Offers "Treatment on Demand" in Ithaca, NY

"On Demand" kinda says it all, doesn't it? I love my videos and TV on demand so why not other services.

As an Ithaca DWI defense lawyer I am continually on the look out for valuable services that are local. My clients with dependency issues often need resources that are geographically easy to access. Within our 10 miles square locality is often helpful but also merely one consideration. Sometimes a more important aspect of service is the speed at which I can get my clients what they need. If they are in immediate need, waiting is NOT always an option.

1. They may need an immediate chemical assessment/evaluation.
2. They may need to submit to immediate chemical treatment/rehabilitation.
3. They may need a referral into a long term or short term (inpatient or outpatient) program.

This has been a problem within Tompkins County because getting an appointment with local providers was a challenge. Most recently CARS (Cayuga Addiction Recovery Services) has starting offering Same Day- ON DEMAND Services.

This was posted on the door at the Ithaca City Courthouse:

Cayuga Addiction Recovery Services Outpatient Clinic

TREATMENT ON DEMAND

Same day chemical abuse assessment services as available

CARS Treatment on Demand allows a person to contact CARS and be seen the same day for an appointment for an immediate chemical abuse (drug/alcohol) and Impaired driver assessment

Research (best practices) has proven that that if a person can be seen immediately for chemical treatment services it increases their success rate in beginning and remaining in treatment.

CARS offers dedicated assessment/evaluation at the CARS Outpatient Clinic located at 334 West State Street, Ithaca, NY.

IN SHORT:

They are offering brief or comprehensive SAME DAY assessments. They are also offering immediate treatment and/or plans of treatment to begin ASAP or persons to be referred for further care based upon need.

They take WALK INS or call 607-273-5500 x 14

Contact Al Alfaro, LMSW, CASAC
Clinical Supervisor

Cell: 607-351-0680

http://www.carsny.org

If someone is in need of these types of services it's nice to know they are here locally and readily available. I like that they are extremely service oriented.

My plug: CARS has helped a lot of my clients over the years deal with their addictions. This was even before they became ON DEMAND. For those with some very serious issues I have seen CARS help them help themselves.

My disclaimer: I have met people who did not like CARS. No one place is for everything or everyone, nothing is for everyone. Just as some people living and working in this isolated fish bowl would prefer a more anonymous place to get evaluated and treated. Yes, Ithaca is loved and hated for the same reasons. It is a small town where everyone knows your business.

In the same respect, I am not the right or perfect attorney for everyone. Some people need to find the right fit or a place they feel most comfortable. Do not discount the idea or concept of help wherever it may lie, and remember it can come in many forms or formats.

There are many counselors, programs, and places for people to go seek help. I urge those with problems to not give up on themselves. I believe that working on yourself (and your program of choice) to be healthy is always a lifetime project without end.

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

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

http://www.ithacadwi.com

If the Cop is a "No Show" is the Speeding Ticket Dismissed?

Photo Courtesy of Corning City Hall
Can you tell the difference between a NYS Trooper and NYS Deputy?

Most people believe that the cops (officers, troopers, deputies) show up to Ithaca Court or hearings regularly. In most non-city Courts (town and village) the cops are usually housed in a separate physical facility.

In Tompkins County, the State Troopers are in Trooper Barracks, the County Deputies are located within the County Jail complex, and police officers have various locations depending on their jurisdiction. In many New York State City Courts the police are in the same or an attached building. This is how it is in Ithaca City Court. Ithaca City Police and the Ithaca City Court are together in one big building on Clinton Street.

Where are the Police?

I am usually asked by my clients, is the cop going to be there? Most people do not want to face their accusers. The physical face to face confrontation is very uncomfortable. While many like to believe that the cops live in or by the Courts, they usually only submit their paperwork to the Courts. This usually occurs via computer these days. After everything is written up, reviewed, and completed it is sent in for Court processing.

Unfortunately or fortunately they do not show up to anything Court related unless they are either subpoenaed (under penalty) to be there to testify against you by the prosecutor (assistant district attorney) OR they are there of their own free will (usually in a DMV administrative hearings on driver license matters).

The TRIAL of a Traffic Violation (ie . speeding) Case

Your case goes through a process of steps. These can occur over a period of days, weeks, or months.

STEP ONE 

Procedurally in a traffic violation matter, the initial (first) appearance (aka Arraignment) is where you place a plea of guilty or not guilty on the record with the court. This can be done by mail in these lower level cases. Misdemeanor (criminal) cases generally require your physical appearance in Court. This is because these types of charges can result in a punishment of up to one year in jail.

STEP TWO

The next step is called a PTC (pre-trial conference). This is usually a set specific time (date) when the DA or an ADA (assistant DA) will physically be in Court to settle and/or discuss cases. There may be more than one PTC depending on the case, the evidence, and any information that may help settlement or negotiations. Usually a specific ADA (is assigned) handles each specific Court. In Steuben County, in the Corning City Court they assign the Police Lieutenant to handle (negotiate) traffic matters. This is not typical but important to know.

STEP THREE

If your case cannot be resolved in the pre-trial conferences it must be scheduled by the Judge for a TRIAL. In a traffic case the police are then compelled to be there for trial AND IF they do not show up then you can be an automatic winner. Case is then dismissed by the Court. Depending on the Judge they may wait out the whole Court session (a number of hours) to dismiss the matter or if a City Court case the Judge may only give them 20 or 30 minutes.

PROOF is Always Required

Remember that in a speeding ticket or other traffic violation matter the government's (DA's) main witness against you is the cop. Without a main witness to testify and prove their case, they do not have admissible evidence against you. They can NOT and WILL NOT try you, and find you guilty on the police papers alone (after all this is hearsay evidence).

New York State DMV Hearings versus Traffic Court Trials

In contrast, in DMV driver's license hearings, the Judge can accept hearsay evidence against you or for you. The cops do not have to show to these hearings. The Judge can choose to take all the police reports, and documents into evidence against you. This is because your license to drive is a merely a privilege (not a right) and the Judge (ALJ = administrative law judge) has much more leeway.

So back to the original question, It's as Simple as 1, 2, 3

if the cop, deputy, or trooper is

1. scheduled to be there
2. for your TRIAL and
3. they do NOT show up,

then YOU WIN!  Case Dismissed!


Law Offices of Lawrence (Larry) Newman

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

The picture at the top of this blog comes from the wall of the Corning City Hall.

The Anatomy of Hope and it's Mythos

As a Chiropractic Physician and Attorney I have been fortunate to practice two professions over the course of 26 years in NY, NJ, PA, and FL. I can tell you unequivocally that doctors, lawyers, and clergy are all in the same business. We sell something called, "hope." 


Hope to most people means "that tomorrow is going to be better than today." The answer to that or the path to that goal to be lead by the professional of the law, medicine, or religion. They can somehow help us, counsel us, and guide us to achieve this better future.


First, let's destroy the myths of hope:


1. There is NO "better" future merely a "transformed" future.


Life is always going to be a series of trade offs. There is always a pain with a pleasure and vice versa. People who are single want to be married and sometimes people who are married want to be single. Is one really better than the other? It is all a matter of perspective. 


There is gain and loss with each and every thing. In legal matters involving accusations of wrongdoing, your money, your relationships, your emotions, and your mental state will all go through transformation. What lessons you gain from the experience are up to you. Some lessons in life need repeating, that is neither good nor bad just a truth. That is why some people get involved with the same type of person or relationship over and over. 


If you suffer from a chronic medical problem, the long term healthy solution is usually a lifestyle change not a fast and easy medication or surgery. People go to the doctor expecting them to just fix things. Often the real fix (solution) lies in a personal change. 


2. Nothing is free. Whether it is your health, your liberty, or your sanity.  

There is always a cost to everything. Doctors, lawyers, and clergy want our money but sometimes the most expensive things cost nothing financially. This is because the price of a thing, maybe our freedom can come as a trade of our liberty. Before I go further let me stop, and explain this one.


Freedom is your ability to move about, unrestricted. While liberty is more your ability to do as you please as you move about. This is the real difference between jail and probation. Jail is complete lock down while probation is having someone watching you, checking you, and monitoring your choices.


So having a "choice" of jail or probation is really the lesser or greater of two evils (if you consider punishment evil). These can sometimes be goals for those accused of crimes that they did commit. 
Often county jail is a much better outcome than state prison. Often a conditional discharge is a better outcome than probation. 


The value of what anything costs you in time, money, or emotions is yours to decide. Sometimes you can not place a monetary value on a license, or six months or three years of your life. People need to be reminded that time = money. If something remains open, and is hanging over their head, what is the value of fast closure?


3. Whether you are happy or sad about your transformed future is all based on your expectation. 


If you expected nothing, to get off scott free, then any punishment is bad and you are sad and maybe even mad. Are your goals realistic? Real for your situation? In other words are you thinking, talking, and acting with a reality base? 


Real is based upon the facts of your case. The facts of your background, your history, and the detailed breakdown of your situation yield a foundation grounded in the real. What would be a real outcome in this court with these charges for you? Not for someone else, not somewhere else, but here and now.


Comparing yourself or your situation to a TV police drama or a celebrity in California or a relative five states away is the beginning of doom. This is fantasy thinking. Comparing to something that is in fact incomparable. 


I recently had a client accuse me of taking away her hope. She had continued to drink with the ignition interlock device in her car. Well after a night of hard drinking, she blew a big number on her morning drive to work. Now she was in a real fix. A violation which was bringing her back in front of a conservative Judge.


Her first aggravated DWI resulted in lesser DWI with the minimal punishment now she faced a violation of that CD (conditional discharge). I told her to expect some jail, possibly probation, or a combination. She wanted a "stern" warning. She felt that that was hope. She was hoping for a fantasy. She discharged me, and found another lawyer. I didn't give her BS just a real look at what she should be expecting and facing. 


Hope Made R.E.A.L.


Quite often I am asked for my opinion. I do offer people hope. But it is HOPE that is REAL.


R means Reality


But first it is hope that is grounded and real. Grounded in reality. As a chiropractor, if they were 70 years old, a 100 lbs overweight, and full of arthritis, how real would my hope be if I told them they would be disease free and perfectly straight?


What if I told them they could achieve all of that within six months, and a cost of only $1000? What if I told them they would have to do nothing to help me to help them? 


E means Expectations

I always keep my clients and my past patients expectations in line. What can they or should they reasonably expect at each stage of their process (legal or medical)? Client/patient unhappiness or depression is directly related to their expectation.

A means Alternatives


What are their choices if any? Can they have to pick and decide between things? Empowerment to patients and clients comes from the power to choose. They want to know they can participate in the process and affect the potential outcome. What are their alternatives? Is it time, is it money, is it treatment, is it liberty? 


L means Lessons


If they don't get the lesson, they will be doomed to repeat it. One of my favorite teachers, Dr. John Demartini used to say, "every problem is a lesson and a blessing." Can they see the lesson? Can they interpret the lesson? Can they see the benefits? Every loss has a gain, so what have they gained from the loss? 


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


Doctor of Chiropractic
Attorney and Counselor at Law


504 North Aurora Street
Ithaca, NY 14850


607-229-5184
http://www.ithacadwi.com