Ithaca Cortland Lawyer The DDP week by week: New York Drinking Driver Program 2012

I have had many ADWI, DWI, and DWAI clients over the years take the NYS DMV DDP. In the past I have written about what the program was about, it's goals and purpose. In this blog I hope to be more specific of exactly what the 2012 DDP entails. To get a New York State conditional license after any DW, whether it is a refusal case, or any driving while Intoxicated charge you MUST eventually take the DDP.

Some of what I report on is unique to Tompkins county but most DDP protocols are standardized, and therefore could be applied Statewide.

Total: Seven consecutive weeks, one session per week. Approx. 15 hours

Place: Tompkins County, NY in the Mental Health Building on Green Street, 5th floor, downtown Ithaca.

Time: Tuesday Classes from 6:00 to 7:30PM.

Class session Week 1: 

Sign in, pay (must pay by third session), approx. cost $225 for DDP, Post Revocation Conditional license is approx. $75, fill out forms and releases.

The New York DDP next uses the RIASI test as an assessment tool. RIASI is short for "Research Institute on Addiction Self Inventory." It is a 49 question, 41 true/false and 8 items as to frequency and/or quantity of certain behaviors, it is a 15 minute test, developed in 1997 to predict the likelihood of DDP participants getting another DWI charge. In other words your degree of risk for recidivism.

The New York State Office of Alcoholism and Substance Services (OASAS) has chosen the RIASI test to measure the level of substance abuse and/or the seriousness of the problem within DDP course attendees. Created by Tom Nochajski, Phd. who is an Associate Professor at the Center for Health and Social Research at the University of Buffalo, it is used by New Hampshire, and other states and lies at the core of many DWI programs.

For more information on this matter see the New Hampshire blog here:

http://forcedworship.blogspot.com/2011/07/heres-riasi-test.html

Questions will be somewhat subtle as to the assessment of potential addictive behavior or patterns of substance abuse. The testers call this "covert content items" as they address or ask about hostility/anger, sensation/pleasure seeking, depression/mental illness, and other personality disorders/behaviors instead of direct questions about drinking alcohol, and/or abusing drugs.

NOTE: Three reasons can get you kicked out of DDP = loss of conditional license.

1. don't pay for classes by third class session
2. come to class drunk
3. miss three classes, 3 strike rule

If you miss a class, then that class must be made up in the next DDP go round.

Class Session Week 2:

1980s Film about DUI. Police cadets drive sober and then have drinks. Interaction with fellow classmates in break out groups. Discussion of driver, car, and the environment as to the areas affected by different things/situations/conditions. Discussion of BACs.

Class Session Week 3:

Discussion of the development alcoholism. Factors and characteristics are discussed. Distribution of a workbook called Prime for Life.  Homework given to do chapters in the workbook.

From the Prime for Life website:

http://www.primeforlife.org/homepage.cfm?CFID=768994&CFTOKEN=86054592

PRIME For Life is an alcohol and drug program for people of all ages. It is designed to gently but powerfully challenge common beliefs and attitudes that directly contribute to high-risk alcohol and drug use. The program goals are to reduce the risk for health problems and impairment problems.


Class Session Week 4:

Show and tell: learning about the strengths (%) of alcohol in different size glasses of liquor, wine, beer, cocktails, and what constitutes a drink. Learning the 0-1-2-3- formula for amounts of alcoholic beverages you can drink in a given week, your risk, and how drinking at various levels (amounts) can affect you.

Personal assessments from the workbook on behavior. A movie about the harmful effects of alcohol on the body by Dr. Schneider.

Class Session Week 5

Focus on the dangers of excessive use of alcohol, impaired learning response, and problem drinking.
Alcohol abuse can disrupt higher order cognitive brain mechanisms such as working memory, learning, and decision making.

Class Session Week 6:

Workbook, more discussion of alcoholism, and assignment given to go over your DWI arrest. This is to be shared with the class.

Class Session Week 7:

DWI movie, then lecture, and then one of three envelopes was passed out to the participants:

1. one with a green slip for the return of your license and a letter
OR
2. letter stating classes missed and make up dates
OR
3. letter stating you need further counseling/evaluation

So there you have it, a short synopsis of the NYS DMV DDP.

        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

Ithaca Lawyer New York DWI, Military Service, and The Price of Tea in China

I just fielded a call from someone looking for an out from his DWI. Who isn't?
Sometimes there is a great legal defense, a weak legal defense, little to no defense, ideas and creativity can run the gamut, from the very bad to the very clever and good. Most of the bad ideas are pretty memorable.

In this case he now wanted to join the Army. He figured if he was going into the military, that they (the District Attorney and the Judge) would cut him a break. As in, drop the charges.

Representation of Service People: Army, Air Force, Marines, Navy

Now I have represented many people who were either in the armed services or just recently out. Sometimes the fact that they have served honorably, are currently enlisted, or about to be deployed can make a difference with DWI (criminal charges) pending. I learned a lot about the Army (and other branches) representing these men and women.

What I soon discovered was shocking. I learned the full consequences of a DWI to a Sgt. or other person of higher rank. They could be administratively discharged, lose privileges, reduction of rank, pay (grade) cuts, loss of benefits, loss of security privileges/clearance, and other mandated punishments (exclusive to the military) called NJP (Non-Judicial Punishment/ Article 15). BTW Article 15 punishment can come even before you are found guilty under civilian law.

Members of the Military Face "THREE" Areas of Punishment

1. DMV license issues (in NYS and maybe even out of state)
2. Criminal Charges in NYS State Court
3. Military Non-Judicial Punishment (beyond civilan punishments/fines/fees)  

This comes from the Uniform Code of Military Justice. 

Two key points for service people: 

1. You can be punished in both military and civilian Courts for the same charges.
This is not double jeopardy.

2. The military standard for intoxication DWI/DUI is way easier to prove than the civilian standard. Just like Canada, intoxication vs. impairment or levels of BACs are of little consequence. Impaired = intoxicated driving (operation) AND is ANY amount sufficient to affect the rational exercise of your mental and physical abilities. 

Just last year I had an enlisted officer that I was able to negotiate a equity deal for on a DWI charge. He was just about to be deployed. He also had an exemplary past record of impeccable service coupled with a forthcoming tour overseas. These things tipped the scales of justice to his benefit. Not every case or every prosecutor or every judge will even entertain that argument but some may.

But in the case above, my phone caller was looking to game the system, he was looking to now go to a recruitment office and try and sign up. This was Post- DWI arrest not Pre - DWI arrest.

The Price of Tea in China

I told him, "what does this have  to do with the price of tea in China?" This old saying basically implies that his desire to now escape to military service (or join the circus) has nothing to do with his pending DWI charges. If this was the case then lots of people may want to join, enlist, or just plain take jobs in other states and say, "hey I have a job in California." I had a girl once tell a judge that she recently signed a lease for an apartment in North Carolina. He said, "so what, you have criminal charges pending in NYS."

Maybe my caller saw an old war movie where they offered convicted criminals a chance to either go to jail or go fight in a war? Either way, this is not his situation or a very good defense for his DWI.



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

Who's judging New Hampshire's judges?

MY TURN

Conduct committee takes job seriously

By Dr. Robert O. Wilson / For the Monitor

August 26, 2012

LINK

As chairman of the New Hampshire Judicial Conduct Committee, it does not surprise me that there is public confusion over the role of the House Committee for Redress of Grievances as it may relate to judicial matters.
The New Hampshire Constitution, while establishing the three branches of government - executive, legislative, and judicial - heavily weighted the scope of governance to the side of the Legislature. It established two articles for the purpose of accountability for "the wrongs that the people suffer" at the hands of government.
Dormant for many years, the Committee for Redress of Grievances was re-established in 2011. Many of its hearings have dealt with citizens unhappy with judicial decisions and the judiciary in general. Sometimes, with the encouragement of legislators, aggrieved former litigants tell their story to the committee, but the committee goes no further to investigate a claim of judicial malfeasance. In some instances, the committee votes overwhelmingly in favor of the grievant and threatens to bring a bill to the House to impeach the judge.
I find this disturbing, because the public hears only one side of what is often a complex and emotionally charged story.

A long history

The Judicial Conduct Committee was established more than 35 years ago as an independent, lay-dominated body charged with investigating complaints against judicial officers and, where appropriate, imposing or recommending discipline for misconduct as defined by the Code of Judicial Conduct.
In 2006, the appointing bodies were changed so that the speaker of the House and the Senate president each appoint one lay member; the governor appoints two lay members; the New Hampshire Bar Association appoints two members, one of whom must be a lay person; and the Supreme Court appoints five members: one representing each of the three lower courts, a clerk of court and one lay member. There is also an alternate panel, which hears cases involving a member of the standing committee.
Every state has a similar committee to handle complaints of judicial misconduct using a code of judicial conduct. The New Hampshire code was developed over many years to define how judges, masters, clerks and court reporters will conduct themselves to assure the public that it can feel confident cases will be judged fairly.
The JCC meets at least monthly and, after a thorough investigation of a report of misconduct, will either dismiss the report or carry the matter forward.
Should the committee find that a judge, master, clerk, etc., violated the code, it will determine an appropriate sanction, even so far as recommending suspension to the Supreme Court. But the JCC cannot overturn a judicial decision. That remedy is accorded only to an appellate court, which in New Hampshire is the state Supreme Court.
It is not uncommon for someone reporting what he or she believes to be judicial misconduct - often submitting 20 to 100 pages or more, photographs, and recordings to document their report - only to learn that the committee did not agree and cannot change the ruling or substitute another judge to hear their case.
If litigants report to the JCC that a judge yelled at them, or was biased in some way, was rude or demeaned their testimony or didn't follow the law, the JCC may ask its executive secretary to obtain the sound recording of the trial and/or the transcript for the members to hear and read for themselves.
If the committee votes to move to the next stage of inquiry - a complaint - it will ask for a response from the judge, master, clerk, etc. Should the committee be dissatisfied with the response, it can conduct an additional investigation, leading to the filing of a statement of formal charges and a public hearing, should there be clear and convincing evidence of judicial misconduct. Reaching that level is rare - perhaps once or twice a year out of 80 or 90 reports of judicial misconduct.

In line with the country

There is a national clearinghouse that monitors decisions by judicial conduct committees, so we in New Hampshire can follow trends and statistics. Our 85 percent rate of dismissal of initial reports follows national results.
A trend nationally and in New Hampshire is that litigants are appearing pro se before a judge or master (in other words, without a lawyer to assist them), all too often for marital and child custody cases that are emotionally charged.
Not understanding court procedure and how evidence should be presented is often an insurmountable barrier. Litigants can feel disadvantaged, even when the judge goes out of his or her way to help them through their presentation.
I hope this clarifies the distinction between the Legislature's Committee for the Redress of Grievances and the Judicial Conduct Committee. The JCC is governed by Supreme Court Rules 38, 39, and 40. It cannot change a judicial decision. The highest level of sanction for judicial misconduct is to recommend to the Supreme Court suspension from the court system. The Supreme Court has that power, but not the power to dismiss a judge from office. Only the Legislature has that power: to impeach, convict and remove.
There will always be a certain level of tension between the three branches of government as evidenced by comments from the Redress of Grievances Committee chairman and the attorney general. But we cannot forget that our system of governance is based upon the rule of law, and the public must be assured that the administration of justice is monitored independently and diligently. The JCC takes that responsibility with the utmost seriousness, evaluating every single report with respect and thorough consideration.
(Dr. Robert O. Wilson of Hopkinton is chairman of the state Judicial Conduct Committee.)

---

Source URL: http://www.concordmonitor.com/article/350640/whos-judging-new-hampshires-judges

Ithaca Lawyer What is New York State Sealing Really Mean?

Sealing the record of an arrest and an offense that was committed in New York is important to fully understand. Reading the actual statutes can be confusing without some context and background info.
I will try to highlight and explain in simple terms the main points to NYS sealing.

First, what can get sealed in New York State? 

Non -criminal offenses can get sealed. That means the large majority of violations can, and should be sealed. Under Section 160.55 (NYS Criminal Procedure Sealing) statute,
three violations are NOT sealed:

"other than a violation of loitering (1) and (2) (sexual or prostitution)as described in paragraph (d)  or  (e) of subdivision one of section 160.10 of this chapter or the

 (3) violation of  operating  a  motor  vehicle  while  ability  impaired  "

Things like disorderly conduct, unlawful possession of marijuana, and trespass (violation level) get sealed. Sometimes the best plea bargaining (negotiating) is from a misdemeanor level offense (crime) to a non-criminal (violation) level offense.

A great example: New York Penal Law Section 140.10 Criminal Trespass in the third degree is a misdemeanor. It means that you went over or through a fence or an enclosure onto private property without permission. Like jumping a fence to a rock concert or an event.

While New York Penal Law Section 140.05 Trespass is merely a violation (unlawfully on property).
New York State has NO expungement statute for crimes. So a conviction for criminal trespass would be on your permanent record forever, and violation trespass would be sealed.  You would prefer violations to misdemeanors any day of the week.

Second, What is Sealing in New York State?

I always say NYS because every state is different. Sealing is under NYS Criminal Procedure Law
Section 160.55  The best way to understand sealing is think:

SEALING = SHIELDING

Non-criminal (violations, traffic offenses) are generally shielded from view by the public, and businesses (corporations). Generally means just that, if they knew the city, town, village, and they knew the court, they that you did something there, they would have to go to that specific court to get a record of your violation there.

Now to the statute:

Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings (what a mouthful that is).

Quite simply,

1.  Upon  the termination (final sentencing) of a criminal action or proceeding against a

  person by the conviction of such person of a  traffic  infraction  or  a

  violation,,,

  the clerk of the court wherein (where it happened)

  such criminal action or  proceeding  was  terminated  shall  immediately

  notify the commissioner of the division of criminal justice services and

  the   heads   of  all  appropriate  police  departments  and  other  law

  enforcement agencies  that  the  action  has  been  terminated  by  such

  conviction. 

Upon receipt of notification of such termination:

    (a)  every  photograph of such person and photographic plate or proof,

  and all palmprints  and  fingerprints  taken  or  made  of  such  person

  pursuant  to  the  provisions of this article in regard to the action or

  proceeding terminated, and all duplicates and copies thereof,  except  a

  digital  fingerprint image where authorized pursuant to paragraph (e) of

  this subdivision, shall forthwith be, at the discretion of the recipient

  agency, either destroyed or returned to such person, or to the  attorney

  who represented such person at the time of the termination of the action

  or  proceeding,  at  the address given by such person or attorney during

  the action or proceeding, by the division of criminal  justice  services

  and  by  any police department or law enforcement agency having any such

  photograph, photographic plate or proof, palmprints or  fingerprints  in

  its possession or under its control;

    (b)  any  police  department  or law enforcement agency, including the

  division of criminal justice services, which  transmitted  or  otherwise

  forwarded to any agency of the United States or of any other state or of

  any  other jurisdiction outside the state of New York copies of any such

  photographs, photographic plates or proofs, palmprints and fingerprints,

  shall forthwith formally request in writing  that  all  such  copies  be

  destroyed or returned to the police department or law enforcement agency

  which   transmitted  or  forwarded  them,  and  upon  such  return  such

  department or agency shall, at its discretion, either destroy or  return

  them as provided herein;

    (c)  all  official  records  and  papers  relating  to  the  arrest or

  prosecution, including all duplicates and copies thereof, on  file  with

  the   division   of   criminal   justice  services,  police  agency,  or

  prosecutor's office shall be sealed and not made available to any person

  or public or private agency;"

Destruction of photographs (mug shots), prints, official and criminal records.

Lastly, are they (the records) really destroyed and/or returned?

Yes and no. They are supposed to but to satisfy the future potential governmental needs (requirements)
they are NOT really destroyed fully.

The real question is will they (the records) still exist? 

There is a copy still there as I mentioned above. Shielded (sealed) but not gone.

ALL THE BIG IF'S

If you apply for a gun permit they will be seen, if you have any future criminal activity they will probably be seen by the government prosecutor, or if you are placed on parole release or probation release from a future crime they will be seen.

(d) the records referred to in paragraph (c) of this subdivision shall

  be made available to the person accused or to such  person's  designated

  agent, and shall be made available to (i) a prosecutor in any proceeding

  in  which  the accused has moved for an order pursuant to section 170.56

  (marijuana ACD) or 210.46 of this chapter, or (ii) a  law  enforcement  agency  

  upon  exparte  motion  in any superior court, if such agency demonstrates to the

  satisfaction of the court that justice requires  that  such  records  be

  made available to it, or (iii) any state or local officer or agency with

  responsibility  for  the  issuance of licenses to possess guns, when the

  accused has made application for such a license, or (iv)  the  New  York

  state division of parole when the accused is under parole supervision as

  a  result  of  conditional  release or parole release granted by the New

  York  state  board  of parole and the arrest which is the subject of the

  inquiry  is  one  which  occurred  while  the  accused  was  under  such

  supervision, or (v) the probation department responsible for supervision

  of  the  accused  when the arrest which is the subject of the inquiry is

  one which occurred while the accused was under such supervision

They will generally NOT be seen (they are shielded) by the public company, organization, or a private investigating agency. Don't need to be listed on employment applications, etc.


         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

Ithaca Lawyer Can You Be Charged with a DWI in a Parked Car?

New York State law is not always simple or clean. It can be complicated only because we tend to "mince" words. This is especially true within the area of DWI law. Clearly we must have an agreement for what every word or term means if we are going to charge OR defend criminal charges.

NYS DWI is a criminal (misdemeanor) level offense as opposed to New Jersey where you get a civil traffic infraction. A mile over a bridge and the nature of an offense becomes crime. Life is truly unfair but those are the rules.

The BIG D in DWI 

Hint: Driving = Operation

Can the government (the DA, the prosecutor) prove the "D" in New York DWI when a car is in fact parked. Not just prove it but prove it beyond a reasonable doubt?


A critical element with any NYS DWI case is whether there was in fact the "D" as in Driving. Under NYS DWI law Driving really means "operating" and the difference between the two words (terms of art) is crucial.

For direction on this question we look to what a NYS judge will give to a jury for guidance on this issue. BTW Operate is a much broader term than drive under New York law.

The DWI NYS Jury Instruction for operation

 " A person operates a motor vehicle when that person is (found) sitting behind the wheel of that motor vehicle for the purpose of placing it in motion, AND when the motor is running, OR even if it is NOT moving when the engine (motor) is running."

Your intent (purpose) of being in the car is very important to the question of whether you are in fact operating the car (or plan to). The prosecutor must prove this INTENT beyond a reasonable doubt by the facts present.

A recent NY DWI case with a parked car, People v. Ramsey 2012 NY Slip Op 50672 decided on April 16, 2012 Supreme Court, Bronx County, the Court decided that operation (driving) was not found (no intent) based upon:

1. car parked legally,
2. car was off (ignition turned off)
3. Key in only for purposes of playing CDs (music)
4. police testimony failed to show ignition was engaged, assumed it was for music to play
5. car was never moved

The Supreme Court concluded that there was in fact no evidence of car movement or intent to move the car from the location it was parked. Defendant's right to privacy (4th amendment) was violated. Court determined that the police lacked Probable Cause, thus the Suppression of evidence of breath test and DWI case is mute.

Regarding operation of a car, See case of People v. Dalton, 176 Misc 2d 211 (2nd Dept., App Ter,. 1998). If DWI case, parked car, and ignition is NOT engaged see People v. Haddock, 2001 NY Slip Op 40138U (Nassau County).


         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

Ithaca Lawyer Got Proof? Ithaca is the Birthplace of "the" Sundae

Well my little Ithaca made Google. Celebrating the birthplace of "the" sundae, Google symbolized the birth of the sundae 119 years ago in Ithaca, New York on their homepage. Ithaca being the definite article, and not some poser wanna be like Two Rivers, Wisconsin which has also made the claim.

So me being an Ithaca Attorney ask "So how does anyone really know anything?"

Why it's in the proof of course. Can we prove it? How can be we prove it? My home was built in 1889. Just three years before the birth of the Sundae in 1892. How do I know my home was built in 1889? Because I looked up the original paperwork, at the local Courthouse, and the documents are from 1889.

How do we know that the sundae was born here in 1892? Because there is an Ithaca newspaper advertisement for the sundae showing a picture of a cherry sundae in all it's glory.

It's called documentation folks in Wisconsin, look it up!

link to copy of sundae newspaper ad:

http://www.gadgetsandgizmos.org/google-doodle-celebrates-119th-birthday-of-the-ice-cream-sundae/



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

Hoff v. Goyer

Justia.com Opinion Summary: Eliot Hoff appealed a circuit court order that remanded the administration of the conservatorship of his grandmother, Susan Bibb Kidd, to the Jefferson Probate Court. In 2006, the probate court adjudged Kidd to be an incapacitated person and appointed Mark Goolsby as conservator of her estate. Sometime in August 2008, Goolsby sold some personal property in Kidd's estate to Anita Kidd Goyer, one of Kidd's three daughters. When another of Kidd's daughters, Susan Louis Hoff, and her son Hoff found out about the sale, they filed an objection in the probate court. Meanwhile, on September 29, 2009, Kidd died. On February 21, 2011, the probate court issued an order that, among other things, approved the August 2008 sale of Kidd's personal property to Goyer. The Hoffs promptly moved the probate court to reconsider. An initial hearing on their motion was held on June 8, 2011; however, the matter was continued and another hearing scheduled for September 15, 2011. On June 24, 2011, Goolsby petitioned the probate court to be appointed administrator of Kidd's estate because he could not conduct business as conservator after her death. The Hoffs thereafter also filed a motion to continue the hearing scheduled for September 15, 2011. The probate court ruled on those motions, setting the hearing on the Hoffs' motion to reconsider and denying Goolsby's motion to be appointed administrator of Kidd's estate. Instead, the probate court, on its own motion, appointed attorney Elizabeth W. McElroy, the general administrator for Jefferson County, as administrator of Kidd's estate. Hoff appealed the order entered by the circuit court remanding the administration of the conservatorship of his grandmother to the probate court, arguing that he had properly petitioned for removal. Upon review of the matter, the Supreme Court concluded Hoff did not have standing to seek removal, that the circuit court's order of remand was properly entered.

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