New York DWI Defense and Google Fights

I love the internet. My kids are constantly pushing the online envelope. Between my son posting Utube videos, or my daughter proving me wrong with Wikipedia, we are a family flowing with, and creating media. Recently my other son (yah I got four kids) started an argument with my wife over who was more popular Kelly Clarkson or Carrie Underwood. It led to my son telling my wife to have a "Google Fight" ... I said, "what?"... so he showed us (how clever of Google)that he was right about Kelly. Anyway, it is an incredible tool, and I believe being able to access and share information instantly is changing the world we live in.

My son "proving" us wrong with the Google Fight brings to mind levels of legal proof. We do not have the ease or luxury of determining guilt or innocence via the internet (thank God!!).

People love to talk about guilt and innocence. Who is guilty and who is not guilty? But what are they really discussing? Are they discussing legal guilt or factual guilt? I work in the world of legal guilt. Whether someone did the crime is a big unknown for all of us? I was not there, we do not have a time machine, and honestly it does not matter to the legal system. In the legal world we deal in levels of legal proof. That is what the Government (the prosecutors) need to provide, to prove their case. Yeah, they have "the Burden of Proof."

There are different levels assigned to different situations, and types/areas of law. Under the Fourth Amendment (in our Bill of Rights) of the Constitution, we are to be Free from Unreasonable Searches and Seizures.

So the First level of proof is did the police have a "Reasonable Suspicion" to make a STOP.
That is enough evidence to stop a car. A moving violation or a non moving equipment violation will generally qualify here. BTW A stop is a seizure of your person. Reasonable suspicion comes from the case of Ohio v. Terry. A short rendition of the facts: A Police Sgt. of 25 years experience, who patrols the same neighborhood for years, notices people who in his opinion do not belong there (they happen to be African Americans in a white area but they could have been Asian Americans in a Mexican area). He sees them going up and down the block of a group of stores. He notices them stopping, and looking into the front of one particular store.

In the Supreme Court's opinion this was enough PROOF to stop these people, investigate (ask questions), and frisk them for weapons.

Second level of Proof is called "Probable Cause." It is enough evidence to make an arrest. This is enough evidence to strip search your wife or girlfriend (just so it hits close to home). It means the Police believe a crime is either happening or about to happen. Also referred to as Reasonable Cause, would it be reasonable to believe based upon the facts presented that a crime was happening. In the DWI context this is your odor of alcohol, bad driving pattern, failure at Field Sobriety Exercises, open bottle in the car, etc.

Third level of Proof is called "Preponderance of the Evidence." This is a civil standard (not a criminal standard) and is used to give money from one person or company to someone else. It is a little bit more than 50%. The scales are just tipping abit to one side. This is how O.J. Simpson can lose at the Civil Trial level but win (be found Not Guilty Legally) at the Criminal Trial level.

Fourth level of Proof is called "Substantial Evidence." This is reserved for license issues which are called Administrative Hearings. Professional licenses (which are considered legally as property) would fall into this category. So an instance of Professional Misconduct against a professional license of a CPA, Nurse, Podiatrist, etc. would be assessed using this standard. Some states use a little higher standard called, "Clear and Convincing Evidence."

Fifth level of Proof is "Clear and Convincing Evidence." This is enough evidence to commit someone to a mental institution or take away their child (declare them an unfit parent). Giving any of these levels a specific number is almost impossible, but we know that it is more than 50% certainty but something less than 100% certainty. Also, proof of evidence something more than a Preponderance Standard but less than BRD (Beyond a Reasonable Doubt).

Sixth level of Proof is called "Proof Beyond a Reasonable Doubt." It is truly the foundation of our country's rich history, and liberation. It is the highest standard of proof. It is the level of proof required to declare someone is guilty of a crime. They are now and forever a criminal. New York State does not have an expungement statute so the black mark stays on their permanent record forever. It is a higher level than Clear and Convincing Evidence but less than 100% certainty. Where that might fall is up to a Jury or in the case of a Bench Trial (a non-jury Trial) a Judge.

So there you have it, no Google Fight is going to resolve legal guilt or legal innocence. At least not yet anyway. So we are still left to doing things the old fashioned way with Judges and Juries, and criminal defense lawyers protecting the accused in Court of Laws.