Ithaca Lawyer What are New York Graduated Sanctions?

from crimemuseum.com

New York probation departments and the Courts love to throw around fancy terms for pretty basic things. They use plenty of acronyms, like ATI (alternatives to incarceration) or PPI (pre-plea investigation) and everyone is expected to know what they are talking about. See you at the next PTC (pre-trial conference).

Always Ask if You Don't Know or Understand

Number rule when hiring an attorney, talking with an attorney, or dealing with the Court system is:
ask if you don't know, do not assume anything about anything, ask until you are clear about the subject and the answer. I ask about the things I don't know and there is plenty I don't know. I learn new stuff every day. It is smart to ask and dumb to pretend to know.

Fancy Words versus Plain English

Sometimes things sound better when we use colorful language.

Being Incarcerated = Going to jail or prison, being locked up!
Being placed on or in Probation = Being closely monitored and supervised for years!
Getting a CD = Having to meet certain conditions (do stuff) and stay out of trouble (no new arrests)

Striving for the Appropriate

So for today, the purpose of the Court, the Probation department, District Attorney, and the Judges is to gather all the information and facts about a person and a situation and to move towards an APPROPRIATE sentence of punishment.

What is appropriate sentence for the first time DWI offender with no accident and no injuries is NOT appropriate for the second offender or the one with an accident. Leniency for those who deserve it is at the base of this idea of fairness.

This idea or philosophy is called graduated sanctions. A gradual ratcheting up of harsher penalties. They are designed to hopefully teach, assist, train, and to rehabilitate a person from their criminal activity or behavior.

Graduated Sanctions = Gradually Increasing Punishments

Does the system fail some people? yes, but I have also seen people get the help they surely needed, sometimes whether they wanted it or not. Sometimes salvation is painful. It is generally not a fun process to say the least.

The Job of YOUR Attorney

Now the job of your attorney is to bring balance to this process via input. They must actively work to ensure that everyone gets what they need to recommend and to provide an appropriate sentence.

Your Job/employment history, education, family background, drug/alcohol evaluation, treatment, etc. can all help you or hurt you. They must be a filter and a focuser of information.

The Big HOW and WHAT

They can contact probation, they can give information about you, they can guide you to do the right things, and they can advocate to the Court and to the Prosecutor. Everything can potentially count for or against you, HOW it is presented is just as important as WHAT is presented.

Larry Newman, D.C., J.D.

504 North Aurora Street
Ithaca, NY 14850

newman.lawrence@gmail.com

http://www.ithacadwi.com

Caveat Emptor, Quid Pro Quo, and the Dangers of Dis-counted Professional Services

In any given day I am on phone more than I am off the phone. Whether this is a good thing or not I can't really say. Should I be concerned about cell phone radiation? Or should I be more concerned about global warming or my neighbor's desire to frack? So many pressing questions and neurotic wanderings. Ithaca forces me to think about my impact on the planet!

Discounted Legal Services

As an Ithaca attorney that sells legal services sometimes (it is not often) people ask me for a discount. You've seen those internet ads, tickets for $195, DWI defense for $500, divorce for $399, and the list goes on and on.

Ah the dangers of dis-counted professional services.

I feel this is a huge problem because anytime you engage anyone for a service/a job to do there MUST be an equal footing. A give and take, as they say in latin, "quid pro quo."

Quid Pro Quo

Quite simply, "You give something and you get something." Trying or attempting to violate this law of nature (law of the universe) will lead to multiple problems. The Universal Law is called the Law of Reciprocity. Punishment for violating man-made law is one thing but the punishment/pain for violating Universal ones can be moreso. It is true in Every relationship you have.

First, if you give but do not receive you will feel resentment (re-sent-ment = feeling uneven). This will grow as the magnitude (the size) of the discrepancy enlarges. You know how you feel when someone takes and takes and then takes some more, in Yiddish (my Jewish roots) we call this person a Schnorrer. In German, a schnorrer is a freeloader, someone that pinches you for little crap over and over. What is worse is that this person feels entitled for some reason to get without giving.

Attorneys or doctors or any other professional who gives without receiving is unlikely to want to take your call, let alone return your call, or even spend anytime with you or your problem.

Second, people feel good about their relationship with anyone when they are on an equal footing. Balanced relationships mean meeting the other party's values and goals. In our personal relationships this is not usually achieved through money. In fact, it might be easier to pay then to have to sit through another fantasy chick flick where men act and think like women, just kidding. Creating and fostering a healthy professional relationship necessitates the exchange of money for service. Bartering is usually not a viable or easy option.

Dis-Counted Services

In Spanish, DES = un when before a word, as in "not counted." This is the same as in English, DIS = un, as in services which are "NOT counted" or worse yet, "NOT valued", or NOT worth as much.

I refuse to dis-count my self, my time, my experience, or the value of what I have to offer. Basically, dis- anything means to de-value. Anyone doing this is telling you loud and clear exactly how they feel about themselves and what they have to offer the world. They feel worth-less (they are selling themselves out) than they are willing to charge. The price (label) on their sleeve is cheap. With that mindset, how they value your time, the court's time, and their own time (and service) is going to be a potential problem.

Judging a Book by It's Cover

Maybe you should not judge a book by it's cover? Maybe the unshaven, unkempt, unclean, and disheveled person you hire to work on something is really a highly competent, skilled, knowledgeable, and experienced professional? Does professionalism run skin deep? If someone does not invest in their appearance, in their continuing education, and in their personal health/well being does all that speak louder than words? First impressions may not be always be accurate but they are telling.

What you see is what you get. If by some miracle you believe in Hollywood fantasy then maybe you buy into the fact that people can be and are usually incongruent. That the bum on the street is really a prince in disguise or that the child rapist is really a loving father.

Real world 101: people generally act, look, walk, and talk with congruency. They are what they are. If they are sloppy in their personal lives than it is likely they are just as sloppy in their practice lives. If they are cheating on their wives/girlfriends what makes them now selectively honest with you? If someone has their stuff together personally then it is likely they are a pretty good gamble/ bet professionally. I have run and consulted for dozens of professional practices as both Chiropractic Physician and as an Attorney. I can state with absolute certainty that Your "Practice" life usually mirrors Your "Personal" life.

Services are More than Time

The plumber comes over the house, spends five minutes checking the pipes to the radiators, takes out his wrench, makes two twists on one pipe and charges you $80.00. In 10 minutes he checked. evaluated, and fixed your problem. Was he worth $480/hour? Yes. You did not pay him for his time, you paid him for his expertise, his experience for the past 20 years, and his knowledge. Would you rather have the 15 minute digital laser root canal or the three hour manual drill root canal? Maybe you want your money's worth lol.

What a professional knows is worth far more than their time expended. A para-legal or neophyte lawyer may be able to do the job but at what skill level is questionable. What they counsel you on or about may be vitally important. What they fail to tell you or what they forget or what they just do not know can make a difference.

Do you honestly believe that you can get the for a limited time only, super discounted legal service
AND a highly qualified, experienced, and skillful advocate? If you do I have some land to sell you in the Florida Everglades (it may be under water right now) at a special dis-count.

Having it BOTH Ways

You can't have it both ways. You can't have your cake and eat it too (what that really means I will never understand). In other words, dis-count and high value and worth don't go together.

People who are true professionals with confidence, high self worth, and self esteem
DO NOT Dis-count themselves. I know what I am worth, I honor my value to my clients and to my profession. I pledge myself to provide a service that is first rate, first class, and of integrity.

Waking up in the morning and looking in the mirror is easy if you are competent, confident, and do something very well.

Caveat Emptor

When it comes to any professional service these days, Caveat Emptor (let the buyer beware). Be aware of what you are buying. Be aware of who you are dealing. Be aware of what you are getting. And if for some reason you feel you can cheat the system (the universe) or anyone or anything else of their due
may G-d help you. For the scales will not be in your favor. The grand balance does not care about your
entitlements, your baggage, your personal gripes or anything else, it knows one thing, there will be a balance sometime and somewhere.

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

DWI Refusal Cases Can be the Better Gamble

I just finished off three DWI refusal cases, as in got them reduced. Reductions BTW are a big deal, especially in criminal law. Many prosecutors do not like reducing charges from level to level. Getting a Felony reduced to a misdemeanor or a misdemeanor reduced to a violation is often the big win.

Now before you glorify me, G-d forbid, there are a great many cases that do not get reduced, there are many cases that I have lost. Nobody wins all their cases. Anyone who says they do is not telling you everything. I have had clients after trial who were found guilty as charged of two DWIs (the common law and the per se). It doesn't feel good, trust me.

But that said, I like the odds, the chances with the Refusal cases. Yeah, no breath, no blood, no measurement!! NO NUMBERS, NO BAC.

The unique opportunity with DWI refusal cases is the administrative refusal hearing. It allows for cross examination of the police officer concerning the legality of the stop and the arrest. It can be a great beginning to gathering the evidence (all the facts) necessary to defending the case against intoxicated driving.

The hearing is for four main areas legally:

DMV Refusal hearing:

VTL 1194 (2) (c) : the hearing is limited to the following issues:

1. did the police officer have reasonable grounds (PC) to believe that such person had been driving in violation of any subdivision of VTL 1192?

2. Did the police officer make a lawful arrest ?

3. was such person given sufficient warning, in clear and unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made.

4. did such person refuse to submit to such chemical test or any portion thereof?

Was the refusal persistent?

Imagine a DWI refusal case with a stop for an equipment violation, Now I'm getting really excited, Why you ask?  Now we have a DWI case with no number, no BAC, and with get this... NO DRUNK DRIVING!

Gotta love it, a Drunk case with no drunk driving and no forensic evidence to prove blood alcohol. There are other things to consider but all things being equal, I like the odds better with these cases.

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

DWI Stories

December 22, and it has gotten cold in Ithaca, NY. The winter winds are starting to blow, and thermals are becoming a necessary part of my morning prep. Holiday parties are in full swing, and my phone has been ringing.

I listen to stories. In truth, everything is a story. Is there really an objective reality? Sometimes the truth is stranger than fiction. If someone believes that is what happened, is it a lie? There are the stories that my clients tell me, and then there are the stories that the police write in their reports. Often my clients tell me, "that never happened! or I don't remember saying that!"

I give my client's a long questionnaire to fill out, and also ask them to supply me with a narrative of the day of their arrest. That will begin to give me the best (most complete) view (story) of the DWI. Combining that story with the police reports, and records puts me in a good position to gauge the potential defenses, strategies, and issues within the case. BUT what happens if my clients DISTORT their memory, and then I am left with a faulty story of the event.

I believe as a DWI defense lawyer that One of the most important stories is my client's way of "seeing" this event.

I am not a psychologist but I love understanding how people think. Psychologists use the term

Cognitive Distortions to describe a person who takes an event, and sees it in unhealthy ways.

1. Absolute thinking (the all or nothing pattern): Seeing your DWI as black or white. Using words like always, never, and every paint you into a corner mentally. DWI cases, and their defenses have degrees of gray, rarely are they in clear cut black or white categories. You are not a total failure because of this DWI.

2. Overgeneralizing: This DWI is not a never ending pattern of bad news or your life's direction.

3. Using Mental Filters in the negative: You pick out everything you did that was wrong, improper, and focus on that to the exclusion of everything else. Are my clients blocking out the truth (the good things they did) at some unconscious level? Are they blocking out their memory of normal, sober, and appropriate behavior patterns?

4. Negate the Positive: You downplay your positive experiences. You put down your ability to follow directions accurately, to follow the officer's directions under pressure, and to walk on a straight imaginary line in the dark at 2:00AM.

5. You Jump to Conclusions and Interpret Negatively: Just because you are not coordinated doesn't mean you were drunk, do you have two left feet?, just because you were speeding doesn't mean you were driving drunk, drunk is a conclusion, intoxicated is a conclusion, impaired is a conclusion, you can look for and see things any way you choose to convincingly support a conclusion. My tie may be red I(a fact), whether it matches my pants or is ugly is a conclusion. Give me the facts, not your conclusions about the facts.

6. Magnifying or Minimizing: Are you exaggerating or minimizing the importance of any part of this event or the event itself? Are you inappropriately making things smaller or larger than they are or need to be? Is this goof up the end of your life? your marriage? your job?

7. Emotionalizing: Are you emotionalizing (feeling it to be) the DWI? I feel it is..... so it is. Things and events are devoid of emotions and feelings, if you choose to attach negative emotions to this event it will reflect back to you as "truth" when in fact it is only a version of the events.

8. Shoulda, woulda, coulda, I must, I have to: These are the words of guilt. This behavior pattern will not help you or your case. Guilt is lopsided, it means imagining more negatives than positives in your past.

9. Mislabeling the event: Describing the DWI by putting a negative label on yourself, as in " I am a loser" or "I am an idiot"

10. Personalizing the DWI: This means "I am a horrible person, I am irresponsible" You are not your DWI case. You are not crime, or a criminal charge.

All these "Distortions" will hinder your getting past this event, and your DWI defense. They cloud your mind, your judgment, and your remembering the event clearly. To be the most help to your attorney you need a clear head.

What is DWI "Per Se"?

One of the more challenging things about practicing DWI law is communicating the legal statutes in a way that is clear and understandable to my clients. All 50 states have at least two main types of DWI/DUI offenses. One is called a common law DWI, this is what most people understand or interpret as the "driving while drunk" or "driving while impaired" or "driving under the influence." It has many legal definitions, but in NYS it is mental and physical incapacity to operate (drive) a vehicle as a reasonably prudent (safe, responsible) person.

The other NYS statute is our DWI "per se." PER SE: latin for "by, through, in and of itself, intrinsically, inherently, requiring no external evidence."

If you get one thing from this blog this is it:

You DO NOT have to show the signs or symptoms of intoxication or drunkenness or impairment to be found guilty of this offense.

Merely the fact that a "good" (accurate, reliable, properly administered, calibrated) breath test indicated a BAC (blood alcohol concentration) of .08 or more. Some people like to argue but "I wasn't drunk." It does not matter. But I drove perfectly, it does not matter. But I understood the police officer and did all the tests right, it does not matter. If the state (the government/the prosecutor) can bring in their BTO (breath test operator) and make out (prove):

1. he or she was licensed

2. the machine was properly working

3. the test was properly administered

4. the test was performed within two hours of arrest

then ... the jury may (or may not) find that you are guilty of DWI "per se."

Now a DWI defense attorney can argue the problems with taking indirect measurements of blood through the taking of breath. He can argue that everyone is different even though these machines are calculated and calibrated and set up to test and assess "average" people. He can argue that you, the individual on this given occasion had specific medical issues. He can argue that the test was not properly administered, ie. No 20 minute "observation" period.

I have previously discussed other defenses to breath test results that do not match "sober" behavior patterns. In addition, everything the state proves must be proven to the BRD standard (beyond a reasonable doubt).

I could go on and on, suffice to say, the "science" behind breath testing for alcohol leaves a lot to be desired. Prosecutors and many Judges love to rely upon breath test numbers as godspell. After going through the certification program, and studying these machines I am more than a skeptic concerning their accuracy and reliability. I do not trust breath tests!

Ithaca Lawyer The Map is Never the Territory

Uneven Surface, Can You See the Imaginary Line?

Gravel, Imagine Walking it Barefoot

In my practice of DWI defense law no two cases are exactly the same. Any lawyer who says well it's just a "garden variety" DWI is sadly mistaken. A successful DWI defense, or any defense for that matter is a question of looking through, or at the details of the day, the driving, the stop, the arrest, and the post arrest police documentation. Events don't take place in a vacuum.

There is always a chronology, and there are "stories." One version of the story will be through the eyes and senses of the arresting officer, another version of the events will be through the eyes of the accused.

My Criminal Defense Lesson from the Movie Ronin 

I am a big movie fan. I love Robert DeNiro. When great actors like Deniro are coupled with amazing dialogue movie magic happens.

In the film Ronin, DeNiro is going over the details of a bank heist, all the guys are gathered round, and as he is going over the map he STATES loudly and slowly, "the map is not the territory." DeNiro wants his men to canvas the scene, he wants them to walk, drive, and feel the target location.

On Cases I Am Analyzing I Visit the Street/Road/Place of the DWI Arrest

In order to completely defend the charges of a DWI (or any crime) an attorney MUST visit the scene. This is the place of the FSTs (Field Sobriety Tests), and the arrest area.

How was the road? How was the sidewalk? What were the lighting conditions? What was the weather like? I want to know the type of clothing worn. I want to know the type of shoes worn.
Under what conditions did the accused have to perform these tests? If I go too late things can change, like the trees and the views.

My mind races for this is the beginning of the raising of reasonable doubts. These things are what I consider the potential and the possible, the many common sense reasons besides intoxication for BAD performance which in the Police Officer's estimation led to an arrest for DWI.

http://www.ithacadwi.com

Dr. Lawrence Newman

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184