Ithaca Lawyer Wins the DWI Refusal Case By Beginning with the Letter "D"

http://www.IthacaDWI.com


Round One: Trusting NYS Motorists vs. Leery New England Motorists

The New York DWI refusal (no breath or blood BAC test) case is unique. First off, NYS is not traditionally (historically) a refusal state. We have about a 7% refusal average as compared to New Hampshire (the Live Free or Die State) with about a 90% refusal rate. Why is this? The people of New England (Massachusetts as well) mistrust the breath test or any government (police) test for that matter. New Hampshire also has NO mandatory car insurance, NO mandatory motorcycle helmets, and NO jury trials for first time DWIs.

How does a NY lawyer know these things? Well hang out at enough national DWI/DUI seminars, breath test certifications, blood seminars, field sobriety programs, etc. and you meet people from all over the country. You compare notes, and exchange ideas.

Round Two: What I learned from the New Hampshire DWI defense lawyers (refusal)

Remember they try alot of DUI refusals...

If you have a good "D" in a refusal case you are half-way home. The "D" in DWI is the driving. In DWIs the police have to first stop a car for PC (probable cause), ie. a valid reason.

If the reason is an equipment violation (broken lights, muffler, registration) = NO Bad (drunk) driving
If the reason is speeding = Maybe fast driving (a violation) but NOT necessarily drunk driving

Then we have a drunk driving case with no drunk driving.
BTW Drunk driving is usually the swerving, failure to stay in lane, wide turns, narrow turns, all over the road type of driving people think of when they think of DWI/DUI

If this is a Refusal case with NO BAC (blood alcohol concentration) and then we have eliminated the "D"then what we have left is #3:

1. NO BAD DRIVING
2. NO PROOF OF BAC (NO Sample of blood or breath)
3. What is the Proof of Intoxication?

Now we have left the government (the DA) to prove their WHAT (the "I" of intoxication) with only the police officer's opinion.

This opinion based on highly subjective field testing (walk and turn, one leg stand, Eye test) and/or
opinions on what they smelled, heard, and saw.

What "drunk" behavior did they observe? What good behavior did they observe?

Was it all "intoxicated" behavior? Was it a DWI?
Or was it "impaired" behavior? Was it a DWAI (driving while your ability is impaired)?

Round Three: The Refusal DWI Success or Failure is Always a Matter of Degree

Now we are at the crux, the crossroads of the DWI refusal case, it is all a matter of DEGREE.
What is the real difference (s) between an impaired person and an intoxicated person?
Where does highly impaired then become intoxication?
Ultimately, Where is this DWI/DWAI threshold?

NYS says it is when the motorist is IN-capable of mental and physical operation of a car as a reasonably prudent (careful) person.  

These NYS refusal DWI cases can be highly defensible. If they have the proper elements in place then success can be a matter of focus and attention to detail.

Dr. Lawrence A. (Larry) Newman

Doctor of Chiropractic

Attorney & Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.IthacaDWI.com

Why New York DWIs are Like Real Estate? Location, Location, Location

When I get a DWI phone call in Ithaca, my first question before any others is, "Where?" "Donde?" "Dove?" In any language it is "the" question. As they say the definite article.

Shakespeare may say "to be or not to be?" That is the question. Not in my world.

I say: Where were you arrested? That is the primary question.

Why is Location Everything in Real Estate?


The value of your home or any piece of land is dependent upon where it is located. Some areas of the country and the state are worth more than others. People have placed a value on what something is worth in any given place and time.

Why is Location Important in Personal Injury Law and DWI Defense Law?

Likewise, the outcome of any PI (personal injury) case or DWI case is going to be dependent upon the FORUM. The forum means where the case can be brought with accidents and injury claims.

Where can the lawsuit be filed? What Court? Where will (or can) the case be tried to a Judge or a Jury.

The Leverage of Location

I remember when I practiced in Philadelphia using the city as "my leverage" with insurance company adjusters. They would call, and offer me bupkis (crap) on an injury case, and I would counter, "fine, but a Philadelphia Jury is going give a lot more than that." I knew my forum, I knew that my Jury would come from the gritty streets of a large city where they did not like big insurance companies. They had no qualms about handing over the cash.

If I could bring a lawsuit in Philly, I did. I knew case value depended upon shopping my forum. Attorneys do this all over the country. They see if they can bring a case to a certain (specific) local. Where they can be successful. In the other direction, sometimes they can eliminate a Court or County as unfair to a case that has been highly publicized and tried in the media.

"Forum" in the world of DWI Defense.


They Call it "Justice Most Local" 


Think about the New York State numbers:

In 57 NYS Counties there are over 1,250 City, Town, and Villages Courts with 1,800 Judges hearing misdemeanor DWI cases. 70% of these Judges are Non-lawyers. I practice in about 7 counties (8 in the Summer), handling well over a hundred different courts. New York State is truly unique in this regard. Some of these Courts are beautiful and modernized while others are in the back of make shift buildings and maintenance facilities where I might conference with a client next to a snow blower and salt.

1. We need to be aware of the specific court we are in. How does that specific Judge handle the range of DWIs? It is not just DWI cases in general. How is he/she different with a property damage case, people damage case, a high BAC case, or a refusal case. How do they feel about probation or jail? How do they handle evaluations?

2. All the same things must be known about the District Attorney's Office. Not only about their general office policies but what about how that specific ADA (Assistant District Attorney) decides (negotiates/tries/bargains) cases.

The Value of People (Location) Knowledge

The range of potential sentencing options, conditions, and punishments is overwhelming. There is legal knowledge (education), and then there is the power (resource) of knowing the landscape. That's why knowing where you are, and who you are going to deal with is vitally important.

An example: I recently got a phone call on a Manhattan DWI (btw, I'm not going to NYC anytime soon for a DWI) so I referred it to a friend. He told me that they (the Manhattan Judges) do the DWI suppression hearings "right before" the DWI trials. I guess this facilitates settlement and pleas. This is NOT a common practice upstate. If I didn't know this I would be at a great disadvantage in NYC.

What you don't Know can hurt YOU!
BUT What your lawyer don't know can kill (you know I'm kidding) YOU!

Make sure you and the person you hire to represent you (anytime and anyplace) knows where they are. Knowing not just the people but how they behave in different (crucial/important) situations brings certainty and decreased fear to your proceedings.

Watch my YouTube video on the Number One Mistake Many People Make After a DWI Arrest:

http://www.youtube.com/watch?v=PBVXB0p97Sk&list=UUBwBPLfPQYrF6MC3STcNOsw&index=1&feature=plcp


I am a member of the NCDD (National College of DUI Defense), and a co-author of Strategies for Defending DWI Cases in New York, 2011 ed.: Leading Lawyers on Understanding Today's DWI Environment, Constructing a Defense Strategy, and Counseling Clients (Inside the Minds) New Edition

http://west.thomson.com/productdetail/180677/41015444/productdetail.aspx

To learn more about how DWI and personal injury cases work in the state of New York, I encourage you to explore my educational materials: blog, website http://www.ithacadwi.com, and YouTube library.

If you have legal questions, I urge you to pick up the phone and call me since I can answer your legal questions at 607-229-5184 or by e-mail at newman.lawrence@gmail.com. I welcome your call.

Criminal Defense Attorney Larry Newman
504 North Aurora Street
Ithaca, NY 14850

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