Nichols Town Court Lawyer, The Beauty of Old Buildings

As an upstate defense lawyer who travels from courthouse to courthouse, covering about 7 counties in the summer, and 6 in the winter (I leave out Yates come winter due to snow and lack of cell service), I feel lucky to see incredible little towns, grand vistas, and old buildings.

Yesterday I had the pleasure of visiting Nichols Town Court. I have represented many speeding cases and other VTLs (vehicle traffic violations) going through Nichols (actually highway 17/86) between Elmira and Binghamton over the years. I really took my time to look at the magnificent Cady library, and the carriage house (this is where the Court is located), right to the side and back of the library. They re-did the inside of the carriage house and made great use of the space. The library was a turn of the century mansion, unfortunately it is only open in the afternoon after 2:00pm.

Located right off I-17/86 and Route 282, it is about 10 minutes west of the Owego County Courthouse.
Directions to the Court here:

http://maps.google.com/maps/place?hl=en&bav=on.2,or.r_gc.r_pw.&um=1&ie=UTF-8&q=nichols+town+court&fb=1&gl=us&hq=nichols+town+court&hnear=Ithaca,+NY&cid=7561016268326448555

Nichols Town Info:

http://www.tiogacountyny.com/towns_villages/nichols.php

Court Location: Town Hall, 54 East River Road, Nichols NY 13812

Mailing: PO Box 365, Nichols NY 13812 (Justice Caloroso)
Mailing: PO Box 298, Nichols NY 13812 (Justice Quick)

Phone: 607-699-3981 ext 13 or 14 
Fax: 607-699-7959

NOTE: The judges each have their own mailing addresses (PO Boxes). 

If the return date of your Violation ticket is a Monday or a Wednesday, you have to mail to PO Box 365.

If you have any questions, call the court Monday through Thursday at extension 13. 

Their fax number is 607-699-7959.

If your return date is a Tuesday or a Thursday, you mail to PO Box 298.

Defense Lawyer Larry Newman
607-229-5184
newman.lawrence@gmail.com
www.ithacadwi.com

New York DWI Conditional Licenses

Mastering DWI Defense

Well as the year winds down it is a perfect time for reflection. Why do I do what I do? DWI defense: It is challenging, and my goal is mastery.

You see I have always wanted to do things very well. As a kid I loved magic, photography, and bodybuilding/powerlifting. I spent countless hours engaged in those activities. Time was never a factor. It seemed as if I got so involved that the world did not exist. My sister called me (more like labeled me) obsessive and intense. So why was I this way? What drove me?

One of my mentors (btw a good thing to have) Dr. John Demartini, said that the VOID drives the VALUE.

I have always felt less than. I have felt the need to prove myself to the world. To prove my value, my worth, and my ability. I was short, pimpled (nice way to say Acne), curly haired (not a popular thing in my day), husky (another word for fat), clumsy (uncoordinated), nerdy, and a day dreamer. Nobody thought I would amount to much. Childhood was hard for me, picked on, ridiculed, and generally tormented for being different. So I focused on being really good at whatever I chose to pursue. I wanted to show them (them being everyone/everywhere).

I built my own little photo lab in my basement, with used cameras, developing tanks, and an old enlarger. I put on magic shows, I even performed for Mayor Beame and the democratic party back in the day. I invented a magic trick that was published by Tannen's (one of the oldest magic shops in NYC) at the age of 14. Lastly, I competed in powerlifting, eventually coming in 3rd place in New York State in 1980.

I am still on my quest for mastery. I am committed to traveling whatever distance, paying whatever price, and doing what it takes in time, energy, and money to be the best I can . . . This time, at DWI defense mastery. I follow the same SUCCESS formula every time:

1. find and go to seminars, people, and events that I can learn from.

2. find and buy books, tapes, and dvds to learn from.

3. organize and spend part of everyday (or almost every day) reading/listening/writing

4. commit to mastering each part and area of the subject

5. pay the price for success, in time, money, and energy

6. accept and learn from my mistakes and rejections

7. work hard at preparing for all of my challenges.

This year I attended and participated in 10 seminars:

January 2010: Gerry Spence Trial Lawyers College: Opening Statement, Asilomar, California

February 2010: Gerry Spence Trial Lawyers College: Direct Examination, Round Top, Texas

March 2010: Gerry Spence Trial Lawyers College: Closing Argument, Leavenworth, Washington

April 2010: Texas Criminal Defense Lawyers Forensic Science for DWI New Orleans, LA

June 2010: Gerry Spence Trial Lawyers College: Psychodrama, Dubois, WY

June 2010: New York Criminal Defense Lawyers NY DWI Update, Wayne, New York

October 2010: New York State Bar Assoc. Expert Witness Seminar, Syracuse, New York

October 2010: New York Criminal Defense Lawyers DWI Update, Syracuse, New York

October 2010: The Breakthrough Experience, Self Mastery Program, Boston, Mass.

November 2010: Texas Criminal Defense Lawyers, Advanced DWI Seminar, San Antonio, Texas

7 states, 10 seminars, and one incredible year. I won't even begin to tell you the number of books, dvds, and cds I have purchased on criminal law, and DWI defense. Suffice it to say I have quite a library (my resources).

I believe "You" are always your greatest investment. A great many companies, organizations, and businesses spend millions on advertising/marketing for clients/customers.

If only they spent that time, energy, and money on their product or service. People sometimes ask me How I "Get" Clients. So many people are only interested (primarily interested to be fair) in the bottom line.

In my opinion these companies do not:

Panera's Bread, Starbucks, Dunkin Donuts, Apple, Wegman's, . . . Great bread, coffee, computers, and service . . . looking towards the future, innovating, transforming . . .

They "Focus" on being better, rendering a better product, a better service, not on a gimmick, or selling a fantasy to people.

As to me . . . Well, I not interested in retiring, why would I? I love what I do (contributing and serving as an attorney), I care about doing a great job (the best with the facts/case in front of me), I love learning, growing, and transforming my self and my business with new ideas,

so as 2010 comes to a close I look forward to re-grouping to do more (quality not cases) in 2011.

The DWI Defense Challenge, It's not about the truth

I just came back from two back to back Syracuse Law seminars. On Friday, Oct. 23, I went to a New York State Bar seminar on Expert Witness testimony, and on Saturday, Oct. 24, a New York State Association of Criminal Defense Lawyers event at Syracuse Law school. That seminar had criminal defense lawyers from around the state speaking on a multitude of topics, one of which is my favorite, DWI defense.

I learn something new at each, and every seminar I attend. In fact at this seminar even the speakers hung around to learn from the other speakers. The best lawyers know it is never over. I will be the first to tell you that law is a practice. You work and grow from each case. No two cases are exactly the same. One of the speakers at S.U. is a favorite of mine, Ray Kelly. Ray is one of the most passionate and inspired advocates I have ever met. He reminds me and every other defense lawyer why what we do and how we do what we do is so important.

We represent fellow human beings. Ray takes that Oath to uphold the rights of others very seriously as do I. We have a duty of constant vigilance to not allow illegally sufficient evidence or evidence that has been obtained in a unconstitutional matter be used against out client.

The following synopsis paraphrased and shortened comes from Justice White's opinion in Wade, 388 U.S. at 256. We (criminal defense lawyers) have a duty to protect and defend. I have no obligation to ascertain or to present the truth. I need present nothing, even if I know what the truth is. If I can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be my normal course of action. My interest in not convicting the innocent allows me to put the State to it's proof, put them in their worst light regardless of what I think or know to be the truth. In fact, my duty has little relation to the search for truth.

I must continue my commitment to POlice the POlice, challenge the prosecution, and to make sure that no person accused of a crime stands alone against the government.

The Back to School DWI

It's been a long and hot Ithaca summer. Compared to last year's record coolness, and lack of humidity this summer was brutal. I think we used the old window A/C units only few times last year. In fact, I was bragging to some friends how summer here is so lovely, blah, blah, blah, and then 2010 balanced it all out.

Cornell University and Ithaca College students are back, and the town is buzzing once again. My law practice focuses on DWI/DUI defense so naturally I have represented many students over the years.

One all too common DWI scenario is when a boyfriend and girlfriend have a nice dinner or a small party/get together. They all plan to spend the night, enjoy some drinks, and no one plans on driving. Then later in the evening or in the wee hours of the morning a fight or argument ensues. Maybe a drink spills on a laptop, or the liquor/beer/wine brings out some honest feelings or perspectives. Maybe the conversation becomes heated. Tempers flare and all reason gives way to heated emotion.

Now one party demands that the other leave immediately. Your best friend/lover/partner may even call the police after you leave, and tell them you are driving drunk or that you are driving high. With the flip of a switch you are in DWI hell. This situation is so common in my world that I call it the back to school DWI.

I always tell students that the time to think about a back up plan is not in the heat of the moment. You cannot think clearly with a combination of alcohol, and a polarized emotional state. Do not take any chances with your future. Always have cash and/or a credit card for a cab. Always have a car service number programmed in your cell contacts. Never assume that your friends are always looking out for your best interests. The bottom line is you have to protect yourself.

New York DWIs and PSI Final Thoughts

On this beautiful Ithaca morning I have a few lingering thoughts concerning NY PSIs for DWIs.

The PSI (pre-sentence investigation) report is NOT a public document. Disclosure is limited to the defendant, defendant's attorney, the judge, and the prosecutor. In fact the report is usually held by the Court and can only be viewed by counsel and not copied nor circulated. Although I have had a number of Courts send me the report for viewing prior to sentencing this is more the exception than the rule.

Probation officers act as an agent of the Court. Their role is to assist the Court (the judge) in determining a fair and appropriate sentence. In certain criminal cases (other than DWIs) a client may opt for jail time in lieu of a lengthy period of probation. In NYS generally misdemeanor probation is three years and felony probation is five years. If Probation is recommended for a DWI it is usually not negotiated to a term of jail. DWI Probation (supervision) may be in addition to a term of jail but not in exchange for a term of jail.

The Purpose for probation in DWI cases is to assist the defendant in obtaining and maintaining sobriety. This specific and necessary purpose, namely to monitor (supervise) the defendant from drinking (any consumption of alcohol) or being in the presence of alcohol. A violation of probation by drinking, being around alcohol, or being in alcohol serving establishments generally results in a six month jail term. Sobriety is the goal. Treatment, classes, and rehabilitation are the means to reach and maintain an alcohol free life. With DWI probation this is taken very seriously, and there is no wiggle room for special events or for "I did not know" type excuses.

Understanding the New York DWI PSI (Pre-Sentence Investigation) Part Two

The PSI is a process that should be taken very seriously. Your honesty with the probation department is paramount. They will be checking and verifying any and all information provided. Sometimes referred to as "collaterals," as in collateral sources of information, the contact phone numbers and references you provide to the officer must corroborate with your statements to the officer. Lying about your previous employment, drinking, and drug use will negatively affect your report. Your being accurate and truthful with the probation officer will go a long way to ensure a favorable report.

First impressions count. Showing up on time for your appointment, being clean, neat, and ready to cooperate will start your interview off on the right foot. You may be asked to go for a drug/alcohol evaluation and/or a psychiatric evaluation. In certain situations, more than one probation interview may be necessary. Also in certain situations the probation officer may feel it is important to have a one on one discussion with some of your family members prior to writing his report.

The Pre-Sentence Report contains the following sections:

1. A Cover sheet. This has the basic facts about you and the charges.

2. Prior Criminal History. Your attitude about past behavior (whether you have accepted full responsibility for your actions) and current behavior are very important. If you have pled guilty now is NOT the time to downplay your guilt or your actions. The officer will be attempting to see if you are owning up to this crime, and how you came to be in this situation.

The two most important R's are: REMORSE and RESPONSIBILITY

3. Your Social History, and current circumstances.

Stability of home life (past and present), family and friends (support), education, employment, use of drugs and/or alcohol, involvement in any treatment/rehab programs, and mental health history and counseling.

The OVERALL EVALUATION of the officer will be based upon the following:

a. Your attitude

b. Your behavioral habits, traits, and tendencies

c. Your future interests, goals, and plans

d. Your ability to cope with your past problems and your current charges

e. Your current and past associations with people (who you hang out with)

f. Your family relationships (your support system)

ARE you STABLE?

How STABLE are you?

What can probation predict in terms of your future behavior?

In other words are you a danger to yourself or others?

Do we have a cause to be concerned?

Do you require supervision?

At the end of every report is a pink sheet entitled, " Departmental Sentence Recommendation with Supporting Reasons." NOTE: This comes from the Probation Officer's supervisor, and not from the probation officer.

Your attorney can contact probation and provide information about you as well. In instances where PSIs are ordered I commonly provide the Court, the Prosecutor, and the probation officer with information concerning my clients to ensure the best outcomes.

In the end, being up front and candid with probation is the best strategy overall.

12 Good Reasons Not to Represent Yourself for a New York DWI

I love practicing law in an area filled with many colleges and universities. Ithaca, NY has Ithaca College and Cornell University and my practice focuses on DWI defense within 50 square miles of Ithaca. Over the years I have represented many students and professors who attended SUNY Binghamton, SUNY Cortland, University of Buffalo, Keuka College, TC3, New York Chiropractic College, Syracuse University, etc. The Finger Lakes region also draws people from all over the country for college events and games, recreational activities, and conferences.

In my view, higher education and drinking seem to go together like spaghetti and meatballs. Like it or not people like to drink. I enjoy drinking. There is no law against drinking and driving just driving while impaired or intoxicated. College can be stressful because thinking is the hardest work there is. Writing voluminous papers (often expounding on topics no one cares about), reading (usually very dry material), and taking exams (that play with your mind) is not always fun times.

Alcohol is the most common, legal, and socially acceptable drug we have. Some of my best college memories involved sharing a drink with my friends and fraternity brothers. After having been through many years of college between my undergraduate B.S. in Human Biology, my Chiropractic education, and then law school I have seen the use and misuse of drugs and alcohol. Mr. Mackie may say "drugs are baddd," but I do not believe that drugs or alcohol are bad. They have their place, much like everything else.

I have had a lot of very smart clients. Some with Masters degrees, and Phds in very hard subject areas. They are as a group highly intelligent, motivated, able to research, understand, and apply knowledge at a level beyond the average person.

Which brings me to my burning question of the day,

Should these People represent themselves? In other words proceed, "pro se"?

I will start out by stating a clear and unequivocal NO! and then give you my twelve reasons.

1. If you are embroiled in something personally it is impossible to remain objective. Distance gives perspective, balance, and non emotional (clear) judgment.

2. Most even very intelligent people do not understand the legal system. Even relatively simple Burdens of proof between license issues (administrative) and criminal cases are different.

3. Many Attorneys in 2010 have to specialize and focus in particular areas of law.

The attorney that understands and spends years practicing primarily divorce law will not know how to handle even a speeding ticket let alone DWI charges.

4. Different areas of the country, state, county, city have local rules and customs.

How a Judge, Court, or Prosecutor proceeds with a DWI case in one part of the state may differ greatly by how they handle it in another part of the state. A DWI in Manhattan uses a different breath machine, the Intoxilyzer 8000 versus the Datamaster and Draeger Alcotest (State Police) in Upstate New York.

5. There are usually collateral issues (ie. license) that need to be addressed.

Dealing with the DMV and ALJs (Administrative Law Judges) at DMV hearings is another potential aspect of DWI cases that is overlooked by lay people.

6. There are often pragmatic issues that need to be thought through. How is your case going to affect an out of state license? What are the potential penalties and future ramifications to your specific job or profession?

7. If your case requires hearings, motions, and a trial what then? Are you certified in Field Sobriety testing? Are you familiar with the forensic science behind Breath testing? Have you ever cross examined a police officer? Have you ever presented evidence? Have you ever picked a jury?

8. Would you know what to look for after you obtain the police reports, breath test documents, and other discovery? Have you read many of these? Do you understand police procedures and protocols? Would you be able to pick out problems with the processing of your case?

9. Would you know what was missing from police reports and other documents?

What's not there is as important as what is there. Can you read in between the lines?

10. Is it possible for you to look over one case (your own) in a vacuum and have any insight, perspective, and/or place it on the spectrum in comparison to any other cases? Do you have a firm grasp of current DWI case law? Can you pick out the legal issues and research them? Can you spot any potential defenses?

10. Seasoned attorneys even hire attorneys to represent them and their families.

What legal background or training do you possess? Have you had any prior experience representing anyone legally?

12. Do you believe that the Government prosecutor will negotiate with you fairly, in good faith, and the same way as if you were represented by an attorney?

Do you think you are on even ground when talking with the district attorney? Does he know more about your situation than you do?

It is often said that people who represent themselves have a fool for a client, don't be foolish get the best lawyer you can afford.

Understanding New York DWI Alcohol Evaluations Part 2

When I practiced as a Chiropractic Physician (before my legal career) I was trained in the use of a psychological manual called the DSM- III (this is now the updated DSM- IV). DSM stands for The Diagnostic and Statistical Manual of Mental Disorders. Think of the DSM as "Abnormal Psychology for Dummies" and you have a better picture. This manual allows doctors, psychologists, social workers, addition specialists and a host of other mental health care servers to quickly look up a set of symptoms, patterns, and other behaviors and make a "potential" diagnosis or diagnoses.

As a doctor I needed to differentiate (and sometimes place a rule out diagnosis) between physical illness and psychological illness. Oftentimes patients would have a layer of psychological problems/issues aside from and in addition to their disc or nerve or muscle injury. Now the reason I bring up and explain all of this is because this manual is the "go to" guide for evaluators. As a DWI defense lawyer the manual has new significance for me and my clients.

The manual describes alcohol abuse as ANY "harmful" use of alcohol. Harmful use of alcohol can be further described as any use that causes physical and/or mental damage. We all know that alcohol by it's very nature causes brain cells to die (alcohol blocks oxygen from the brain) so an abuse diagnosis is a very common one.

Legally, Alcohol abuse merely requires education. This can often be in the form of New York State's DMV 7 week Drinking Driver Program (DDP). The Court can force compliance with treatment, rehabilitation, and education related to any plea and/or conviction. In some New York counties this must come before a final case resolution, but in the majority of others it comes as a condition of discharge with the Court (after the final disposition).

The question on everyone's mind is so where is the line between alcohol/drug "abuse" and alcohol/drug "dependence"?

Well generally the following are some of the behaviors that those dependent on alcohol may display:

1. Drinking only one type of alcoholic beverage or preferring one brand.

2. Only going to events, get togethers, and parties that serve alcohol.

3. Being able to drink more and more over time by increasing their tolerance to alcohol.

So far these first three sound like my college days or the behavior patterns of many of us, but please read on,

4. Making a decision to quit drinking and then feeling compelled to drink.

5. Drinking to help a hangover (after a night of intense drinking).

6. A compulsion to drink (feeling you have to drink).

7. Getting shaky and feeling ill if you do not drink (alcohol withdrawl symptoms).

If you become DEPENDENT on alcohol then you should seek help. These last 4 critieria indicate people that have a problem with alcohol.

If we look at what the DSM-IV states we find the following:

If you have (display) 3 of the following 7 symptoms (over the course of a year) you are classified as alcohol dependent. By the way, Alcohol "dependent" is a nice way of saying you have "alcoholism."

-You Neglect activities (giving up on your job, social, and joyful pursuits) because of alcohol,

-You drink Excessively (large quantities over long time periods) beginning drinking early to late,

-You Can not Control your drinking or cut back on drinking,

-You Keep drinking even though it is affecting you mentally, physically, and socially,

-You spend a large majority of time in activities that involve drinking alcohol,

-You get nausea, shakiness, anxiety, and sweating if you do not drink,

-You can really put it away (you have a very high tolerance).

My own personal opinion from helping thousands of people as both a Chiropractor, and as an attorney is those people with drug/alcohol problems usually know it. If they do not deal with it early and own up to it they will eventually be forced by the Court/Legal System to confront their issue with more pain and cost to them and their families in the long run.

To me there is nothing sadder than watching someone throw away their life, and their potential as human beings away due to misuse of drugs or alcohol.

The One Opinion DWI State

Living in the land of: "Ignorance is Bliss" and "What you don't know won't hurt ya." The problem with attending Forensic Science DUI conferences is that you can no longer be a mushroom in the dark. Choosing to remain silent is difficult. So enough beating around the bush...

New York State just takes one breath sample. It's called "replicate" testing. They (the police) Test one sample twice versus the industry accepted norm of "duplicate" testing whereby they take two separate samples. Many other states do duplicate sampling. Because CSI fans, having two separate and distinct samples (within .02 of each other) assures greater accuracy of the procedures.

Imagine for a moment going to the doctor, and getting a high blood pressure reading on his machine. The doctor makes a hypertensive diagnosis based solely upon the one test, and prescribes medication. How about one better, have a blood test for HIV and you are told it is positive. Sorry no second opinions for you, you just have to live with those results.

Well having a breath machine spit out a number is scary stuff. The machine is an unsworn trial witness. Scarier still is the fact that for the test results to even approach any accuracy the machine operator needs to follow the proper procedures. Couple to that fact that machine breath testing of alcohol ASSUMES: an average body temperature, an average metabolism, an average lung capacity, your body is done absorbing alcohol, and you are healthy we have all the ingredients of an inaccurate test.

An inaccurate test is bad enough but when you only get one opinion (from one test sample) it makes that test critical to your guilt or innocence of DWI "per se" (based on the test). Errors in breath testing generally come from three different areas:

1. Machine errors

2. Operator errors

3. Subject errors

Looking at each of these areas in detail is crucial to mounting an effective DWI defense. Recently, I had a case where the chemicals used in testing were expired prior to doing the test. Technically, the chemicals have a certified expiration date from the NYS Police crime lab but more importantly is that that is a "shelf" life (date) for the chemicals. Once the chemicals are put into use for testing on the machine they can only be used for 60 days ("use" life) from the date of first use. So checking chemical logs (the police must keep weekly logs of the chemicals) against the certified expiration dates is important.

The Price of Success

Everything has a cost. Nothing is ever truly free. I tell people beware of freebies. Beware of the free lunch or the easy anything. Things of "value" have a price. Of course, the word value is the kicker.

So what is it that we value? First and foremost, I think that those that are building a future for themselves value their name and reputation. I guess if you are not planning to venture forward to bigger and better things having a lifetime criminal conviction on your permanent record would not matter. For those that are dreaming of jobs, positions, professions, prospects, and opportunities their life file of pluses and minuses can impact their future choices and their options.

People ask me many of the same questions again and again. The BIG Question in DWI defense: What is the difference between a DWI and DWAI? The main difference, the crucial difference is that one makes you a criminal (a person with a criminal conviction) on their record and one does not. The money and other associated pains, as in the fines, state surcharges, DMV fees, classes, etc. are not that different between the DWs (the driving while...).

If you want to fight the charges. To contest the evidence. To challenge the government. All of that comes with a price. It takes time, money, and effort. In some cases, we need expert witnesses. We need experts to testify about your asthma, your reflux, your diabetes, your medications for allergies, and any other reason why your breath test result (your BAC) was what it was, and not because you were intoxicated. Defenses like these do not come cheap.

Wars are never easy or inexpensive, and trials are wars. The government has the power to charge and prosecute, and the resources to accomplish this. They often exercise this power without discretion. Those that are naive believe that their lifetime of good work, achievement, standing, and clean living will somehow negate the government's intent on pursuing prosecution of crimes.

The prosecutors do not care about any of that. Their focus is always on: can they make out their case against you? Can they make the charges stick? In theory, they are supposed to seek justice but in truth they seek convictions.

New York State DWIs are not commonly (rarely) reduced to non-criminal dispositions. Those with BACs of 0.12 or higher should brace for a bumpy ride. In 2010, refusal (without a breath test) cases are being prosecuted just as seriously.

I am committed to the challenge of DWI defense. I have a wife and four kids and they all pay the price of my learning. Getting to and attending conferences thousands of miles away comes with a large price. Many long weekends spent in airports, planes, hotels, and conference centers takes it's toll on marriage and family life. I believe learning can never and should never end.

This year, I have already been to three Gerry Spence Trial Lawyer College conferences (one in January in California, another in Texas, and another in Washington state). I am about to jump on a plane in the morning for the annual Texas Criminal Defense Lawyers DWI seminar in New Orleans, Louisiana. It is called "Mastering Scientific Evidence" and we will be working with the breath machines. These are not sit in the room and take notes types of get togethers. We have mock DWI trials, we have hands on work with the Datamaster breathalyzers, and we practice skills building exercises. Defending DWI cases demands hard work, diligent focus, and persistent effort to be successful. I invest in success so that when my clients place their trust and faith in me as their attorney it stands on current education and experience.

The Standardized DWI Arrest

As winter gives way to spring in lovely Ithaca I am reminded of the beauty of nature. The birds are coming back, the croci (crocuses) are beginning to emerge, and I hope we have seen the last snow of winter. It has been a mild 2010. Our friends in the big cities (Philly and NYC) got hit this year. We had hardly anything (relatively).

The wonderful thing that nature reminds me every year is that people like flowers or snowflakes are unique. Your fingerprints, DNA, and combination of traits is unlike any other the world will ever see. Yet we (as a society) like to "standardize" everything. So what gets mass produced, marketed, and sold is the average. What is played again and again is the popular song. Popular doesn't mean good, it means what the common majority likes.

So Larry, what the hell does this have to do with DWI defense? Excellent question!

Law enforcement and the government builds their case evidence (proof) using:

1. Standardized administration procedures (in both the SFSTs and Breath test)

2. Standardized clues

3. Standardized testing criteria

A DWI arrest is usually based upon the officer giving you tests at roadside. His observations, and your performance will support his decision to arrest. He feels he has probable cause (based upon his proof) to make an arrest for driving while intoxicated.

The SFSTs (Standardized Field Sobriety Tests) are:

1. A series of three evaluations that have to be administered in a standardized manner by law enforcement. They are the walk and turn, one leg stand, and HGN (horizontal gaze nystagmus).

2. They have been created/chosen/selected and established by Government Authority (National Highway Traffic Safety Administration) as a RULE.

3. This RULE is for measuring the loss of mental and physical faculties (impaired function).

But are they accurate? In other words, do they conform exactly to truth or a standard?

And are they precise? Do they strictly conform to a set pattern, standard, or convention?

The first problem with any testing following a car stop is the officer has NO BASELINE.

He or she doesn't know YOUR normal. He doesn't know your physical and/or mental limitations. This is where standardized tests don't account for YOUR unique characteristics. YOUR past knee, back, shoulder, hip, neck problems. YOUR inner ear infection, cold, or flu.

A second problem with testing is that it is usually done outside. The conditions are usually not ideal. Weather is one issue. How many winter DWI cases with snow, ice, and freezing wind as our backdrop? How many motorists are without coats, jackets, or proper (appropriate) attire for being outside at 1:00AM in Ithaca, NY in December? What of the road conditions? What area were you forced to use to perform these balance, coordination, and mental exercises in the dark and in the middle of the night?

A third problem with testing is that the officer does not always follow procedures or he complies haphazardly. Standardized testing must be done in a set way and by following very specific protocols (rules/guidelines). Often officers will refuse to acknowledge they even "measured" anything. They prefer the word "estimated" or "scored" because those terms have less precise connotations. Did the officer leave "all" his emergency lights on when giving the tests? Did he communicate what he wanted from you clearly?

A fourth problem with testing is footwear. In the summer and spring the issue is usually flip flops. In the winter it is usually boots. High heels are always an issue when it comes to having to walk on imaginary lines, and balance/stand on one leg.

The breath test also has protocols and guidelines. It also needs to be "administered" properly. Sometimes law enforcement doesn't follow all the rules. Adherence to the rulebook is not always forefront in their minds. Not being being strict in compliance can lead to inaccurate results.

And inaccurate results can lead to wrongful DWI convictions.

DWI "Just the facts, ma'am"

I listen to stories about drinking and driving almost every day. I need to know all the details. In my day we had a TV show called Dragnet. The show had a cop named, Joe Friday who loved to say, "All we want are the facts ma'am." I too want the facts but more importantly I want my client's version of the night. I want to understand his perceptions and viewpoint.

This allows me to piece together the timelines, the potential witnesses, behavior patterns, and the amount of alcohol consumed. Ultimately I want to have a more clear picture of the prosecution's case against my client. I also have a software program that allows me to input my client's age, sex, height, weight, and drinking information to arrive at a pretty accurate BAC (Blood Alcohol Concentration) at the time of driving. Of course it is only a BAC range, and highly dependent upon my client giving me reliable information.

One of the first things that is difficult to estimate is the potency of the drinks. What type of beer or wine was drank? What was it's alcohol concentration? How big were the cocktails or the glasses they came in? Sometimes "one" drink has really 3 or 4 shots of 80 proof liquor. Beer can be 3-5 % and wine can go up to 14 %. Bacardi 151 is 75 % alcohol!

I recently had a client who swore he only had 3. Yeah, as in 3 Long Island Iced Teas! Do you know how much alcohol is in one LI Iced tea? In a good one, there is probably at least 4 shots.

So my client had 12 drinks before he began drinking Lite beer later in the evening. I would imagine smoking a few hits off his buddy's joint didn't help matters.

Remember that proof is twice the percent of alcohol.

5 ounces of wine 24 proof 24 ÷ 2 = 12 (% alcohol) 12 ÷ 100 = 0.12 0.12 x 5 oz = 0.6 ounces ethanol

12 ounces of beer 10 proof 10 ÷ 2 = 5 (% alcohol) 5 ÷ 100 = 0.05 0.05 x 12 oz = 0.6 ounces ethanol

1 1/2 shot 80 proof 80 ÷ 2 = 40 (% alcohol) 40 ÷ 100 = 0.4 0.4 x 1.5 oz = 0.6 ounces ethanol

One drink = .6 ounces of ethanol and usually one drink will cause someone (the average person) to go up .02 to .03 BAC per drink. If you had 4 drinks in a one hour period then your BAC would be .08 to .12. Alcohol dissipates (is expelled, eliminated) at around .015 to .02 per hour. In theory you can drink one drink per hour and clear the alcohol from your body at that rate (in other words remain alcohol free), after the alcohol clears.

So you are at a bar and have two drinks over two hours, you leave the bar, your BAC should be less than .04?

But we do not know the size of the drinks, or your metabolism, how much you weigh, or what you ate? All these factors affect your elimination rate.

Breath tests are not always reliable, accurate, or valid. Often they are not administered properly. People come in all different shapes and sizes. Getting a real BAC is a beginning, and getting the facts of the case from my client takes us one step closer to defeating a DWI.

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

Don't Worry Bout It!

Oh the problem of these four little words. When I hear them I cringe. I have heard these words all too often in Court. They are usually spoken by some lawyer to their client. As in, "don't worry about ... your legal status (non-citizen), your out of state license privileges, your future ability to find employment, your ability to get a professional license, your ability to travel to Canada, etc. etc.

You have to anticipate Collateral Consequences of anything. Everything (every decision) has far reaching and typically long lasting affects. Much like the game of dominoes, once we set a course of events into action, many fall one against the other, and often we cannot even predict when this chain of action will end.

So that said,

1. You have to talk to more than one lawyer about your problem. Get some different perspectives.

2. It is best to talk to a lawyer who specializes in the specific type of problem you are facing.

3. Just because someone has 20, 30, or 40 years of experience does not make him better.

4. Lawyers that use the phrase, "Don't Worry Bout It" should be avoided like the plague.

5. A DWI conviction can affect multiple life areas including your out of state driver's license, your professional licensure, your employability, your permanent record, your ability to travel freely, and your insurance rates and insurability.

As an example of this, I recently had a college student come to me with a first time DWI charge. He held a driver's license from another state. He was attending college in New York State. Since he was planning on staying here for a number of years (establishing residency) for college he should have switched over his license to New York State.

Now he faced a crossroads. Should he switch his license before his initial appearance? Should he get a New York State license? Some lawyers told him, "Don't worry bout it," I told him if I represented him I would investigate the potential DWI conviction ramifications back in his home state. I am a member of the National College of DUI Defense, and have DWI defense friends (on my list serve) as an invaluable resource of information.

The range of consequences in these situations is immense. From fines of $3,000 (ie. New Jersey) to license revocations of 210 days (ie. New Jersey) without conditional (any) driving privileges. So these decisions (much like choosing a lawyer) should not be made or taken lightly. What happens in Colorado, Mass., PA, and the other 43 states varies. But making educated and informed decisions by knowing what happens and saying "don't worry bout it" are two totally different things.

Defense is an Offensive Game

January in Ithaca, NY can be brutally cold. This season though has been mild so far. It is funny to think that 30s and low 40s can feel downright warm but compared to sub zero days... it is!

A few weeks ago I was waiting for my wife's car to be serviced at a Syracuse dealership. In the reception area I struck up a conversation about Ithaca with another customer, and that lead to the "so what do you do?" question. When I said, "I am a DWI defense lawyer" eyes were raised from magazines, and off the TV set directly to me. One woman then proceeded to tell me about her brain damaged son and the drunk driver that hurt him. I thought, oh boy! here it comes. She asked me how I lived with myself? My practicing criminal defense and especially DWI defense OFFENDED her. She said, "Those" people don't deserve to be defended. She asked me why didn't I practice public interest law? Was I only interested in making money? She then launched into a personal attack without even knowing me. I did not sit complacent, I explained my role, my passion for justice, my belief in the Constitution, and my respect for the process. I did not apologize for what I do. I am proud to defend the accused. I told her I did condone reckless or irresponsible behavior ie. I am not "for" driving drunk. That would be ridiculous.

Often in the world of law, and attorneys it is best to conduct oneself civilly. I think there is a DWI defense exemption to this general rule. I believe that is why it takes a certain personality to do this type of work well. I am at core a street lawyer. I was born and raised in the gutters of Brooklyn, so to speak. There is nothing Ivy league about me. I am not very cultured. My wife is still teaching me proper etiquette. I am a little rough. Her lifetime project is to civilize me. Yet when it comes time for confrontation guess who she calls? I am her knight. I have no issues with

going face to face or head to head over things I believe in. I am small of stature but my passion for fair, and my heart for justice are large. I hate bullies. At times I think life requires confrontation, and although the large majority of the population does not like controversy, it is necessary. Nothing of value is ever won without a fight. That is so important I want to state it again, Nothing of value is ever won without a fight! The sweetness of victory is directly proportional to the price paid to earn it.

SO some lawyers should not be defense lawyers ... If they want to be liked, if they want to be accepted, if they want to be noble, then they should be another type of lawyer. Defense to most people does not usually imply attacking an opponent but evidence must be attacked. It must be questioned! It must be challenged!

Attack an invalid stop!

Attack an invalid arrest!

Attack the police investigation!

Attack the police observations of driving!

Attack the police observations from personal contact!

Attack the field sobriety tests!

Attack breath testing instruments and their results!

Attack the administration of the tests!

Attack the officer's finding of impairment and/or intoxication!

Yes, that is why I believe that DWI defense is an offensive game.

Out of State Licenses and NYS DWI

As is often the case with students attending Cornell University, Ithaca College, or SUNY Binghamton I have clients with driver's licenses from many different states, and sometimes even different countries. With criminal charges pending, often a DWI, wasting time by waiting for things to improve on their own accord is futile.

There are unique and collateral issues that need to be dealt with early in the majority of situations. For instance, if someone is from New Jersey and holds a NJ license, and now is a student residing in New York State, and if their future plans include staying in NYS for a number of years then why are they maintaining a NJ driver's license? Is it in there best interests, financially and functionally to maintain their NJ driver's license? These issues may not be as pressing until I tell them that because they hold a NJ driver's license their NYS DWI conviction is going to cost them $1000/year for three years ($3,000 in total) in NJ, and then another $250/year for three years in NYS. In addition, NJ will suspend their driving privileges for 210 days (with NO conditional or restricted license privileges).

So waiting to hire a lawyer is not a good idea. In fact hiring a lawyer not conversant in how a DWI/DUI conviction can impact your state's driving privileges is a bad idea.

Any lawyer can do any type of legal matter. BUT will they do a good job is another story. Will they be thorough? Will they understand the collateral consequences? Just today I got an email:

"First and foremost, I'd like to say that ive gotten more information from you on your website than i did from my own lawyer! My question is...."

So my advice:

Always Hire the best Bankruptcy lawyer for your bankruptcy!

Always Hire the best family lawyer for your divorce!

Always Hire the best estate lawyer for your will and trust!

Always Hire the best business lawyer for your incorporation!

Always Hire the best real estate lawyer for your house closing or sale!

Having a generalist lawyer handle your case "may be" like having your family doctor (GP) handle a foot problem (instead of a podiatrist) or

handle a back problem (instead of a Chiropractor or an orthopedic surgeon) or

handle a skin problem (instead of a dermatologist) or

handle a psychological problem (instead of a psychologist)

Don't tell me but he's been practicing for 25, 30, or 35 years so he knows what he's doing. Remember the world is dynamic. The laws are constantly changing, the days of the generalist are over, and staying current and focused is the best strategy for long term success!

The Art of DWI Defense

As the year 2009 comes to an end for me it is a time to reflect upon the past, and prepare for 2010. I have learned a lot this year, and grown as a DWI defense practitioner, and as a person. So as the year comes to a close... what have I learned? Or more true to form ... what have I been forced to remember?

1. You have to fight for what you want. Contesting a DWI comes with a price. Very little of true value, and worth comes easily. This price is not just money. It is time, it is effort, it is emotion, and it comes with making an investment in the outcome.

Whoever is first to the battle will be fresh for the fight. Sun Tzu

2. What happens outside of the Courtroom determines what happens inside the Courtroom. If a DWI trial is a day or two, the prep for that trial is weeks to months. Much like a game of football, level of practice and training determines the game's outcome. Few realize that those magic moments on game day are the result of thousands of hours of mental and physical work.

For me it is all those seminars, certifications in FSTs and Breath Testing, books, and DVDs. It is honing and focusing on one thing to the exclusion of all else.

The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand. Sun Tzu

3. DWI Policies are not set in stone. This year the Pope changed midnight mass to 10:00PM. In the 1960s the Catholic Church changed services from Latin to English. What is true and fixed one minute or moment in time will change tomorrow. Everything is dynamic, nothing is static.

If a District Attorney says, "we have never done it that way," I say, "well maybe now is the time to change." The government has policies, the Church has policies, and many corporations have policies. Rules, written and unwritten, observed and not observed are all subject to change. This year I have shown multiple people that just because you say (or your company states) this is the way it is, or this is the way it has to be, or this is the way we have done it for years, does not mean that is the way it will be, right now in this particular case or situation.

Water shapes its course according to the nature of the ground over which it flows; so in wartime there are no constant conditions. Sun Tzu

4. You have to move to progress. I get calls all the time. Sometimes from people not happy with their current lawyers. Often those lawyers did not file any motions, and did not move cases to suppression hearings in advance of trial. Even though we are in the defense game, you have to play offense as well. DWI cases are special in that waiting and hoping for what I call a Rambo victory by attrition is not a likely scenario. Remember in movie First Blood when Rambo was able to survive out in the wilderness. He was able to withstand the elements (the weather), able to forage and find food, and to create shelter out of garbage. He was able to outlast and outplay his pursuers. In survivor terms it was a battle for victory by attrition.

I have seen and heard of defense lawyers prolonging DWI cases for years in the hopes of getting a deal. Just one conference after another. This is more common with older lawyers. It is a civil strategy as well. The "Wear the Bastards Down" technique. Maybe that game plan will work with a drug case, or maybe that will work with a case involving civilian witnesses to a crime. I do not subscribe to that theory. Move, move hard, move fast, be proactive, and strike points. In other words, build a case defense, have a strategy, and attack the evidence. You cannot attack anything on your back. Make a Full frontal assault at the State's case, put them on the defense.

There has never been a protracted war from which a country has benefited.

One defends when his strength is inadequate, he attacks when it is abundant.

Thus, though we have heard of stupid haste in war, cleverness has never been seen associated with long delays. Sun Tzu