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.

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.