Getting Off a New York DWI

Well this is my 100th blog posting since I began my DWI blogging. Because I have taken a long summer haitus from writing I am filled with inspiration and ideas. I get calls all the time, just last week I got one of those 3 AM calls, yes, nothing like a 3 O'clock on a Saturday morning to shock your system... hello.. my daughter...was arrested... this was not the "should I take the breath test?" calls, it was the post DWI arrest now what? phone calls from a concerned parent.

I do my best to launch into explanation mode (hard to do half asleep) and tell her to have her daughter call me in the morning (Sunday)... I go back to sleep... my wife is very understanding thank G-d... 10 minutes later...another call..."I have a few more questions..." Meanwhile none of this is within the context of the hour, in other words, people sometimes expect me to be waiting by the phone and always ready, when it is necessary I am but sometimes things can wait.

Which brings me to my main point today, what is GETTING OFF,

in common parlance (as in parlez vous = you speak) means...

Not having any charges, or having them dismissed by the District Attorney or Judge, or being found not guilty of everything...

First, how common is this? Not common, but it can happen. If there is no PC (Probable Cause) for a car stop then all the "fruits" of that stop ie. the breath test are "poisoned" Attorneys call this the "fruit of the poisonous tree." PC in New York is a legitimate reason for a stop, a factual traffic violation. We can also raise issues concerning PC to make an arrest but this is usually a small hurdle for the Police to surmount with the stop cop talking about odor of alcohol, slurring of speech, bloodshot eyes, etc. Remember that the DWI common law charge, VTL 1192 (3) is based on the OPINION! of a police officer.

Second, District Attorneys make offers but usually do not let people completely OFF of all charges. It is a ridiculous fantasy. It bothers me when people call me stating that a lawyer or law firm "promised" and/or "guaranteed" them a particular result. It is unethical and unprofessional to ensure a result. I make reasonable predictions and show usual options but to do more in the initial stages (without all the paperwork, police reports, breath test records, etc.) is practically impossible. My promise is to always do my best. I had one attorney locally promise to get a son's client OFF for $5,000 on a 0.19 Aggravated DWI. I told her without any discovery, without a suppression hearing, and without a trial this was highly unlikely. But people want so badly to believe in a FANTASY. Maybe it's human nature, but if it sounds too good to be true, it probably is BS.

Third, the REALITY in this particular situation is that a Judge cannot accept a plea to reduce a Aggravated DWI (DWI per se with a BAC (blood alcohol concentration) of 0.18 or more) to a DWAI (Driving While Ability Impaired), a traffic offense, without strong reasons. To further believe that a Judge or District Attorney would dismiss the charges outright would equate with winning the lottery or being struck by lighting.

Fourth, the big win in New York State is a reduction to a DWAI because of two reasons:

1. the proof required is "any extent of impairment," a small burden of proof compared to intoxication (DWI, which requires mental and physical incapacity (to a substantial extent) to operate an automobile as a reasonably prudent driver)

2. since DWAI is a traffic offense you get a bench (judge) trial, no jury, and many judges feel that this outcome is more than fair and just compared to the DWI charges.

So please exercise your RIGHT to not accept anything blindly, and to be skeptical of anyone offering fast, easy, and cheap solutions. A great analogy is that almost all of the contestants on the show "The Biggest Loser" including the "winners" put all their weight back in the months after the show was over. THE REALITY: Long term "healthy" weight loss requires a lifetime of work and lifestyle changes it is not going to be accomplished with a short term FANTASY program.

So many things to talk about for September, 2010:

1. We have a new ignition interlock law (effective August 15, 2010), and IIDs have many issues and the implementation of them (monitoring) has been a nightmare for many counties.

2. We have new forensic studies that make our "one" breath test state even more suspect and in the words of my kids "sketchy."

3. New York Law is being challenged. Specifically the admission of the breath test calibration and simulation solutions records into evidence at DWI trials absent their certifiers appearance at trial. These are sixth amendment confrontation clause issues that have been raised nationally by the Supreme Court, and are now being raised locally by attorneys like myself.

So we are back or off to a new start, as a new school/college term is underway, and we are all learning.

The New York DWI is a Two Headed Monster

In New York State if someone does (as in takes) the breath test, more accurately known as the "chemical" test back at the station then they will be charged with two counts of DWI.

1. DWI Common Law VTL 1192 (3): The government must prove (beyond a reasonable doubt) that you (the operator) were incapable (to a substantial extent) of operating the automobile both mentally and physically as a reasonably prudent driver. This usually is through the stop officer's (the arresting officer) testimony concerning your driving, behavior, appearance, testing, odor, etc. In other words, his "subjective" opinion.

2. DWI Per Se VTL 1192 (2) A BAC (Blood Alcohol Concentration) of .08 or higher or Aggravated DWI Per Se VTL 1192 (2) (a) A BAC of .18 or higher. The government needs to prove (beyond a reasonable doubt) that the breath test was given within 2 hours of your arrest, was properly administered, by a currently licensed BTO (Breath Test Operator), using properly mixed chemicals, with a calibrated and maintained breath machine. This of course is an indirect measurement of blood alcohol via a breath measurement.

The two most common machines are the Datamaster DMT (used by town, village, and city police depts.) and the Draeger Alcotest (used primarily by the N.Y. State Police). These machines are accepted by the Courts as approved for BAC testing.

There are various ways to attack both the DWI counts but remember that if you took the test it will need to be dealt with and can not be overlooked by your attorney. The per se count becomes the primary target because it is a number that the prosecution will mention again and again.

I believe that a shotgun approach to arguing that all breath testing is inaccurate and unreliable (fraught with error) will usually fall on deaf ears. A focused and detailed strategy is the most effective way to defeat each count.

Depending upon the specific facts of each DWI case arguments can be waged against:

1. Whether the procedures and protocol of breath testing were adhered to?

2. Whether the machines were calibrated in a timely manner?

3. Whether the machine in question had any recent repairs or issues?

4. Whether the chemicals were properly mixed and/or expired (out of date)?

So records need to be examined carefully and potentially subpoenas must be issued against the police to get ALL the machine records. To get police records your attorney is going to need to get Judicial Subpoenas (issued and approved through a Judge). With a lot of work often the ugly truth comes out, and the breath test's validity becomes an issue of doubt.

In recent cases, I found that the State Police had written in the wrong chemical expiration date. The chemicals were expired days before my client's breath test. After I filed my motions the Judge was compelled to throw out the test, and the prosecution's case along with it. In another case the machine had frequent break downs, and parts replaced concerning the same issue, the machine would not accept a breath sample. My client was charged with a refusal because the police said she wasn't trying (blowing) hard enough. That case was also thrown out after I subpoenaed all the machine records, and brought to light the machine's problems.

Nothing of any value is easy, cheap, or speedy. That first case went to multiple hearings and motions. My client was relieved when the nightmare was over but during the process had many uneasy days and nights. To me the DWI is a two headed monster with one head uglier than the other.

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.