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.

You Have Rights? Just Not So Much if You Are a College Violator

I practice in an area of numerous Colleges, Universities, and Schools of higher learning. Beautiful and now cold Ithaca, New York. Go 50 miles in any direction and you will hit pay dirt (lots of little private colleges).

Why do they put all these great schools so far from civilization? Is it the cheap real estate? Just saying...

Anyway, the Isolation sometimes breeds boredom. This Boredom leads to mischief which potentially leads to trouble. Trouble can be in one of two forms (there is a 3rd but I don't do relationship or mental counseling) criminal charges and/or administrative ones. Some schools like TC3 (Tompkins Community College) will suspend you (for a term) for a DWI. Some school police (campus po po) will sometimes file an administrative complaint against you rather than a criminal one.

Is this better?Is this worse? Well it's both.

1. The level of proof to demonstrate your guilt is higher on a criminal charge: Beyond a Reasonable Doubt
2. The level of proof to demonstrate your guilt is lower on a campus violation: Preponderance of the evidence (a little bit more likely than not, or 51% to 49% that it is true)

Sometimes it is better to have just a criminal charge, as in possession of marijuana. Then you get Full rights, an attorney, Court, Judge, etc. I once went in to defend my 6th grader, she was accused on putting holes in a cork board (yeah I know a cork board). There I was in front of four teachers and the principal. She was guilty until proven innocent. What BS! It was like the Salem Witch Trials. Apparently she was placing her pencil into prior holes (it was a cork board). I left them a piece of my mind and a short rendition of the constitution. They were unwilling to even consider the possibility that the teacher was mistaken.

 Anyway, criminal charges (a violation) may be better than having to deal with an expensive and emotional draining suspension from school, IMO. Add it up: Dorm, Tuition, loss/waste of time and work. This is definitely not "Priceless."

Remember, Administrative Campus Violations have their own process:

First, an administrative judicial officer hearing. "One on One."
Second, if you would like an appeal to a full hearing, in front of a board. (multiple members)

You can present evidence (witnesses, letters, etc.) at these hearings. You can speak up for yourself, and your conduct.

BTW, at these hearings: NO Lawyers, NO lawyer letters, NO lawyer coaching (at least open and obvious) are allowed.

From the IC book (they are all very similar, I just happen to have their's handy)

 The presence of an attorney and/or written materials submitted by an attorney in representation of his/her student client is prohibited.

What to do? Generally, Do not give up. Defend yourself. Gather evidence. If not of your innocence (maybe you are guilty), then of your character, then of your past success (academically, personally, etc.), teachers/professors can witness to bolster you as an individual, they can also write letters on your behalf.
Take it upon yourself to "Read" your college's rule book on these hearings, fully understand their process/their procedures, and what they allow you.

BTW This is not to be construed as legal advice, every situation is different.

I believe you still have RIGHTS! Any time and any place in the USA. If you are accused of something.

I believe you must Confront your accusers. Confront the accusations. Bring everything into the clear light of day. There is too much to lose to just give up.   

New York DWI Conditional Licenses

New York DWI Hardship License Privileges

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.

Ithaca by Choice not by Chance

Did I choose Ithaca or did Ithaca choose me? I ponder that question often. Do we ever feel called to a place? I feel called to the two professions I have been privileged to practice. Not like a voices in my head ala Berkowitz kinda way but more like an intuitive feeling. You know that you know that something is right.

After years of journaling, I wanted a more authentic life. To me, that meant being in a more natural area (less asphalt more trees). I wanted a radical change of my environment. I was ready to escape suburbia, and big city practices. I was tired of the parking, the traffic, the disconnect, the running from place to place, the rat wheel, and the mindlessness.

Now not everyone gets Ithaca. It is not heaven, merely a nice city nestled here in the Fingerlakes. I can appreciate it in contrast to so many other places I have lived, and so many more places I have visited. Ithaca is merely relative. My closest friends advised a psychological evaluation when I told them I was moving here. Why would you leave the paradise of South Florida? Why would you leave all of this? The swimming pools, the hot weather, the resources, the simple flat roads, the brand new homes, the shopping, and the abundance of money. Why indeed?

Well it now almost four years later... and I can say that Ithaca can grow people the way that it grows flowers and plants, this is a fertile place both figuratively and literally. I could have only imagined what community really means and the communities that surround Ithaca encompass more than just land, they embody caring, I have never in my life met more down to earth, honest to goodness, authentic people, for better or worse who embrace who they are... warts and all!

The Good, the Bad, and the Ugly

I love the old westerns, and especially Clint Eastwood movies. My wife marvels that I am able to watch them over and over without boredom. They are simple, justice is quick and efficient, and I can relate to the code of respect. The people in these movies are usually very black and white, good and bad are easily discernible.

Recently, I was critiqued on Craigslist. It was not very flattering, but I guess if I can accept those testimonials that see me as saintly I must recognize that there will be those others who see me as the devil. You would be hard pressed not to know who I am, what I stand for, my education, my training, my experience, how long I have practiced, where I have practiced, what seminars I have attended, in fact I will make a bold statement, I am probably one of the most open lawyers or people online.

I am neither devil nor saint, although I have played both roles. For the record I take full responsibility for anyone who does not understand something I may have said. I believe that the communicator shall do his or her best to be understood and clear.

I primarily represent people for DWI cases, and these cases are difficult to defend. Some people come to see me with an expectation of "getting off" the charges. I have spoken before about the reality of "getting off" and plea negotiations. The truth is that 90% + of all criminal cases in this country settle by way of a plea. Pleas can happen after hearings or conferences or right before a trial. Everyone has the option of having a trial. They cost time and money. They may or may not be beneficial. Juries then decide guilt or innocence.

Cases are always viewed on their merits, on the evidence, on the proof. With DWI "charges" the government does not care how wonderful you are or that you have a job or that you have multiple degrees or if this is your first offense. All those things may be considered at "sentencing" but not for the "charging" of crimes. They (the prosecutors) are interested in whether or not they can prove a DWI (common law and/or "per se") beyond a reasonable doubt.

Generally, if your case has a breath test it is harder to defend than a case without a breath test (a refusal case). If your case has you falling down, driving on the wrong side of the road, hitting curbs, hitting guardrails, admitting to drinking 8 drinks, stating "thank god you got me," or falling asleep while being questioned, then you may have a "harder" case to defend.

Let's deal with reality, dropping your cell phone and hitting one mailbox, ok explainable, dropping your cell phone and hitting four mailboxes on three different streets, not so explainable. I deal with the not so explainable every day, and how much of it a jury can "buy"as in believe, is something most of us can only imagine or try to predict. I work within the facts of every case to come up with the best defense I can. Within the spectrum of cases I see and evaluate there are the good facts, the bad facts, and the ugly facts. Sometimes the good facts outweigh the bad facts. Sometimes I have DWI cases with no drunk (bad) driving. I have a speeding ticket or an expired inspection or bright headlights. Sometimes I have an improperly done breath test or expired chemicals or a person with asthma. Everything that can be looked at gets looked at. But I cannot turn a blind eye to bad facts, they will not go away.

It is a immature mind that thinks that attorneys can change the facts of any case. No matter how "ugly" the facts of a case are, I believe that everyone deserves to be treated fairly throughout the process. My job is to do the best with what is front of me.

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.

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

There is not much written online concerning the process surrounding New York State's system of determining who receives a sentence of probation for a misdemeanor DWI. It is a mystery to many. I believe as a DWI defense lawyer that uncertainty is a nightmare for those going through this process. In this blog, and the next I hope to explain the procedure in simple terms.

First, the vast majority of DWI cases as well as other criminal cases in this state are negotiated with pleas. The cases that go to hearings and trials have issues that need to be addressed by either Judges and/or Juries.

If the case is resolved with a negotiated plea then the District Attorney may or may not agree (as part of the plea agreement) to waive a PSI (Pre-Sentence Investigation). What that means is that the District Attorney may or may not be seeking a term of Probation as part of the final sentencing of the Court. He may be seeking probation for your DWI because of the results of your drug/alcohol evaluation, the amount of your BAC (Blood Alcohol Concentration) at time of your arrest, a DWI involving (property or people) damages, prior criminal history, prior history of drugs and/or alcohol abuse, your age, and driving history.

For all New York State DWI Misdemeanors Probation Terms are for Three Years.

NOTE: Probation could be terminated early (less than a three year term) by your attorney filing a Motion with the Judge after a period of "good" probation. "Good" meaning a period of time in which you have no problems, no committed offenses, and/or crimes, involving the use of drugs, and/or alcohol.

A PSI is where you are interviewed by the Probation Department (usually of the County's Probation Office in the city in which you live) to determine an appropriate sentence for the crime being pled to. NOTE: If you are from Out of State, Probation can not be recommended by the department because it can not be transferred to another state or country so it unlikely that probation will be part of sentencing. Unfortunately, since the Judge and DA can not give a term of probation they may seek some jail time.

Now the Court (The Judge) can still seek a PSI (Pre-Sentence Investigation) before rendering it's sentence because ultimately the Judge must agree to "the deal" struck between both sides (Counsel for the defendant as well as Counsel for the State of New York). This can add many weeks to the process between making a deal, and having a final resolution of the matter. Sometimes PSIs (and their final report to the Court) can take four to six weeks even though the actual interview usually takes less than an hour.

The way that it works is if after a final disposition (case outcome) by negotiated plea bargain if can go one of two ways:

If the Judge and DA both agree to a CD (Conditional Discharge) then there is NO Probation and no need for a PSI.

OR

If a PSI is ordered by the Judge then Probation department will contact the defendant and set up an interview. This is a "this is your life" type of interview and review. Probation is usually for people who need supervision. Supervision normally entails being watched over with random screenings and tests for the use of drugs and alcohol. It is also likely to include some type of drug counseling/rehab/treatment program and/or mental health counseling.

In my next blog I will detail what goes into a PSI report, and how a probation determination is made.

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.

Understanding New York DWI Mandatory Alcohol Evaluations: Part I

In November 2006 the New York State legislature stated that ALL alcohol evaluations and screenings for DWI cases must be performed by OASAS certified evaluators. OASAS stands for Office of Alcohol and Substance Abuse Services. You can google OASAS to find a certified evaluator and/or treatment provider in your county. Their website is very informative, and fairly easy to navigate.

Legally you must have a "screening" for alcohol abuse/dependency within 30 days of your initial appearance if you had a BAC (blood alcohol concentration) of .12 or higher on your chemical breath test. A screening is merely a written test, it could even be a true/false test.

The next step up in the process so to speak is an "evaluation" for alcohol abuse/dependency within 30 days of the initial appearance if you had a BAC (blood alcohol concentration) of .15 or higher on your chemical breath test. Some evaluators take one long session to perform an evaluation, while some could take up to four sessions to make an evaluation. Cost of these sessions runs about $80 to $90 per session. So one long eval might cost around $175 or four might cost up to $400. An evaluation is an "interview" with a counselor, and could (may or may not depending upon the evaluator) include a urine screen (NOTE: urine tests check for specific drugs while urine screens are general) for drugs. It is also common for the counselor to obtain "collaterals" from you. A collateral is contact information about people who know you and have seen your drinking. These people may or may not be contacted to confirm what you tell the evaluator. The theory is that people with drug/alcohol problems lie, and therefore these collateral sources would be a potential barometer of your truthfulness and/or sobriety.

The next step for the evaluator is to determine whether you are an alcohol/drug abuser and have an abuse diagnosis or you are chemical (alcohol/drug) dependent. This is a critical determination, and should never be taken lightly by anyone.

My problem (I have a great many issues with the process) with these evaluations is that they can be highly subjective. The evaluators opinions carry a lot of weight for the Court as well as the prosecutor and under the circumstances of an interview or interviews they (the evaluators) may not get the full ie. complete picture. I had one client who went to an evaluation and the evaluator decided on a year's worth of treatment for dependency because the client stated he drank more than 5 drinks at one time. BTW 5 drinks for a man or 4 drinks for a woman at one time is classified as a binge drinker. BINGE is BAD in the world of evals. Imagine if you will a year's worth of 2 to 3 times a week standing up and saying, "hello, my name is Bob and I'm an alcoholic," and you may begin to see the grim picture if you are truly a person without a problem. These sessions would be costly in terms of time and money but more than that unjust in my opinion.

In my next blog I'll discuss the differences between how counselors make an abuse diagnosis versus a dependency diagnosis in more detail.

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.