Using a Driver's Mental State to Disprove a NYS DWI Refusal?

Gotta Love Joaquin, from latimesblogs.latimes.com

Recently Coke launched an advertising campaign built on the power of their brand's OPTIONS. You can have your cake AND eat it too so to speak. The commercials highlighted people asking for things by using the "AND" word as a question? Clever, and a reminder that laws are written and applied using the same principle.

In the world of NYS DWI defense the word "and" has equal power and significance. Under our case law (remember NYS is a common law state) the definition of intoxication is defined, interpreted, and applied as "physical and mental" incapacity to operate a car as a reasonably prudent driver. The power of "and" strikes again.

The two prominent cases (without BACs) on how to define "intoxication" in NYS DWI are People v. Cruz, 48 NY 2nd 419, and People v. Bradford, 408 NYS 2nd 1013. Both these cases shed some much needed light on how the Courts apply this legal standard "to and in" the real world of mental and physical human conduct (behavior).

Without a BAC (blood alcohol concentration) from blood or breath a NYS DWI will need to be proved by the driver's behavior.

Three elements have resulted in convictions for DWI Refusal Cases:

1. Both have reckless driving that either resulted in an accident or could have (substantial likelihood)

AND

2. Both have inability to lack of physical coordination (inability to balance, inability to walk steadily)

AND

3. Both have lack of a rational mental state (can't answer questions intelligibly)

My focus in many Court hearings is on showing that my client was able to walk, talk, answer questions, and follow directions normally.

Rational mental state is a critical factor in disproving intoxicated operation and opening the door for a plea to impaired driving (VTL 1192 (1) DWAI Driving While Ability Impaired).

To assess my DWI cases I follow the same line of thought and reasoning as if assessing a patient's mental status. My Chiropractor days forever emerge in my proving a client's rational mental state at the time of driving, and disproving a DWI.

The Mental Status Exam

 The MSE is a clinical assessment process. It is a structured way of observing and describing a patient's (driver's) current state of mind, under the following categories:

1. Appearance (person and clothing)

Physical aspects such as the appearance of a patient (the driver), including manner of dress and grooming, and odor. Are they disheveled? Unkempt? Have they been rolling on the sidewalk/grass?

2. Attitude

This refers to the patient's (driver's) approach to the interview process and the interaction with the examiner (the police officer). Were they cooperative vs. combative, belligerent, angry? Or were they polite, respectful, and cooperative?

3. Behavior

The patient's (driver's) eye contact and gait (ability to walk). Did they establish eye contact? Walk, talk, and respond normally?

4. Mood and Affect

Mood: neutral, euthymic, dysphoric, euphoric, angry, anxious or apathetic (responsive vs reactive)

Affect may be described as appropriate or inappropriate to the current situation

Was their mood and affect normal to the police investigation?

5. Speech

Was their speed understandable and normal? This is the production of speech not the content of their speech.

Police love to state in their reports (narratives) "slurred" speech BUT was their speech unintelligible? 

Break down their speech into the following categories:

·         Rate of speech: Rapid, slow, ordinary

·         Flow of speech: Hesitant, expansive, rambling, halting, stuttering, lilting, jerky,

long pauses, forgetful.

·         Intensity of volume: Loud, soft, ordinary, whispered, yelling, inaudible.

·         Clarity: Clear, slurred, mumbled, lisping, rambling, relevant, incoherent.

·         Liveliness: Lively, dull, monotonous, normal, intense, pressured, explosive.

·         Quantity: Responds only to questions; offers information; scant; mute; verbose, repetitive.

6. Thought Process/Pattern

Was their thinking in proper quantity, tempo (rate of flow) and form (or logical coherence) of thought, retarded or inhibited thinking?

Thought Patterns

·         Clarity:  Coherent, incoherent, cloudy, confused, vague

·         Relevance / logic:  Logical, illogical, relevant or irrelevant to topic being discussed.

·         Flow:  Excited, flight of ideas, tangentiality, poverty of thought, word salad, clang associations, slow, normal or rapid reactions to questions, doubting, indecision, loose association, blocking, perseveration, spontaneous, continuity of thought.

7. Thought content

Were their responses to questions, instructions, and directions appropriate?

8. Perception

There are three broad types of perceptual disturbances: hallucinations, pseudohallucinations and illusions.

Was there any distortion of the patient's (driver's) sense of time and place?

9. Cognition

What was the patient's (driver's) level of alertness, orientation, attention, memory, visuospatial functioning, language functions and executive functions

 Alertness is a global observation of level of consciousness i.e. awareness of, and responsiveness to the environment, and this might be described as alert, clouded, drowsy, or stuporose (in a stupor, daze).

Orientation is assessed by asking the patient where he or she is (for example what building, town and state) and what time it is (time, day, date).

Attention and concentration are assessed by the serial sevens test (or alternatively by spelling a five-letter word backwards), and by testing digit span.

Memory is assessed in terms of immediate registration (repeating a set of words), short-term memory (recalling the set of words after an interval, or recalling a short paragraph), and long-term memory (recollection of well known historical or geographical facts).

Visuospatial functioning can be assessed by the ability to copy a diagram, draw a clock face, or draw a map of the consulting room.

Language is assessed through the ability to name objects, repeat phrases, and by observing the individual's spontaneous speech and response to instructions

10. Insight

Ability to understand and follow thought patterns and now where things are going. Proper anticipation and participation. 

11. Judgment

The patient's (driver's) capacity to make sound, reasoned and responsible decisions.

We as DWI defense attorneys must overcome the hurdle of dis-proving Lack of rational mental state by exploring on cross examination of the police each of these areas.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic

Attorney and Counselor at Law

Ithaca, NY 

607-229-5184

http://www.ithacadwi.com

Insurers Playing a Numbers Game Ahead of Insurance Discussions

Toronto Personal Injury Lawyer Albert Conforzi: The Insurance Bureau of Canada (IBC, the association that represents Canada's insurance carriers), took out a full page ad in the Toronto Star on Saturday, wherein they lined up their major talking points for the next round of insurance discussions.

By law, a 5-year review of the auto insurance system will start this year. The 2008 review resulted in the September 2010 reforms, the effects of which are still not completely understood. I blogged about the ramifications of the 2010 reforms a couple of weeks ago.

Among a number of astounding assertions, the Star ad suggested that Ontario's 2011 accident benefits claim payouts averaged $28,978, while in Alberta they were $3,568. While the figures themselves might be correct, what they do not reveal is that the Ontario figures include payouts made on claims arising from the pre-September 2010 legislative changes.

In my experience, one thing that insurers hate is someone telling them that they might have made  a mistake.

Those legislative changes reduced accident benefits payouts for all minor injuries to a maximum of $3,500, including all assessment costs (my colleague Alex Voudouris provides a good examination of the minor injury issue here). 80-90% of all claims made after September 2010 have been classified as minor injuries by insurers. Therefore, the use of pre-2010 claims payout numbers by the IBC is very misleading.

The ad also alleges that, "Lawyers challenging many cases has led to a backlog of 13,000 claims."

Well.

The flip side of that coin is that insurers, by wrongfully denying legitimate claims, lead victims to ask lawyers to help fight for their rights.

In my experience, one thing that insurers hate is someone telling them that they might have made  a mistake. The harsh truth is that a cavalier denial of a claim by an insurer, and an equally cavalier refusal to reconsider that denial, can ruin someone's life. It is only when lawyers shed light on such cases that victims have a chance at justice.

Insurers are in business to make money. Paying claims costs insurers' money. These types of ads demonstrate that insurers, through their mouthpiece organization, will say or do anything to get to the point that they can collect premiums and not have to pay claims.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Mixing Alcohol with Diet Beverages Can Lead to Higher BAC DWI?

Don't Blame it on the alcohol baby,,, from bartending-school.com

"I knew it wasn't the Jack but the (diet) coke that got me."

Jack Daniels or his brother Jim Beam both go well with coke but does it matter if you mix them with diet coke or regular coke?

A new study was just released that showed that those that mixed their alcohol with diet drinks had a higher BAC (blood alcohol concentration) sooner than those that mixed with a sugar drink.

Why? Because sugar slows down the absorption of the alcohol. The alcohol will stay with you longer. This is not always a good thing. I remember a bad birthday with Jack and Coke and hugging the toilet bowl, my loving room mates took pictures. That was my last mix, I swore off adding sugar with alcohol.

Sugar takes longer to digest so the alcohol rises in your blood stream more slowly. A slow rise of your BAC. see article here:

http://www.sciencedaily.com/releases/2013/02/130205162524.htm

But diet drinks have NO sugar and nothing to hold back the fast rush of alcohol into the bloodstream. Sometimes in defense of a DWI we argue what the BAC was at the time of driving not at the time of breath or blood testing. Remember it is driving WHILE intoxicated.

Diet Coke, my wife's favorite, from elitedaily.com

I believe that all this creates a double whammy of sorts for women drinkers for two reasons:

1. They will likely have a higher BAC with the same amount of alcohol as the same weight man. They have a higher fat composition to muscle based upon genetics, higher water weight = higher concentration of alcohol.

2. Women tend to drink more diet drinks than guys.

On top of all of that if they are going through their monthly cycle their BAC may also be affected by that as well. Higher body temperatures yield higher BACs with breath testing, even by a few degrees.

Just another thing to consider when we look at and investigate New York DWI defenses.

Lawrence Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law
607-229-5184

http://www.ithacadwi.com

The Oscar Pistorius Murder Case

Toronto Personal Injury Lawyer Albert Conforzi: The Oscar Pistorius case murder investigation is grabbing headlines around the world. He stands accused of murdering his girlfriend, 29-year-old model and law graduate Reeva Steenkamp. Today, he appeared in court at a bail hearing.

Originally, the reports had Pistorius (famously known as the Blade Runner) mistaking his girlfriend for an intruder and shooting her dead. When heard like that, the story is tragically plausible. Don't think so? Consider the case of another South African athlete, former rugby player Rudi Visagie.

Some years ago, Visagie awoke in the dark hours of the morning and thought his daughter's car was being stolen. He fired a shot out his window and hit the driver. Moments later, he found his daughter dead behind the wheel. She had been on her way to surprise her boyfriend on his birthday, but hadn't told her parents the plan.

So yes, mistaken identity can happen, with lethal results.

Pistorius in court for a bail hearing. Photo by Stephanie de Sakutin/AFP/Getty Image

As the Pistorius investigation has unfolded in the last few days, however, it hasn't looked good for the defense. From the National Post:

Oscar Pistorius told a packed courtroom Tuesday that he shot his girlfriend to death by mistake, thinking she was a robber. The prosecutor called it premeditated murder.

The double amputee said in an affidavit read by his lawyer at his bail hearing that he felt vulnerable because he did not have on his prosthetic legs when he pumped bullets into the locked bathroom door. Then, Pistorius said in the sworn statement, he realized that model Reeva Steenkamp was not in his bed.

“It filled me with horror and fear,” he said.

He put on his prosthetic legs, tried to kick down the door, then bashed it in with a cricket bat to find Steenkamp, 29, shot inside. He said he ran downstairs with her, but “She died in my arms.”

The presumption of innocence and guilt beyond a "reasonable" doubt are fundamental tenets of a modern criminal law system. Still, as I read the stories on this murder, I began to wonder how believable it was that a man could not know whether his girlfriend was beside him in bed, and further, what he thought a thief would be doing in his bathroom in the middle of a break-in?

Will the prosecution's version that this was a premeditated murder be proven? Will Pistorius' celebrity status hurt him or help him in the proceedings? Time will tell. Hopefully the whole truth will come out.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Bloggers Rally to Defense of Defamation Defendant

I have previously written about Crystal Cox, a self-styled investigative blogger, who found herself on the receiving end of a judgment for $2.5 million after she posted caustic comments about a bankruptcy trustee.  You can find the prior post here.   One aspect of the District Court's opinion which raised my eyebrows was the court's stingy application of the media privilege.    Under the District Court's view, most bloggers would not be entitled to some of the protections available to the professional media.   

Apparently I was not the only one who thought this to be a strange result.   UCLA Professor Eugene Volokh, who blogs at the Volokh Conspiracy is representing Ms. Cox on a pro bono basis in her appeal to the Ninth Circuit.   Scotusblog.com, the leading Supreme Court blog, and the Reporters Committee for Freedom of the Press have weighed in with amicus briefs.    

In an unusual twist, the Plaintiff sought to have the Sheriff levy upon and sell the Defendant's right to appeal.   By auctioning off the right to appeal, the Plaintiff could effectively insulate its judgment from judicial review.   Prof. Volokh successfully obtained an order from the District Court blocking this relief.   You can read about it in his own words here. 

I am pleased that the Plaintiff's nefarious tactic was rebuffed and that there are some serious amici weighing in.   This case raises important issues about the First Amendment protections applicable to the citizen media.

The News Gets it Wrong or The Real Deal on David Diehl

I read stuff online all the time and so often they get it wrong. Misinformation is rampant even amongst lawyer websites. Understanding the law is confusing enough for lay people.

I really believe Diehl got a great deal because the fines on a DWI in the NFL would have amounted to $50,000 plus. Whereas the lesser offense of DWAI is non criminal, and probably not penalized the same way. Diehl got what is called an "alternative" sentence. These are sometimes given if someone has more to lose than the "average" person, as in doctors, military personnel, engineers, government employees with background clearances, etc. Is it fair? I don't know, maybe, if someone spends 10 or 12 years investing in a specialized career or profession or occupation I do think they have a lot more to lose than the guy or girl from Mickey D, that is the truth. Like it or not.

I had a Sgt. with a bad DWI, and I negotiated a special deal based upon his upcoming deployment, tours of duty, and his exposure to a huge military punishment. I thought he deserved for his service but others may argue why the special treatment. The same thing for a bank manager and a college professor. Their careers would have been over and done, a lifetime of great effort completely wasted.

So a Pro football player, David Diehl crashed his car in Queens while DWI.

He was charged with New York aggravated DWI plus plus,
meaning he had a BAC (blood alcohol concentration) over over .18
Regular/standard DWI in ALL the 50 states is .08 BAC

1. Ok, so first off, New York only has DWI (Driving While Intoxicated), we do not have DUI.
2. He got a real deal because even though he pled guilty to Agg DWI (a criminal misdemeanor) and DWAI (Driving While Ability Impaired) (a traffic offense) the Court agreed to a deal where the prosecution is going to drop the Agg DWI IF he stays clean and sober for 6 months.
3. He will be monitored by a SCRAM bracelet (which monitors skin perspiration for alcohol), three Court hearings, drug/alcohol counseling and urine checks, and NO driving during this time period.

So in the final analysis he won't lose tens of thousands in NFL fines, etc. He won't have a lifetime criminal record and he is getting the help he truly needs. That is win-win-win for everyone.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

607-229-5184
Ithaca, NY

http://www.ithacadwi.com

Ithaca Lawyer Overcoming Demonization of the Defendant by Humanizing the Accused

Are We Devil or Angel?  from 123rf.com

The Problem: Is it ALL Just Black and White?

People love moral imperatives. Which are the: "this is good" and "this is bad." He is good and she is bad or she is good and he is bad. Placing these absolute labels on people, things, or events doesn't work well in the real world. In reality land (right next to reality world) things, people, and events have two sides. Blessing and curse usually come together. Our weaknesses are also our strengths and our mistakes (failures) so often turn out for the best.

Infantile minds or immature mindsets may disagree with me but I have been around long enough to see this play out. I can tell you don't be too quick to judge a thing or a person. Getting to know something or someone "fully" gives you the truth. Call it a holistic or a complete view but looking at the glass of water as half- full or half-empty is not the best approach. I don't want pessimistic or optimistic, I want realistic. The actual is the real. Labeling is not the truth. It is a perspective. A viewpoint. It is usually biased based upon your upbringing, culture, and family role models.

Are Defendants Demons?

So why are we here? Because prosecutors, judges, and sometimes even the probation department may seek to DEMONIZE (label) defendants as bad. They may forget that behind the criminal act or actions lies a person. This defendant is at their core a human being who for many reasons may have went off the track, had a lapse in judgement, and did something we would never do? OR would we?

I am being facetious now but you are starting to get my point. We are all people under the skin with hundreds of character traits. Noone is perfect, (well maybe my wife) we all make mistakes at one time or another.

How best to Defend a person? 

There are legal defenses, then there are factual defenses, and then there are equitable defenses. Why do so many people plea guilty to something (over 93%)? Because they are guilty of something. Is this a big surprise? Getting over this juror bias of guilt based upon being charged with a crime is a hurdle.

Sometimes all we (without legal and/or factual defenses) have are equitable defenses. If someone is on the second DWI or third drug/alcohol related offense, sometimes limiting their exposure to years of probation supervision or a long jail term or prison term is the big win. Sometimes getting them the help they need is the true home run.

I have used the following methods to help my clients in many Courts over past fifteen years. To the degree it is tailored and specific to the client will directly relate to it's effectiveness as a strategy, and a reality. My disclaimer: just because it has worked for me and some clients over the years is of course NO guarantee of future success but given my druthers I believe in my heart of hearts that it is a great tool in any attorney's toolbox.

The Solution to Demonization: HUMANIZE Clients Prior to SENTENCING

I believe the best way to sway and to persuade those making a decision on punishment or rehabilitation (post plea) is through STORY. Before a client is to be sentenced, the Judge needs to know this person's story.

STORY is best brought out using a SENTENCING MEMORANDUM

This is a chance for the lawyer/advocate to EXPLAIN and HUMANIZE their client:

The story has many chapters. The story has details. The story has human interaction. Everyone has a story and everyone enjoys a good story (if it is told well). The KEY here is told well. Boring people tell boring stories.

What is this person's story? Where did they start (come from)? What's their background?
What people have been a part of this person's life? What roles have they played (husband, father, son, brother, uncle, cousin, nephew)? How have they played these parts? What have these people meant in the client's life? What good things has the client done? What activities have they participated in? How have they helped their community, their family, and their friends over their lifetime? What led the client to this criminal act? What has the client done since their arrest? Have they worked on themselves? Have they gone to mental/drug/alcohol counseling/classes/workshops/therapy/treatment? Does the client have a plan and goals for their future? What do they see themselves doing in the immediate future?

STORY GOES to the HEART NOT the Head

Attorneys must do this for their clients to receive a balanced sentence. use of Client Story is the best way to influence. It is the oldest and most effective way to get to the heart of people. Therein lies the compassion we seek in those who job is to Judge us.

Justification and explanation will try to influence and persuade the head. This is a lost argument. Fair sentence don't come from logic and reasoning. They come from people being human. People are moved through emotion.

The sentencing memorandum brings a chance for humanization and compassion. Those who are accused deserve not only a second chance at redemption but also an opportunity to have their story heard for maybe the first time.

Lawrence Newman, D.C., Esq.

504 North Aurora Street
Ithaca, NY 14850
607-229-5184

http://www.ithacadwi.com