Posts Tagged ‘dwi’
Dwi
Sunday, September 25th, 2011
Defeating the New York DWI Refusal Case
My typical day begins something like this, “Hi, I got arrested for a DWI last night?” and my response is usually, “let me ask you a few questions first to help give you some guidance and direction.” The reason for my first couple of questions is to tell me exactly what “type” of DWI case we are dealing with.
DWIs like people come in different shapes, sizes, and packages. DWIs can be:
1. With or without a traffic stop, ie. maybe the police were called to the scene to investigate an accident, or a person asleep behind the wheel, or a BOLO (be on the lookout) for an erratic driver, called in from a tip
2. With or without a breath test (the chemical test back at the police station or barracks)
3. With or without prior DWIs or DUIs or DWAIs or ADWIs
4. With or without a New York State Driver’s License
5. With or without a Sobriety Check Point
By no means is this list complete. There are many different DWI situations and combinations.
The Chemical Test Refusal DWI Case is unique for a number of reasons.
First the positives of the refusal case:
1. The police and prosecution do not have a breath test BAC to prove their case.
2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >.
3. The prosecutor can only charge VTL 1192 (3), “Common Law” DWI.
4. The prosecutor usually only has one main witness, the arresting officer.
5. The prosecutor must prove that “you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver.”
6. They must prove this legal burden of “intoxication” beyond a reasonable doubt based upon the police officer’s observations, and field testing, if any.
7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.
8. The DWI Defense Lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor.
9. The cross examination can cover the stop, the arrest, and the field testing.
Second, the two main negatives of the refusal case:
1. You will have NO license of any type (conditional or hardship) while your criminal case is pending. NOTE: unless you win at the administrative refusal hearing (unlikely) or the officer does not show for the hearing and it is re-scheduled.
2. The jury will get an instruction from the Judge that they may infer a Consciousness of Guilt from your choice to not take the chemical test.
Personally, I like Refusal cases because they offer opportunities to challenge the purely opinion evidence of intoxication. The opinion of the officer is an opinion based in bias. He or she will want to support their decision to stop and arrest you. Their instructing, demonstrating, and evaluating you on the Field Sobriety Tests or (Roadside Agility Maneuvers) can usually be shown to be unfair. If we can show you were coherent (understood the officer’s directions, instructions, questions) then providing other reasons for your bloodshot eyes, slurred speech (or impairment), and lack of balance create REASONABLE DOUBT in the minds of the jury as to your intoxication.
About the Author
Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer and my mother a waitress. I now live in Ithaca, NY with my wife (of 20 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing DWI defense law within the Fingerlakes Region of New York State.
www.ithacadwi.com
“Question Authority”
2nd DWI for drunk driver who killed 911 dispatcher
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Green Marble Pastry and Cutting Board – 18 x 24 Inch $165.95 Marble is the ultimate pastry making surface. It is perfectly smooth, it never absorbs fat or moisture, and is always cool and dry. Many bakers chill the marble board by sliding it into the refrigerator or freezer before rolling a finicky dough like puff pastry, and then put the slab and the pastry back in the fridge the instant the dough softens. The marble will always be ready for its next roll … |
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5 Months and a Wake-Up! $16.76 New – After receiving a judgement to do unexpected prison time for a second-offense DWI, Aquilla knew that this world she had never experienced was bound to bring about some permanent life changes not only for her, but for those around her as well. Could her eclectic personality survive prison life, or would she succumb to her inner demons? Take a journey with her as she narrates through this hilarious, yet inspirational story of ups and downs, fact and fictions of women in the prison system. Pr |
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5 Months and a Wake-Up! $16.76 Used – After receiving a judgement to do unexpected prison time for a second-offense DWI, Aquilla knew that this world she had never experienced was bound to bring about some permanent life changes not only for her, but for those around her as well. Could her eclectic personality survive prison life, or would she succumb to her inner demons? Take a journey with her as she narrates through this hilarious, yet inspirational story of ups and downs, fact and fictions of women in the prison system. P |
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A Bit of Tragedy $17.98 A Bit of Tragedy is an off-beat humorous but sobering story about the life of Daryl Cross, a minister’s son, as he recounts his last three months of his drinking life. Careless drinking had pushed him into a whole new level of alcoholism, and he was becoming so sick with the disease it pushed him to a point where he had to make a decision between life and death. As an alcoholic, bad decision making had built up over time too that kept him drinking when dealing with relationships with those in his world. Drinking had also kept him blind to what was happening around him during his drinking years that eventually turned his life upside down when he learned he wasn’t who he thought he was but someone totally different, and the story ends on a small twist of a mystery.He went out drinking one Friday night after a silly fight with his wife and that long night ended when he was arrested for DWI. Unknowingly he was born into a new level of alcoholism, hallucinations and irrational thinking had settled in and his wife, Karen, kept him at bay from her when she suspected he had an affair with a strange woman in the parking lot of a bar. Then her friend, and his best friend’s wife, Betsy, used his confusion he was in to seduce him and alcohol to keep him silent. The second time they had an affair Karen caught them. That put Daryl in trouble with his family when Karen reported the events of their recent lives to them at dinner that sent Daryl into anger and hopelessness and more drinking. His brother David blamed him for their dad’s death after a quarrel between their families at their last dinner, and the problems with David and Daryl continued that pushed Daryl over the edge of madness whenthey finally clashed over Daryl’s wife, Karen, and David finally revealing who he really was; his family has been hiding from him for years. |
