Sunday, May 21, 2017

Ithaca Corning DWI lawyer: LAW UPDATE--Court of Appeals upholds DMV regulations denying relicensing in NY



LAW UPDATE MAY 2017:
New York Court of Appeals
(the State's highest court)
upholds the 2012 DMV regulations
allowing them to take away your 
license FOREVER.

Hello all, I'm back to blogging.  It's been a busy few months, but this legal update was too important to not write about... 

At my practice, Larry and I get tons and tons of phone calls about DMV relicensing issues following a DWI conviction or multiple DWI convictions... especially since they changed the rules and increased the harshness of the consequences in 2012.  

The issue has finally been put to bed (after many years of litigation through the various levels of the state's courts) in the following case: 

Matter of Acevedo v. New York et al  (CLICK TO READ DECISION)

Since these (formerly) new DMV regulations went into effect in 2012, the biggest DWI lawyers in the state have tried to challenge them.  They have failed

To sum up, in 2012, the DMV got tough on DWI repeat offenders and increased the frequency and harshness of penalties for people who got more than one "alcohol-related offense" on their driving history.  

HERE'S the TEXT OF THE PENALTIES:  

Penalties for multiple offenders

New regulations took effect on September 25, 2012 that affect drivers with multiple alcohol/drugged-driving related convictions or incidents. The highlights of how these changes affect persons applying for a driver license after their license is revoked are provided below.

• Applicants with three or four alcohol/drugged-driving related convictions or incidents within a 25 year period, without a serious driving offense and whose revocation does NOT result from an alcohol or drugged driving conviction or incident, will be denied relicensing for two years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for two years. A serious driving offense is a fatal accident, a driving-related penal law conviction, conviction of two or more violations for which five or more points are assessed, or 20 or more points from any violations.

• Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, without a serious driving offense and whose revocation DOES result from an alcohol or drugged driving conviction or incident, will be denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock.

• Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, with a serious driving offense will be permanently denied a driver license, unless there are compelling or extenuating circumstances.

• Applicants with five or more alcohol/drugged-driving related convictions or incidents on their lifetime driving record will be permanently denied a driver license, unless there are compelling or extenuating circumstances.

• Applicants with two or more alcohol/drugged-driving related convictions or incidents within the preceding 25 years will be required to serve their entire sanction period (suspension or revocation) even if they complete the Drinking Driver Program (DDP) and will be required to submit proof of rehabilitation.

Most people that call us have 3 or 4 "alcohol -related offenses" in a 25 year period that deal with these DMV penalties.   

Basically, if you get 3 in 25 years, most of the time, you will have a 5 year revocation without any driving privileges and then 5 years of a conditional license with an ignition interlock device required on your car.  

If you get 3 in short period of time, like 10 years, then you could be facing a lifetime revocation of your license. 

If you get 4 in 25 years (or more), then you're facing a lifetime ban.  

(although I got a call this week from somebody who got 2 DWI's in 5 years with a Reckless driving conviction --and was facing a lifetime ban as well.  His driving history must have been pretty bad for them to do that--and under the law of this new case, they can do it!)

What people often don't understand, is that "alcohol-related offense" does NOT just mean a conviction for DWI or the lesser-included DWAI alcohol.   It can also mean any REFUSAL to take a breath test.  So, even if you had a great lawyer and you got a potential DWI dismissed after you refused a breath test, you can still face these DMV sanctions due to the civil breath test refusal. 

ALSO, the DMV doesn't JUST take into account your "alcohol-related offenses" when they figure out if they will give you a license or not... they look at your ENTIRE DRIVING HISTORY.   They will consider any tickets (speeding, cell phone, lane change violations, stop light violations, etc) and other driving offenses like reckless driving in conjunction with your alcohol history.  It's the whole thing taken together in the aggregate.  

WHAT DOES THE RESULT OF THIS CASE MEAN?

It means that the DMV has the legal right to do whatever they want to your license in NY.  They are the Judge, Jury, and Executioner when it comes to giving somebody their license back or taking it away in the first place.  All you can do is jump through whatever hoops they want you to jump through, and hope they give you another shot sometime in the future. 

When people call me and ask me: "what can I do?"  

I usually say:  "WAIT."  

The DMV is concerned about repeat offenders, and the people they punish are usually those that have shown they cannot be trusted with a driver's license.  Therefore, show the DMW over a long period of time that you no longer pose a threat to the general public.   That you've aged/matured, held a steady job, had a family or have been responsible in other areas of your life.  Wait 5 years or 10 years before you reapply (in the case of a lifetime ban).  Take alcohol classes, get treatment, and do whatever you can to prove you are not a "dangerous driver" anymore.  

Unfortunately, there is nothing an attorney can do about this particular issue at the moment.  Some of the best DWI defense lawyers have given it their best shot and the courts have decided in favor of the DMV.  Suing the state of NY or the NY DMV is not an option.

MY BEST ADVICE TO THOSE WITH 1 DWI (or more)... BE CAREFUL.  DRIVE SAFELY.

If you were convicted of ANY alcohol-related offense, including a DWAI (a violation --the lowest form of DWI in NY), be careful.  New York has decided that it will not tolerate DWI repeat offenders and the DMV has the power and weight of the government to strip your license and ability to drive.  

When I say drive carefully, I mean, no speeding, no tailgating, no cutting people off --etc. In New York, having a driver's license is a "privilege" not a right --so make sure that the state cannot take that privilege away from you.  Because if they do, there's not much you can do to stop it. 

I hope this post is helpful.  You're always welcome to call with questions.  

Best,

Mike Cyr




If you have questions about a DWI charge, criminal felony/misdemeanor charge or another violation in Ithaca, Cortland, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York, give us a call, shoot us an email, or fill out the form on our website:

607-229-5184

NEWMAN & CYR

Or find us online! 

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

*Attorney advertising




*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.

Saturday, February 4, 2017

Ithaca DWAI Drug lawyer: Elements of DWAI Drug driving defense in NY


ELEMENTS OF DEFENDING A DWAI DRUGS CASE IN NEW YORK VTL 1192.4

DWAI Drugs cases in New York are no joke.  These types of cases present unique challenges that must be dealt with appropriately from start to finish.  In NY, the police can use blood or urine to prosecute somebody for a DWAI drug charge (since breath is an ineffective measuring tool to see what's actually in your blood stream).  


WHAT ARE THE ELEMENTS OF A DWAI DRUGS CASE IN NEW YORK? (VTL 1192.4)


The most important case on DWAI drug charge analysis is People v. Kahn, 610 NYS 2d 701 (1994).  KAHN describes the specific elements of the DWAI drug charge and how each must be proved beyond a reasonable doubt in NY.  

These elements are broken down as follows (and each must be proved by Prosecutor): 

(1) The defendant ingested a drug.

(2) The drug ingested by the defendant is one proscribed by Public Health Law § 3306. (See, Vehicle and Traffic Law § 114-a.)

(3) After ingesting the drug, the defendant operated a motor vehicle. (See, Vehicle and Traffic Law § 125.)

(4) While operating his motor vehicle the defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug.

These elements may seem straight-forward, but they can be met fairly easily if the Defendant agrees to a blood test  (or if the drug is found on or near the Defendant when they're arrested).  The prosecution can also prove DWAI Drugs with a D.R.E. "Drug Recognition Evaluation" --which is a series of motor coordination tests given by a police officer with special training.

In KAHN, the Defendant was a guy who had traveled for several days from South Africa to New York.  He had taken a prescription medication called Dalmane aka Flurazepam (to help him sleep) on the flight.  He told the police he had taken the drug 2 days prior to driving.  He blew a breath test that was 0.00 BAC (no alcohol present), but he had some erratic driving and seemed out of it to police.  He provided a sample of his urine and it came back positive for benzodiazepin. 

The Defendant had a physician/toxicologist testify that the drug only lasts for 8-10 hours and has no effects on the person after that period.  They also testified that the dalmane gets broken down by the body into metabolites of benzodiazepin and stays in the body for up to 14 days... 

Basically, the KAHN prosecutor could prove 3 out of the 4 elements.   They proved that 1) defendant took dalmane, 2) dalmane was one of list of thousands of drugs on the health code list, 3) even though 48 hours had passed, defendant operated a car ... but they couldn't prove beyond a reasonable doubt that the dalmane impaired his ability to drive a car.

The toxicologist helped the case get dismissed by explaining that the dalmane would not be effective in the defendant's blood stream 2 days after taking it --and the benzodiazepin in his urine was explained by taking the drug up to 14 days prior.  The Court goes on to say that the only way to really know what's in somebody's blood is if you get a blood sample around the time of arrest.  

KAHN court says "To find criminal culpability upon the stricter standard of mere presence of a proscribed drug in the defendant's body, coupled with observations of the defendant's behavior, would, on these facts, fly in the face of generally accepted scientific fact within our medical community and, in our view, impermissibly strain the meaning of the statute."

In other words, without more proof of what was in the blood (not just the urine), it is not enough to convict on  VTL 1192.4.  In KAHN, the expert toxicologist witness for the defense made all the difference.  

DWAI Drug cases can be difficult to defend --but not impossible.


KAHN emphasizes that you have to examine each element individually in a DWAI Drugs case. It also shows the usefulness of having an expert witness testify on behalf of the Defendant in a blood or urine case. When dealing with scientific cases that involve blood, breath, or urine, knowing and understanding the science can be critical in getting a good outcome. Big words, medical terminology, and fancy sounding things like "drug recognition evaluation" need to be easily explained to a jury so that they don't get confused or caught up in the "impressive words" of a case and instead focus on what those things mean. Explaining things well can make all the difference in any case.

If you give a sample of your blood to police, we also need to ensure the defense preserves the right to have the sample independently tested --because the police forensics lab is not perfect and can make mistakes from time to time.  Getting a second opinion is rarely a bad thing (especially if you believe you were sober at the time of driving).

In conclusion, be smart about the drugs you put in your body prior to driving and make sure you understand the possible side effects you could experience.  If you get stopped and arrested for a DWAI Drug charge, our best advice is to retain a knowledgeable attorney as soon as you can.  Time is of the essence in DWAI Drug defense cases. 



BY MIKE CYR

Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.

If you have questions about a DWAI Drug charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Cortland, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:

607-229-5184


NEWMAN & CYR


Or find us online! 


www.ithacadwi.com


www.watkinsglendwi.com


www.facebook.com/ithacadwi


www.twitter.com/ithacadwi


DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 


*Attorney advertising





*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.

Tuesday, January 24, 2017

Ithaca Watkins Glen DWI lawyer: SCARY TRUTH -You're not entitled to Police Report until AFTER Cop Testifies in NY!


SCARY TRUTH:  You're NOT entitled to get your Police Report until after the Officer testifies in NY... (for real)!


This issue shocked me when I first started practicing in NY.   I'm a licensed attorney in Massachusetts, Maine, and New York.   Both Mass and Maine have pretty similar laws when it comes to getting the evidence against from a Prosecutor if you're charged with a crime.  They give it to you immediately -- when I worked in the Boston District Attorney's Office we used to give defense counsel a copy of the entire contents of our file at the very first time in court...

NOT IN NEW YORK.


ARCHAIC DISCOVERY RULES IN NEW YORK


Criminal Procedure Law 240.44 governs the issue we're discussing --when the defense gets any "non-confidential written or recorded statement...made by the person the prosecution intends to call as a witness at trial and which relates to the subject matter of the witness' testimony."   This is known as "ROSARIO" material.  People v. Rosario  9 NY2d 286 (1961).  

Basically, a police report is ROSARIO material in almost every criminal case.  

Q:  So what does CPL 240.44 say about WHEN the prosecutor gives us this stuff?   

A:  The Prosecutor MAY give the defense this information at the conclusion of the direct examination of each witness...  

ARE YOU KIDDING ME?   

Essentially, this means that a NY prosecutor could not give necessary evidence until the first hearing (or trial if defense counsel forgets to ask for it)--and AFTER their first witness testifies...  

That's crazy.  It's also inherently unfair.  How do you defend a case if you don't know what the evidence against your client is... When I tell clients about these rules they're usually shocked and appalled. 

HOW WE DEAL WITH THIS PROBLEM...


Fortunately, even if you're up against an unethical prosecutor who refuses to give the necessary evidence in a case, the defense is entitled to "adequate time" to review and prepare cross-examination on any evidence.  

So, we ask the Judge to do one of two things:

a)  Toss out all the evidence and not allow the prosecutor to use it and  have the witness testify; OR

b)  Ask for a several day/week adjournment so that we can adequately prepare a proper cross-examination (and request to put it on the prosecutor's timeline for Speedy Trial Rules CPL 30.30)


Most DA offices are not going to abuse these rules and give us the necessary evidence in a timely manner.   Occasionally, we get surprised by something a Prosecution witness says, but we know to ask for any ROSARIO material pertaining to their testimony --and then request an adjournment if necessary.  If we know about an existing report that we have NOT seen yet, we can also make a discovery motion (to supplement the one we always give at the first court appearance) to make the Judge aware of the problem even before we get to the hearing stage.  There's lots of ways to deal with the issue.  

My point is:  we shouldn't have to do any of this stuff.  The prosecutor should willingly give us all the info on a case --and if they have a good case --then great / if they have a bad case, the defense should know.  Simple as that.  Justice is not done when somebody is convicted based on the withholding of evidence by a prosecutor.

My hope is that more people become aware of this problem and make their voices heard. 

By Mike Cyr


Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.

If you have questions about a marijuana charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:

607-229-5184


BY NEWMAN & CYR


Or find us online! 


www.ithacadwi.com


www.watkinsglendwi.com


www.facebook.com/ithacadwi


www.twitter.com/ithacadwi


DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 


*Attorney advertising




*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.