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.


Wednesday, January 18, 2017

Ithaca Seneca Falls DWI lawyer: ADVANTAGES of DMV Refusal Hearing --Getting Evidence Early in NY!


ADVANTAGES OF DMV REFUSAL HEARING IN NEW YORK (PART 4): GETTING EVIDENCE EARLY!


This is part four of my blog series on the Advantages of the DMV Refusal Hearing in a DWI Refusal case in New York...  

Today, we're going to talk about getting evidence early in the DWI refusal case.   Unfortunately, New York has archaic rules that do NOT allow criminal defendants to see or get all the evidence against them until somebody is about to testify against them.  Say what?  Yes, it's a very scary rule and I'll go into it in more detail in a future blog post.  It's called the "Rosario" rule (based on a court case People v. Rosario).  

So if the Prosecutor and police won't give us any evidence --how to we get a copy of the police report early in a DWI case?  Well, some counties are better than others and have "open file discovery" rules.  Tompkins County is pretty good about giving defense attorneys and criminal defendants their discovery on the early side of things --especially in DWI cases.  However, other counties are not as good or willing to let us see the evidence we're entitled to see to help us defend the case...

That's where the DMV Refusal Hearing comes into play. 

GETTING THE POLICE REPORT AT THE DMV REFUSAL HEARING

Most police officers bring their police report and the report of Refusal to the DMV Refusal Hearing in NY.  They use their report to make sure they remember what happened for the stop and arrest and to make sure they don't make any mistakes and say something that didn't happen.  Some officers remember every little nitty gritty detail from memory --but most don't.  

When I get to a DMV Refusal hearing --I always ask to see the police report and Refusal report.  If the cop declines to let me see it, then I'll make a motion on the record before we even start that if he's not willing to let us see it for cross-examination purposes, then he shouldn't be allowed to use it at all during the proceeding (to refresh his memory or any other reason).   Usually that does it --and the Judge goes along with me getting to see the report.  However, if the Judge does NOT, then we have to throw some case law at them...

Matter of Inner Circle Rest., Inc. v. New York State Liquor Auth.  30 NY 2d 541 (1972)

This is a case where a police officer refused to show his memorandum book to defense counsel in a civil hearing (similar the DMV hearing).  The Court ruled that not allowing defense counsel to see the officer's book was enough to order a new hearing.   I.e. it was wrong and unfair. 

Garabedian v. New York State Liquor Auth.  33 AD2d 980 (1970)

Another liquor authority case where the officer refreshed his memory from a report he had written and sent to his superiors --but refused to give to defense counsel.  The court ruled that it was inherently unfair to not allow defense counsel to see that report.  i.e  the officer must share the report if they even look at it to refresh their memory

Those two are the big cases that relate to getting to see the police report at the DMV hearing.  However, the DMV has said that those rules don't apply to them.  Fortunately, the DMV has it's own rules that work for us:  

15 NYCRR s. 127.6 states (in pertinent part):  

"Prior to a hearing a respondent may make a request to review nonconfidential information in the hearing file including information not protected by law from disclosure... If a request to examine the file is received less than 7 days prior to the hearing date, then requestor will be afforded an opportunity to examine the file immediately prior to commencement of the hearing...

So the rules are on our side as long as you know to make use of them.  Occasionally, I get a Judge that doesn't know or understand these rules, but they usually come around when I cite these things for them.  All we need is to see the report right before a hearing or right before we cross-examine the officer (or during).  

WHAT'S SO IMPORTANT ABOUT GETTING THE POLICE REPORT EARLY?


It helps us know how to defend the case.  We will get a sense of what direction the prosecutor will go on their case --and then we can devise a strategy on how to defend it.  As I've said countless times, the more information we have, the better we can defend somebody.  Knowledge is power.  Getting a report earlier than we would normally get it is never a bad thing.  

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.