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.









Tuesday, January 17, 2017

Ithaca Corning DWI lawyers: ADVANTAGES of going to DMV Refusal Hearing in DWI refusal case in NY (Part 3)

Horizontal Gaze Nystagmus Test (one of three National Standardized Field Sobriety Tests)

ADVANTAGES of going to DMV Refusal Hearing in a DWI Refusal Case in New York (Part 3):  

Cross-Examining the Field Sobriety Tests

This is part three of my blog series dealing with why going to the DMV Refusal Hearing in a DWI Refusal case in New York can be a very effective tool in defending the main criminal DWI case.   You can read PARTS ONE and TWO here.  

Today, I will discuss how the DMV Refusal hearing can be effective in cross-examining the arresting officer about how he/she administered the Field Sobriety Tests.  Remember, in a DWI Refusal case, the Police usually have to rely on the Standardized Field Sobriety Tests (SFTS) as a big part of their case.  So if you can discredit these tests or get them dismissed altogether, then that gives the DWI defense client a big advantage in protecting themselves from a criminal conviction.  

WHAT ARE THE THREE STANDARDIZED FIELD SOBRIETY TESTS?


The National Highway and Traffic Safety Administration has made only three Field Sobriety Tests standard for all law enforcement across the country.  These three tests are the only ones that have ANY sort of scientific background into showing that a person is supposedly over the 0.10 BAC limit (that was the limit when they did the research) or not.  FYI, the research took place in the early 1980's and the conclusions were extremely suspect ... but that's the story for another post.  Bottom line, these tests have been accepted in New York and will continue to be used for the foreseeable future.  There's no point in fighting their validity as measurements of sobriety. 

Two of the three tests are balance and coordination tests.  The other test is a measurement of the body's autonomic nervous system's response to alcohol by looking at your eyes.  I'll go through each one. 

HORIZONTAL GAZE NYSTAGMUS TEST


The Horizontal Gaze Nystagmus Test or "HGN" is probably (in my opinion) the best measurement of somebody's level of intoxication from a scientific standpoint (but for SFTS that's not saying much).  It doesn't rely on somebody's athletic ability or any other physical clues that you could control or that could be affected by nervousness.  In a nutshell, the test looks for involuntary JERKING of the eyes (called "nystagmus") caused by alcohol.  In a very drunk person, the nystagmus is relatively easy to see (according to my wife who is an Emergency Physician).  However, in somebody who has some alcohol but may not be intoxicated (past the point of safely operating a car) then it can be much more subtle--or not even present at all.  This is the major problem with police officers giving this test instead of a medical professional trained to identify nystagmus (and causes other than alcohol). 

There are four main steps to the HGN test:

1.  The officer checks your eyes for equal tracking. (pre-test)

2.  The officer checks your eyes for lack of smooth pursuit (if they move smoothly from side to side)

3.  The officer checks to see if your eyes involuntarily jerk when they move all the way to each side  (nystagmus at maximum deviation)

4.  The officer check to see if your eyes involuntarily jerk before they move all the way to side (prior to 45 degree angle --from your shoulder) [nystagmus onset prior 45 degrees]

There are other things they have to do for this test to be reliable:

-hold the stimulus 12-15 inches from tip of your nose and slightly above
-move stimulus smoothly
-check for all three clues in each eye (at least twice)
-must look for clues in correct order (lack smooth pursuit, max deviation, onset 45 degrees)
-can't hold the stimulus for too long at certain points

If the officer observes 4 or more clues (according to the NHTSA manual) then they can correctly identify somebody with a BAC over 0.10 about 77% of the time

Yes, you read that right.  Only 77%.  That's a pretty large margin for error. And that's the most reliable of the SFTS as you will see below...

HOW DO WE CROSS-EXAMINE THE HORIZONTAL GAZE NYSTAGMUS TEST AT THE DMV REFUSAL HEARING?


It depends on the witness.  If the officer seems really knowledgeable I usually cross them on each step and look for mistakes in how it was administered.  If the officer does NOT seem that well-read on the SFTS then I usually ask them an open-ended question like "please describe how you perform the HGN test."   I like to give them enough rope to hang themselves with... That way when they make a mistake on the record, I can bring it up in the criminal case and get them to admit that they did it wrong.  Most officers forget the nitty-gritty details of how these tests are supposed to be properly administered.  That is an advantage to the DWI defense client. 

WALK AND TURN TEST


This is a simple listen to instructions/ motor skills and coordination test.  Here's the test:

-When I tell you to start, take nine heel-to-toe steps down the line, turn around, and take nine heel-to-toe steps back up the line (officer demonstrates 2 or 3 heel-to-toe steps)

-when you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this (officer demonstrates the turn)

-while you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud

-once you start walking, don't stop until you have completed the test

-do you understand the instructions? (officer supposed to make sure you understand)

-begin and count your first step from the heel to toe position as "one." 

[by the way, while the officer is giving these instructions, you're supposed to be standing heel-to-toe the entire time without falling over]

HOW THEY GRADE THE TEST:  You receive a "CLUE" if you do any of the following...

1.  Cannot keep balance while listening to instructions
2.  Starts before instructions finished
3.  Stops while walking to steady self
4.  Does not touch heel-to-toe
5.  Steps off the line.
6.  Uses arms to balance
7.  Improper turn.
8.  Incorrect number of steps. 

The officer is taught by the NHTSA manual that if the subject exhibits TWO OR MORE clues then they "FAIL" the test and are allegedly over 0.10 BAC.  

The manual states that this test will correctly identify 68% of people over 0.10% BAC.  

Yes, only 68% if done perfectly!  Which means --according to math, 32% of people who "fail" this test are sober! 

HOW DO WE CROSS-EXAMINE THE WALK AND TURN TEST AT THE DMV REFUSAL HEARING?


Generally, it's not the test I focus on at the DMV hearing.  The HGN test is much more useful to cross given the limited amount of time we have at the hearing, plus the Walk and Turn is just FULL of problems.  

As you can see from the instructions, there are major problems with the logic of the test itself.  If you have any kind of disability, if it's cold, if you're nervous, if you're hard of hearing, if you are on a hill, if the ground isn't clear, if it's super dark etc etc, then the test could be unreliable.  Plus--you could do 90% of it totally right and still fail.  That's why we DWI defense lawyers don't put any stock in the Walk and Turn compared to the HGN.  At least the HGN is somewhat based on science by measuring the body's involuntary response to alcohol.... the Walk and Turn is far less reliable.  That makes it less dangerous than the others when defending somebody for a DWI.

ONE-LEGGED STAND TEST


Again, the One-Legged Stand (OLS) test is another balance/coordination test.  Here's the test:

The Officer instructs you to: 

-stand with feet together
-arms at side
-to raise your foot forward approximately six to 12 inches off ground without bending leg
-you are to count certain number of seconds (determined by officer-usually 30) without putting foot down 
-count out loud
[most officers have you count to 30]

The manuals for this test state that people with leg injuries, 50 lbs over more overweight, age 65 or older, or any other inner ear disorder will likely invalidate the test.  

What are the "CLUES" for this test? 

-swaying
-movement of the arms six inches or more from the side of the body
-hopping
-puts foot down prior to 30 seconds

If you exhibit 2 of 4 clues then you FAIL.  If you fail the test allegedly proves that you're over 0.10 BAC.  

Using the factors above, the manual states the test is 65% correct in identifying people over 0.10 BAC.  

65%!  The worst accuracy of all three SFTS.  This test is hard for a sober person to do right...

HOW DO WE CROSS THE ONE-LEGGED STAND FIELD SOBRIETY TEST?


Again, at the DMV hearing, I generally don't get into it unless we have a specific reason that has been discussed in advance with the client.  Like one time, I had a client with vertigo (an inner ear problem) that essentially invalidated both the WAT and the OLS tests. So we questioned the officer on that issue.  But for a normal client without lower extremity injuries or balance problems then it's probably not going to be a big issue we focus on at the DMV refusal hearing.  We will wait until the suppression hearing at the criminal DWI refusal case to thoroughly cross it. 

The OLS is so unreliable anyway that it is the least effective of the SFTS.  Sure, we have to cross it during the criminal case (and most people can't do the OLS sober), but we usually are not going to waste our limited cross time on it during the DMV refusal hearing for reasons stated above.  

Here are some basics to cross the OLS:

-was ground level
-any medical problems with Defendant
-nervousness
-heat or cold
-darkness
-light in eyes
-dizziness


WHAT'S THE ADVANTAGE TO CROSSING THE POLICE OFFICER ABOUT THESE TESTS AT THE DMV REFUSAL HEARING IN A DWI REFUSAL CASE?


In short, it gives us a preview (and more ammunition) of what the officer is going to say down the road at the criminal case suppression hearing.  The more we get them to testify to, the more we have to use to cross-examine them on the important issues --and hopefully sway the Judge, Jury or Prosecutor that the case is weaker than they originally thought.   

The more information we can get in the early stages of the DWI defense case, the better.  That's just common sense.  Knowledge is power.  The more knowledge we have about the officer and what they're going to say, the more effective we can be as defense counsel.  

In my next blog post, I will discuss how the DMV Refusal Hearing can allow us to get the Evidence against you earlier than usual in a DWI defense case.  Thanks for reading and have a great day!

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.


Sunday, January 15, 2017

Ithaca Elmira DWI lawyer: ADVANTAGES of DMV Refusal Hearing for DWI in NY(Part 2)

NOPE = REFUSAL  :-)

ADVANTAGES of the New York DMV Refusal Hearing for a DWI Refusal Case (Part 2):  Cross-Examining the Main Police Witness (before the criminal case starts!)

OK, welcome back!  This is part two of my series on the Advantages of the New York DMV Refusal Hearing for a DWI Refusal case.   In PART ONE, I gave an overview of the process and where these hearings are held throughout New York state.  However, in this section, I will explain and highlight the Cross-Examination of the principal police witnesses for the prosecution during the DMV administrative refusal hearing... and why it is a huge advantage for the defense of the main criminal DWI case. 

WHICH OFFICER(S) SHOW UP AT THE ADMINISTRATIVE REFUSAL HEARING? 


Obviously, who shows up varies from refusal case to refusal case.  Sometimes one officer comes to the administrative DMV hearing.  Sometimes two officers show up.  Sometimes nobody shows up (but we will cover that later).  You'll see in a minute why we want them to show up...

Usually the officers who were involved in the stop of the car and/or the primary officer involved in the arrest are the ones who come to the DMV refusal hearing in NY.  That's a good thing --and I will go on to explain why.  

WHAT SORT OF STUFF WILL THE POLICE OFFICER TESTIFY TO AT THE NY DMV REFUSAL HEARING?


In order for the Administrative Law Judge to determine if there is a legal refusal of the chemical test, the police have to establish some basic stuff through their testimony: 

1-that they had probable cause to suspect you were drunk driving
2-that they had probable cause to arrest you for drunk driving
3-that they gave you sufficient warnings that you would lose your driving privileges if you refused to take the chemical test back at the station/hospital.  
4-that you legally refused (either express or implied refusal)

So those 4 things are the crux of what they need to talk about... but they usually go into more detail based on their report (which they usually have with them).  In my experience, most officers will talk about why they stopped the car, talk about how they smelled alcohol on the driver, how the driver had slurred speech/watery eyes, and then they will talk about whatever Field Sobriety Tests they gave the driver.  

Once they finish how the stop and arrest happened, they will go into what happened back at the police station.  They usually will testify that they read the standardized MIRANDA warnings and the standard DWI Refusal Warning off a little card that they keep in their pocket--this is the text of the DWI Refusal Warning (forgive the length --its not my fault):

1. You are under arrest for Driving While Intoxicated
2. A refusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege, whether or not you are convicted of the charge for which you were arrested.
3. If you refuse to submit to a chemical test, or any portion thereof your refusal can be introduced into evidence against you at any trial, proceeding, or hearing resulting from this arrest. 
4. Will you submit to a chemical test of your (breath/blood/urine) for alcohol?  ( or will you submit to a chemical analysis of your blood/urine for drugs?)   

Generally, in my experience, if the officer reads from the card at least once, then the hearing Judge will find that the warning was sufficient.  Most officers read it several times over a period of time. 

Finally, the officer testifies about your refusal of the test.  They will say what you said if it was an express refusal (like the driver said "No") or what you did if it was an implied refusal (i.e. we asked three times and each time the driver remained silent, etc).  They also have to bring a piece of paper called the "Report of Refusal."  This typically has the times the warning was read to the driver and what they said. 

WHAT THINGS DO WE CROSS-EXAMINE AT THE DMV REFUSAL HEARING IN NY?


It is a significant advantage for our defense of your CRIMINAL CASE to cross-examine the main police witness at the DMV Refusal hearing in New York.   How come?  

We get to see several important things before the criminal case really gets going.  For starters, we get to evaluate how competent a witness the arresting officer is going to be in a trial situation.  "Know thy adversary."  The more time and more questions we can ask them at the administrative DMV hearing, the better we can learn their strengths and weaknesses.  Some officers are terrific witnesses -- they're confident, speak clearly, and know their stuff.  Others are less so.  It is critical for us to get a sense of how they will perform if we have to push the case toward a suppression hearing or trial on the criminal DWI charges.  It's like the old NBC slogan, "the more you know..."

Remember, at the DMV refusal hearing the Officer is placed under oath so s/he must tell the truth or perjure himself/herself.  That's why it is important to get their testimony on the record being created by the Judge so we can make sure they don't change it during the criminal case.  We can get the audio recording of the hearing after it's done if necessary.

Specifically, we always cross-examine the officer on the stop of the car.  Even though a police officer can (pretty much )stop anybody legally in a car in NY,  we focus on the reason for the stop.  If your driving was pretty good and you got stopped for a light being out or a loud muffler etc, then we want to have him admit that your driving was otherwise fine.  

We will ask questions about how you answered their questions right after being pulled over.  In New York, the prosecutor must prove beyond a reasonable doubt that the driver did not have the MENTAL and PHYSICAL capability to reasonably operate a motor vehicle.  Therefore, if we can get the officer to admit during the DMV hearing that you were "coherent" then we can use that in defending the criminal case.  

We ask questions about the standardized field sobriety tests they gave the driver--more on this in a future blog post in this series. 

Finally, we ask about any specific issues as part of the case.  I just had a case where my client got into a car accident and smacked her head during the crash.  It came out a couple days later that she had a concussion --however, the police still forced her to do Field Sobriety Tests.  I got the officer to admit that somebody with a concussion would be unable to reasonably do the tests and those tests would be unreliable.  That's one example of how we have to tailor every cross-examination to the best interest of the client and focus on important specific issues. 

Here's a basic list of topics we typically cross-examine at the DMV refusal hearing:

1.  Probable Cause to Stop Car
2.  How driver responded to basic questions (like license/registration request)
3.  Was driver "coherent" ? 
4.  Did driver walk under own power?  no stumbles/falls/trips etc
5.  Cross on Field Sobriety Testing (see future post)
6.  Cross on Refusal Warnings Given by Officer
7.  Cross on Miranda Warnings (if necessary)
8.  Cross on Refusal itself (express vs implied)
9.  Cross any specific issue to case that's important (i.e. injuries/disability etc)

Obviously, this is a very basic overview so that you (the reader) can get a sense of WHY the New York DMV administrative hearing is so important to the defense of a DWI refusal criminal case in this state.  

Although this hearing is technically only about whether the DMV should suspend the driving privileges of the suspected drunk driver, you can see it is about so much more...by getting a chance to cross the officer early in the criminal process, we can lock them into testimony later in the criminal case, and we can take away the officer's credibility if they testify differently later in the case... it's an advantage for our client. 

In my next post, I will give specific information about why it is advantageous to cross-examine the officer on the Standardized Field Sobriety Tests and how it can help the criminal DWI case in NY.  

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, 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.