Ithaca DWI: Must Investigate Scene of Arrest!

GOING TO THE SCENE OF THE DWI ARREST

Ithaca College Circle Apartment Complex, Copyright Cyr 2015

Why is it sooooooo important to actually go to the scene of the DWI arrest?  

Because any FIELD SOBRIETY TESTS ("FSTs") done at the scene can be seriously affected by the environment... 

1.  ITHACA IS CONSTANTLY CHANGING SEASONS.  (except in Winter, lol)

What I mean is, you might get arrested in February for DWI, and you may not have a trial or suppression hearing until June or later.... so if you want to show the judge or jury the conditions of where you were arrested, it is important to take pictures very soon after the arrest.  

2.  THE CONDITION OF THE GROUND CAN SERIOUSLY AFFECT A FIELD SOBRIETY TEST.

Was the ground level?   Was there an actual LINE for you to walk on?  Was it concrete?  Was it gravel?  Are there cracks in the pavement?  Was it on the side of a hill?  Was the area well lit?  Was it dark except for the lights of the police car?   

All of those above issues can negatively affect the outcome of a FST.  With respect to lighting, if there are flashing cruiser lights or it is very dark except for the light of the cruiser, it can skew the results of the Horizontal Gaze Nystagmus Test (the most reliable and "scientific" of the 3 standardized FSTs).  

If the ground is uneven or gravel, it can make it much more difficult to complete the Walk and Turn or One-Legged Stand FSTs.   

*Other than those 3 tests, no other "so-called FST" has been shown to prove any level of impairment or intoxication by the scientific community (the Romberg Test, the Alphabet Test, Counting test, etc ---are all unproven and not approved by the National Highway Traffic and Safety Administration [NHTSA]).

--SUMMARY THOUGHTS--

It is important for both you and your attorney to go to where you were arrested and check out the scene together.  That will give your lawyer a better understanding of what happened and give possible new ammunition to fight the case against you.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Ithaca DWI: How a Breath Test Works in Ithaca, New York

GETTING TO KNOW THE BAC DATAMASTER DMT -- 

"CHEMICAL" BREATH TEST

(image courtesy www.winbackyourlife.org)

1.  What the heck IS the "BAC Datamaster DMT" ?    

It is the chemical breath test device being used by all local police agencies in Ithaca, NY and Tompkins County.  [The NY State Police use a different machine made by Draeger].  This machine doesn't actually use any chemicals in reading your breath--it uses light.

2.  How does this machine work? 

Most modern breath test machines use "infrared absorption spectrometry" to measure blood-alcohol concentration in the blood.   

What is that?   Basically, the police have you blow your breath into a heated tube and pass through a sample chamber.  Then, an INFRARED LIGHT is shown through the sample chamber.   If there is any alcohol on your breath, the infrared beam will attach to ethanol molecules and acetone molecules.  Then, the machine reads HOW MUCH light passed through the chamber and generates a BAC percentage.  (i.e.  0.08% BAC)  If there is alcohol present in your breath, it will block some of the light...

3.  What are the machine's limitations?

There are many...

a)  The machine can give FALSE POSITIVE readings if the Infrared Light attaches to other non-alcohol molecules in your breath.  Examples include, ketones (from Atkins type diets, vomit in your mouth, etc), stomach contents from your breath, dentures, recent dental work, esophageal reflux, pharyngeal reflux, and more.   Anything in your mouth can skew the test and make it unreliable.  Your body chemistry can also skew the result.

b)  The machine assumes that all people are the same!   The machine uses a "blood to breath conversion ratio" of 2100:1 milliliters.   In words easier to understand, the machine relies on the premise that in EVERYONE the amount of alcohol in 2100 milliliters of breath equals the alcohol in 1 milliliter of blood.

Problem is --EVERYBODY IS DIFFERENT.   The ratio doesn't take into account the following:  gender, age, weight, medical history, and unique body chemistry.  

In fact, members of the scientific community have said that the ratio varies in each person from 1100:1 all the way up to 3400:1.   That's a HUGE range.  But the machine only assumes 1 range for all people tested.   

c) Even with the problems mentioned in a) and b) above --the test is still deemed admissible in NY.   However, a defense attorney can argue the WEIGHT of the evidence (in other words, how important it is to a jury).  

d)  The Breath Test Operator (the police officer) has to follow all the right PROTOCOLS in giving the test.  If any of the protocols aren't followed, then the test can be unreliable.  The officer must observe the subject, check the subject's mouth for any contaminants or obstructions, and do proper checks of the machine itself (run a blank sample and a reference sample as well as make sure the machine is working properly).  

--SUMMARY THOUGHTS--

The BAC DATAMASTER DMT is a machine that is far from perfect.  Yes, it can read alcohol in people's breath --but it is designed to be rigid and fails to take into account that everybody is different. 

In every DWI case, that's why it is critical to find a lawyer who understands the science behind the equipment...because the equipment can make mistakes. 

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

(Ithaca DWI)Behind the Curtain: What just got Waived at your first court appearance???

What does it mean when your lawyer says, "We waive the reading of the rights and charges" ???

(image courtesy www.legalteamusa.net)

What does WAIVE mean?  =  to give something up

So, if you've ever been to a first appearance in criminal court, you will hear every attorney say something like "we waive reading" or "we waive reading of the rights and charges."  This is so common for reasons of streamlining the appearance for the Judge, the client, and all the attorneys waiting to be seen.  So it begs the question...what RIGHTS exactly are we waiving at the first appearance???

Well, it depends on what you're charged with... the rights differ depending on if you're charged with a traffic infraction/non-criminal violation, a misdemeanor or a felony--or a MAJOR felony (like murder). Unless you're charged with something very serious like crimes of violence against another person...it is customary in NY courts to waive reading of the CHARGES.  If you're charged with a lesser felony, it is still customary to waive reading of the Charges, but not the RIGHTS necessarily.  

If you're charged with a misdemeanor or a traffic infraction/violation, it is customary to waive reading of BOTH RIGHTS and CHARGES.  (you're not waiving the rights themselves)

So if you waive reading of your rights by the judge at the first appearance, what rights are we talking about?   [governed by Criminal Procedure Law, s. 170.10]

1.  Right to Counsel at arraignment and every stage of criminal case.  The Court is obligated to tell you that you are entitled to a lawyer at arraignment for a criminal charge (i.e. a misdemeanor).  They are also obligated to tell you that your case can be adjourned so you can find a lawyer or call a family member to help you find a lawyer.  If you cannot afford a lawyer, the court is obligated to tell you that one can be appointed to represent you.  

2.  The Court is obligated to make you aware of the effect of pleading guilty to any traffic ticket or traffic-related crime will have on your driving privileges in NY.  The Judge is also obligated to tell you that if you plead guilty it is the same as being convicted following a trial.  

3.  In cases where the accusatory instrument is a simplified traffic information, the Court is obligated to tell you that you may request a supporting deposition.  This is for traffic tickets mostly.  [CPL s.100.25]

4.  In cases where the accusatory instrument is a misdemeanor complaint, you have the right to either waive your right to be prosecuted by a Prosecutor's Information (a more formal instrument) or insist upon the prosecutor filing an information.  The Court is obligated to tell you this.  Unless the right is waived.  Even so, the Court cannot allow you to plead guilty to a misdemeanor complaint without your consent to waive the information. 

5.  For defendants summonsed to arraignment or given appearance tickets, the rights are usually written somewhere on the ticket and this constitutes compliance with the reading of the rights.  

*6th Amendment to the United States Constitution (Federal protections) give ADDITIONAL RIGHTS on top of the New York laws...

6.  Right to a trial

7.  Right to present evidence

8.  Right to challenge evidence

9.  Right to bring witnesses

10.  Right to confront witnesses

--SUMMARY THOUGHTS--

Attorneys often waive reading of the rights and charges to save time and keep good will with the prosecutor at the start of the case.  Also, the client usually does not want to have the list of charges read off to the general public because they can be embarassing. 

However, it is important to understand the rights because they can sometimes be used as leverage in getting a better deal for the client.     

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

(Ithaca DWI) Probable Cause: the Right to Stop a Car in New York

The Police Officer's RIGHT to STOP your car in NY

(image courtesy flickr.com)

BIG QUESTION:  When does a NY cop have the right to pull your over??? 

Well, they have rights to pull you over for all sorts of reasons.  Here are some of the biggest ones...

1.  The Court of Appeals (the highest Court in NY) has decided that the stop of a vehicle is lawful when an officer has probable cause to believe that an individual has violated the Vehicle and Traffic Law.   People v. Robinson (decided in 2001).  

What's definition of "Probable Cause" :  "reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that such person committed it."  CPL s. 70.10(2).  See also People v. Russell (2005), CPL s. 140.10

That's a MOUTHFUL. So, what's that mean?  

Basically, if an officer SEES you commit any traffic infraction (from not using a turn signal, to going out of your lane, to speeding) then they have the necessary PROBABLE CAUSE to stop your car. 

[If they pull you over for an Equipment Violation (like a tail light out or a noisy muffler) it can be a little more difficult to prove probable cause because the violation may be harder to discover.]

This still counts even if they're really after you for something else...like drunk driving.  

2.  An officer may stop a car if a PASSENGER in the car was just seen driving a different car and committed a traffic violation.  People v. Sluszka (2005)  [seeing you change cars is considered like a continuation of your initial driving.

3.  They can stop you if they have reasonable suspicion of criminal activity (i.e. a misdemeanor or a felony).   Reasonable suspicion is: "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand."  People v. Cantor (1975)

--SUMMARY THOUGHTS--

It's pretty easy for a police officer to lawfully stop you while driving a car.  They just have to follow you for a little bit and chances are, you'll do some little thing that violates the traffic law.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Breaking Down Timeline of a Criminal Case in New York (felony)

Breaking Down the Timeline of a Criminal Case in NY

(Felony)

This continues my blog series on the criminal process.  See previous post on Misdemeanors.*  

The felony process differs from the misdemeanor process in the beginning stages of the case because there are threshhold requirements to charge somebody with a felony and then the Criminal Procedure Law requires people charged with felonies to be INDICTED by the GRAND JURY.

Basic felony timeline:  

1.  Arrest / Charges filed by police

2.  Arraignment / Bail Review

-this is where the judge decides if the person charged with a felony "is a risk of flight" from the county where charged.  Then the judge decides if BAIL (i.e. money) needs to be put on the defendant and how much to prevent them from running away.  In most cases, any significant bail (i.e. $10,000 cash / $20,000 bond) will essentially lock somebody up for the duration of the case.  For serious felonies, the Judge can simply REMAND (or lock up the Defendant) during the case. ***IMPORTANT:  if the case looks like somebody will be doing jail time eventually, having bail set on them is the only way they can accrue "time in" which will later be applied to their ultimate sentence.  Bail can be used to your advantage.

3.  Felony Preliminary Hearing (at local court --not county level)

-this hearing is an opportunity to question the police officer, and is required for the prosecutor to prove that charging the felony was appropriate.  It is a low standard that is usually met.  Then the case is transferred to the County Court level. (called Supreme Court in NY)

-the prelim hearing can also be waived by the defense in exchange for extra discovery from the prosecutor or other deals.

4.  Discovery Phase 
-same as misdemeanor

5.  Indictment / Grand Jury Proceedings
-Often, it can take time for a felony to be indicted by the Grand Jury.  Alternatively, the prosecutor can decide NOT to indict the case and reduce the charges to a misdemeanor (which will remove the case to a lower court).  

-if the Grand Jury indicts the defendant, then the felony case is on the trial track.  Time lines and procedural guidelines must be followed by the court.

*6. Negotiation with Prosecutor (usually ongoing process)

*7. Pre-Trial Conferences

*8.  Motions / Suppression hearings

*9.  Voir Dire

*10.  Motions in Limine

*11.  Trial

12.  Sentencing
-At the felony level, a person can only plead guilty after having been INDICTED by a Grand Jury or by means of an "SCI" [Superior Court Information].  An SCI allows the defendant to waive indictment by a grand jury often as part of a plea deal.  This can expedite the process for the prosecutor and thereby, incentivize them to give a better deal to the defendant.  

STORY:   In 2014, I represented somebody charged with over 50 counts of burglary (a Class B violent felony) in multiple counties.   My co-counsel and I negotiated a deal with the local prosecutor that involved my client waiving their indictment and agreeing to be prosecuted by SCI in exchange for pleading guilty to only 1 count of Burglary with the minimum sentence.  This was an excellent deal for my client who was facing 20+ years in state prison--and instead, was sentenced to the minimum sentence of 3.5 years (with the likely possibility of being released in 6 months for taking part in a Dept. of Corrections Program!).  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Breaking down the Timeline of a Criminal Case in NY (misdemeanor)

Breaking Down the Timeline of a Criminal Case

(MISDEMEANOR)

Hello folks!  Today I'll break down a typical timeline for a criminal case for a MISDEMEANOR in New York.   

What's a MISDEMEANOR?   Well, there are three different types of crime in New York:  felonies (the worst kind of crime, i.e. murder), misdemeanors (middle of the road crime, i.e. petty theft), and violations (traffic tickets and public order offenses, i.e. disorderly conduct). 

What's the difference?   In a nutshell, where you go to Jail and whether you get a permanent criminal record.  

For felonies you go to State Prison.  (yes, you get criminal record)

For misdemeanors you to to County Jail.  (yes, you get criminal record)

For violations you can go to County Jail. (but will not have a criminal conviction on your record)

TIMELINE: 

1.  Arrest / Charges filed against you

2.  Initial appearance in Court  / Arraignment: 

-this is where your attorney pleads Not Guilty on your behalf and the clock starts ticking on the prosecutor to be "ready for trial" bring the case against you.  [CPL 30.30]

3.  Discovery Phase

-this is where your lawyer will make a DEMAND TO PRODUCE and/or REQUEST FOR BILL OF PARTICULARS to the prosecutor to get more information about the case against you.  There are many different kinds of discovery requests that can be made by your attorney, but unfortunately in New York, there are significant restrictions on what the prosecutor is required to give the defense.  That's a subject for several other blog posts.  

-In a perfect world, you are dealing with an ethical prosecutor who turns over all the required (and not required) discovery to your lawyer so that additional motions and potential sanctions against the prosecutor will not have to be filed to protect you from injustice.

4.  Negotiation with Prosecutor

-this is the most important part of any case, this is where I can get a sense of how the prosecutor views you (as a danger to society etc) and views your case.  There is quite a bit of gamesmanship and nuance that goes into these conversations and if your lawyer knows the prosecutor well --this can help you tremendously.  

-In the negotiation, your lawyer is hoping for a reasonable alternative to bringing your case in front of a jury or judge.  In other words, we are trying to get the best possible GUARANTEE from the prosecutor for our client.  It is always safer to go with a sure thing than risking a jury convicting you of a more serious crime.  [see my previous post on plea negotiations]  It is an important cost vs. benefit analysis that happens in every case.

5.  Pre-Trial Conference

-this is an opportunity for the client, defense counsel, prosecutor and judge to all be in the same room and give a sense of where the case is going to the court.  There are many different ways to "skin a cat" and there are many uses for pre-trial conferences.  Sometimes a case is headed toward a suppression hearing or trial, or a client needs more time to complete community service, or a client needs to attend more drug or alcohol counseling, or more discovery needs to be done, etc, etc, etc.  The Pre-Trial Conference is simply a check-in with the Judge to give him or her a heads up about what's going on.  It is also a good opportunity to wrap up a case if a plea deal has been struck. 

6.  Motions / Suppression hearing

-this is the point in the case where trial starts to become a real possibility.  The motions deadline is 45 days from arraignment (although this is often extended for any number of reasons).  Motions and suppression hearing are an opportunity to conduct a mini-trial and cross-examine the prosecutor's main witnesses (usually police officers).  If you have solid defense points (and do a good job crossing the officer), pushing a case to a suppression hearing can (but not always) result in the prosecutor making a better plea offer than before.  However, on the flip side of the coin, if things do not go well, you have a better understanding of how you would fare in front of a judge or jury --and more information is always good.  

-every case is different and there are hundreds of reasons to either have or NOT have a suppression hearing or even draft pre-trial motions.

7.  Motions in Limine (pronounced "Lim-in-nay")

-these are trial motions made to the judge trying to exclude evidence and are typically made right before a trial begins

8.  Voir Dire (aka choosing a jury)

-this is the process of selecting a jury.  It is a complicated and artful process that is critical in deciding a case in your favor.

9.  TRIAL  (here's a brief outline of a trial)

a.  Opening Statement (defense can wait until start of own case or do one now)

b.  Prosecutor's Case (calls witnesses/ defense cross-examines)

c.   Defense Case (defense can make opening statement or start calling it's own witnesses, or it doesn't have to call any witnesses)

d.  Closing statements 

e.  Verdict 

10.  Sentencing

-this happens either after a plea deal has been consummated or if convicted of a crime by a judge or jury.   In New York, there are very specific sentencing guidelines based on what you are convicted of... the judge has some discretion on fines and jail time etc, but they have limitations on minimum sentences/fines etc.   It's complicated.  That is why it is absolutely critical that you KNOW the possible sentences before a trial is even decided.

-if required (or requested), the Court can order the Probation Dept. to complete a "Pre-Sentence Investigation."  This is an interview with probation where they give a sentencing recommendation to the court after researching the case.  There are pro's and con's to this process.  It typically adds 2 or 3 months to a case in Tompkins County.

-Ultimately, the judge imposes a sentence (and it is up to your attorney to make sure that it is a legal sentence).  

--SUMMARY--

I hope this outline can help take away some of the mystery of the criminal process and some fear.  It is important to understand what you're facing.  Always be sure to have a competent attorney when charged with any crime.

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

FRESHMAN SERIES: How a Crime Affects Your Academic Life

HOW A CRIME AFFECTS YOUR ACADEMIC LIFE

For college students, getting charged with a crime can affect their lives in many, many ways.  

The criminal charge puts the student's freedom on the line.   It causes problems and stress with the student's family.   It can also cause significant penalties with the student's college or university --including, but not limited to, expulsion.  

Most colleges and universities have Student Conduct Policies.  These policies vary, but are pretty similar when it comes to criminal allegations.  They are usually very long and detailed and lay out the procedures that govern violations of the policy or policies.  

Some schools will wait until a criminal charge is resolved before bringing academic charges against a student.  These colleges believe in waiting for the criminal justice system to play itself out before imposing discipline.   However, other universities will impose their discipline when a criminal charge is brought --and NOT wait for the system to resolve the crime.   There is no standard for this concept and each school is free to discipline it's students as it chooses.  

I will lay out parts of the Ithaca College and Cornell University policies below...

At Ithaca College, the student is allowed an administrative hearing as described here: 

"7.1.2.2.10 Right to a Hearing on Campus

As amended by the Ithaca College Board of Trustees May 21, 2011 and May 16, 2014.

All students accused of violations of the "Statement of Responsibilities" (below) will be guaranteed written notice of charges and have the right to a hearing. This right includes adequate notice of hearing, information concerning the evidence against them, the opportunity to present evidence in their own behalf, and written notice of the decision. Students should be aware that the judicial process is different from criminal and civil court proceedings. Procedures and rights in the judicial process are conducted with fairness to all, but may not include the same protections of due process accorded by a court of law. Decisions will be made based on preponderance of evidence showing that it is more likely than not that a student was responsible for a violation. If a student with a disability needs a reasonable accommodation in order to participate in any aspect of the judicial process, including an individual judicial hearing or a Conduct Review Board, then the student must submit a request through the Office of Academic Support Services for Students with Disabilities."

The important thing to notice at IC is that their policy is proving guilt by a preponderance of the evidence standard.  So, hypothetically, you could positively resolve a criminal case in court where "beyond a reasonable doubt' is the standard, and still be kicked out of college using the lesser "preponderance of the evidence" standard (which is much easier to prove).

At Cornell University, the Student Code of Conduct is very, very long and detailed... here's 

a snippet:  

"A. Basic Policies on University Conduct Regulation in Relation to Public Law Enforcement 

The following basic policies will apply in situations where misconduct violates both a University conduct regulation and the public law: 

1. The following kinds of offenses are adjudicated in the public courts: all felonies, controlled substance offenses, motor vehicle moving violations, assaults upon a peace officer or resisting arrest, refusals by persons to identify themselves, as well as cases in which the complainant wishes to proceed in the courts and cases involving accused persons who are not members of the University community. Still, the Judicial Administrator has discretion to pursue even serious breaches of the law under the Campus Code of Conduct. Timely dealing with alleged misconduct is vital. Nevertheless, the Judicial Administrator should consider whether justice counsels withholding the exercise of University jurisdiction until public officials have disposed of the case by conviction or otherwise. 

2. When the Judicial Administrator determines that misconduct does not constitute a serious breach of the law and that the interests of justice would be served by handling such misconduct within the University jurisdiction, he or she shall: a. attempt to exercise jurisdiction in a manner to avoid dual punishment for the same act; b. cooperate with public officials so that the exercise of University jurisdiction ordinarily will not be followed by public prosecution of the individual’s misconduct; and c. withhold the exercise of University jurisdiction, when prompt public prosecution is anticipated or is under way, until public officials have disposed of the case by conviction or otherwise."

Basically, Cornell leaves itself the option to prosecute the student after criminal charges are resolved in the court system OR beforehand...depending on the case.  The university can do whatever it deems necessary given the situation.  This is pretty typical.  

--SUMMARY THOUGHTS--

If you are an Ithaca College student or Cornell University student and are charged with a crime, be sure to understand the academic discipline you are facing as well as the charges in court.  Both can profoundly affect your life and more importantly, your future.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

FRESHMAN SERIES: Stealing in NY (Petit Larceny)

What is Petit Larceny in New York State?

Courtesy scaredmonkeys.com

The lowest form of theft crime in New York is "petit larceny" Penal Law, s. 155.25

Here is how it breaks down: 

"A person is guilty of Petit Larceny when he steals property.  Petit Larceny is a Class A misdemeanor." 

Penalties: 

-up to 1 year in jail
-up to 3 years probation
-fines $0-$1000
-surcharge of $200 (city ct) / $205 (town ct)
-permanent criminal record 

What does it all mean?

In New York, if you steal anything worth $0-$1,000 it constitutes Petit Larceny.   

For example, stealing the following things constitute this crime:

-a tube of chapstick
-a single soda can
-a bag of chips
-a candy bar
-piece of clothing
-a pen

This is just a heads up that theft crimes are handled harshly in New York...

Note: if it's worth more than $1,000 or is a credit card or bank card or check ...then the crime gets bumped up to a Class E Felony (state prison is on the table).  

*If you are charged with a crime, always consult a local licensed attorney.

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Behind the Curtain: Negotiating a Plea Offer

Courtesy dreamsline.com

NEGOTIATING PLEA DEALS

One of the key components in representing a client who is charged with a crime is the PLEA NEGOTIATION. 

In my experience, 98% of all cases are resolved by plea agreements.  There are a variety of skills needed to maximize the offer for the client. 

In every case, it is important to do the following things before any conversations begin with the prosecutor...

1) Analyze the strengths and weaknesses of your case.  

This may sound obvious, but it is the crucial first step in deciding how hard to push a negotiation.   You must take the case apart piece by piece to see where you may have solid defenses.  

In a DWI case, here's a few brief examples: 

-Was there probable cause to stop the car?  [bad driving, equipment malfunction, etc]
-Was there reasonable suspicion to ask my client to perform field sobriety tests?  
-Was there probable cause to search the vehicle?
-Were the field sobriety tests administered correctly?  
-Were the FST's given under the NHTSA guidelines? 
-What was my client's measured BAC level? 
-Was chemical test calibrated?  When?  
-Was client given refusal warnings?
-What evidence of impairment is there?   Could my client operate a vehicle?  
-What evidence of operation is there?  Can they prove my client actually operated a vehicle?
-Was there an accident involving property damage or personal injury?

etc, etc, etc

Each case has it's own set of unique facts and circumstances so it is important to break it down to see where your best arguments may be.  Legal research is necessary to see what case law may strengthen your case (or hurts it).

2) What is most important to the client? 

Once you are armed with the information about how good/bad your case is --you need to talk to the client to see what they're most concerned about.

-Do they want to avoid jail at all costs?
-Do they need to retain their driving privileges?
-Do they want to avoid a criminal record?
-Do they want to avoid probation but pay a stiffer fine?

Everybody values these things in a different way so it is important to know what your client thinks "is a good deal."   I also try to explain possible vs. probable outcomes at the outset of the case.  It is critical that both attorney and client are on the same page.

Next step:  Discuss the case with the Prosecutor.  

This is where negotiating is an art form.  I prefer to conduct these negotiations face to face if it's possible.  

In an adversarial justice system like ours --it is important to "know thy enemy."  If you deal regularly with certain prosecutors then you have an idea of what they're likely or not likely to go along with before you walk into the room.  This can be very helpful.

Often the first offer given by the prosecutor is less than ideal.  These offers are usually mailed to the client before the arraignment happens or the client retains an attorney.  I consider them to be a starting point ...but very rarely are they the final offer.  

During the plea negotiation, it is my job to poke holes in the prosecutor's case and show them what arguments I would make given the facts.  If there are significant defenses, I can push hard until the plea offer is something reasonable.  Sometimes pushing a case involves going to a suppression hearing or pre-trial hearings until the prosecutor decides it would not be worth it to try the case to verdict.  My own viewpoint is this:  if you push a case as if you're going to trial -then you better be prepared to try the case.   

On the flip side of the coin, if the facts are bad for my client (and there really aren't many defense options), I will try to focus on the "equities" of the case.  In other words, I will focus on the good things about my client (instead of the facts of the case) when negotiating the plea. 

For example,  I recently had an Aggravated DWI case where my client blew a 0.22% BAC and was involved in two property damage accidents in two places on the same night.   He also admitted to drinking 9 alcoholic beverages before getting behind the wheel.  The facts were bad.  

However, during the negotiation I focused on his lack of a criminal history and the fact that he was so honest about his drunk driving and owning up to his mistake when confronted by police.  As a result, the prosecutor was mollified and he was allowed to plea to a reduced DWI charge (and they dismissed the rest of the charges against him) despite the fact that it would have been relatively easy to convict him at trial on all the original charges.

Ultimately, it is important to consider the case in two lights:  the "big picture" and the "nitty gritty." Both can help give context to a crime and help negotiate a favorable outcome for the client. 

SUMMARY THOUGHTS

The initial offer is always a starting point and should be treated as such.  It is very rarely a good idea (barring extraordinary circumstances) to take a first plea offer from a prosecutor. 

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

BAD IDEAS: Twitter, Facebook, Instagram & your Case

POSTING STUFF ON THE INTERNET DURING YOUR CRIMINAL CASE = 

A BAD IDEA

Why's that?  


1.  The internet has made catching criminals SOOOO easy for police & prosecutors.

Really.  It's like shooting fish in a barrel.  Here's a couple of examples...

Facebook, Instagram, Twitter

a) You're charged with DWI.  The prosecutor searches your name on Google and comes up with several photos of you doing keg stands in college.  BOOM.  Goes right into the trial folder and will be shown to a jury.  

b) You're charged with assault in the 3rd degree.  The police searches for your name and comes across your Twitter account.  You made a couple racist jokes (purely in jest) and it turns out the guy you hit in a bar room brawl was black.  BOOM.  Goes into the trial folder. 

c) You're charged with a speeding ticket.  Prosecutor searches for you online and finds your instagram account riddled with pictures of fast cars, posters of Fast & Furious, etc etc etc. BOOM.  She'll try to introduce it as evidence of a pattern of speeding or a desire to speed.  

2.  ANYTHING written online ---status updates, Tweets, captions---are Admissions.

I've covered this in a couple posts.  If you verbally say anything or write anything...it can be used against you.  So don't.  Even things you've said in the past can come back to haunt you. 

Previous Tweets, Facebook posts, photos, things you've "LIKED" on FB, groups you belong to, etc etc etc.  These things can all be turned against you in a criminal case.  

3.  The internet lasts FOREVER.  Once it's out there...it's out there.  

Oh, but I could delete my account!   Nope.  That stuff is stored on servers at Facebook and Twitter and Instagram.  All it takes is a valid subpoena for Facebook, Twitter, etc  to produce things from your online accounts in a criminal case.  Therefore, I caution you against putting offensive things online that could be construed in a negative light against you.  

---SOLUTIONS & ADVICE---

I'm not advocating for you to never use the internet again.  Just be smart about it.  

I advise all my clients charged with crimes to suspend their Facebook and Twitter accounts during the criminal case.  It's not worth it.  Don't give the prosecutor a chance to google you and discover more ammunition against you.  I know it's hard to unplug...but when your freedom on the line it should be an easy decision. 

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi