|image courtesy cccacademy.com|
Tuesday, November 24, 2015
DID YOU KNOW....
that Thanksgiving Feast can cause
higher levels of Blood-Alcohol in Drivers?
For starters -- WHAT?!?
Well, when your body absorbs alcohol after you've eaten a big meal... you may not yet recognize how intoxicated you are.
To understand this concept, I will explain how alcohol gets absorbed into the blood stream (and ultimately affects the brain).
Absorption of Alcohol on Empty Stomach
Alcohol will be absorbed into the blood stream (mostly by way of the small intestine) at a much faster and constant rate when you drink on an empty stomach.
Scientists estimate that it takes 30 to 90 minutes to reach a peak BAC level on an empty stomach.
In 1991, the Journal of Forensic Sciences, did a study where 77% of participants reached peak BAC levels in 45 minutes and 97% reached peak within 75 minutes.
(JFSCA, vol. 36, no. 2, March 1991).
This just means that across the board --people get drunker faster on an empty stomach. This is common knowledge for most people.
Absorption of Alcohol on Full Stomach (i.e. Thanksgiving!)
There's a valve in the bottom of the stomach that keeps food in there for digestion. This valve is called the PYLORIC VALVE. While you eat, the valve stays closed so your stomach can do it's job of digesting and breaking down the food. Once the food is broken down (into a semi-liquid substance called CHYME), the Pyloric valve opens so nutrients (and anything else in your stomach) can be absorbed fully into the small intestine.
If you are drinking during or following a large meal, then the alcohol in your stomach is DELAYED in getting absorbed into your blood stream ---thereby its DELAYED making it's way to your brain --so you may feel sober for a longer time.
While food is in your stomach, some alcohol is absorbed into your blood through some absorption in the stomach, but most of the absorption happens in the small intestine.
When the Pyloric valve opens, all the alcohol in your stomach gets absorbed into the blood via the small intestine.
What does this mean?
It means that if you eat while drinking or after eating a full meal, it can take up to 3 hours to reach peak BAC levels. Even in studies that disagree with the 3 hour mark, they agree that across all tested subjects, eating will increase peak BAC times by 21% or more (at a minimum).
Intoxication Test Evidence, Criminal and Civil, Fitzgerald and Hume, s. 2.5, pg 13 (1991)
Some Aspects of Alcohol in Body Fluids Part II, Bayly and McCallum, J. Med. Austl. 172,173 (1959)
The Effect of Food on Alcohol Absorption and Elimination Patterns, Journal Forensic Sciences JFSCA Vol 38 no. 2, March 1993 (pp 285-91)
Handling the DWI Case in New York, Gerstenzang and Sills, Ed. 2013-2014
If you're eating while drinking --it will take longer to reach peak BAC levels.
What is the POINT of all this?
On Thanksgiving, a holiday centered around eating and drinking, there is a much higher chance for DWI because you may "feel fine" but your BAC level could be significantly elevated if you are pulled over and submit to a breath or blood test.
The food in your stomach makes you feel sober for longer --so you may be inclined to drink more than usual and ultimately, get more intoxicated.
So be careful and be smart.
Have a Happy Thanksgiving!
By Attorney Mike Cyr
Friday, November 20, 2015
|Ron Burgundy...asleep at wheel. Image courtesy marketmenot.com|
DEFENDING A DWI in NY
...when you're caught asleep in your CAR
This is a pretty common occurrence in New York and every other state in the USA. Usually the most common scenario that leads to this situation is:
-You're out drinking
-You have too much
-You don't have a plan to get home
-You start to drive home and realize it would be safer to just pull over
That's when you decide to just "sleep it off" in your car. That's where the police find you, and you get charged with DWI or worse.
PROVING "OPERATION" in New York
If you are charged with a DWI, that means in order to prosecute you, the government must prove beyond a reasonable doubt that you, in fact, did everything that meets every single element of the crime.
For a DWI that means:
-You DROVE (actually moved or intended to move vehicle)
-a MOTOR Vehicle (must have a motor -excluding boats or snowmobiles [they have separate charges])
-While you were INTOXICATED (either common law or over 0.08% BAC)
-on a public road or street
In a "Sleeping Case" the government must prove beyond a reasonable doubt that you drove --or intended to move the vehicle. In general, there are two different types of "operation issue" cases: 1) the type where a driver drove someplace while intoxicated and pulled over to sleep it off; or 2) where the driver never drove or intended to drive and just tried to sleep it off in their car--but still got charged.
These cases are tricky because the government can prove operation by circumstantial evidence. In other words, they can make an inference that you drove your car based on some of these common factors:
-you admitted to driving
-the engine was running or hood was warm
-a witness saw you drive
-camera footage shows car in motion prior to your sleeping
-there was a car accident (you drove off road)
-car was found in a place that could only be reached by driving (like side of a highway)
In the TYPE 1 case (where you drove then were found asleep in your car), it is usually easier for a prosecutor to prove that you, in fact, drove the car. That means that the "operation" element of the crime can typically be proved by the sort of circumstantial evidence mentioned above. However, that doesn't mean that the case is indefensible. It means that we would have to focus on something other than whether or not you drove a car.
Some examples include: We would try to fight the breath or blood test (unless you refused), or fight the field sobriety tests (if you took them), or any other aspect of the case. It is always prudent to put your best foot forward so the focus should be on the weakest aspects of the government's case against you.
HOWEVER, if you are charged in a TYPE 2 case (where you were found asleep but you DID NOT actually drive), then we potentially have a case we could fight all the way to trial. The prosecutor must prove beyond a reasonable doubt that you Operated a Motor Vehicle. Under NY case law, Operation includes a requirement of your "intent to move" the car. They must prove that. It makes their job harder if the truth of the case is that you never intended to drive and just wanted to sleep. But it is still an absolute necessity to retain an attorney who will fight for you because District Attorneys generally won't DISMISS A CASE without tons of good reason --and sometimes, even if the reasons are good, they may feel compelled to try a case to completion.
Even in a TYPE 2 scenario, a typical DA will worry that even if you didn't actually drive, you were drunk and in a car--and that presents a potentially dangerous situation for anybody else on the road. That's the concern we are fighting from the beginning of any case like this. Both the Judge and Prosecutor will be worried about that behavior. So we have to take steps to prove that --even in the event of a dismissal of the case--that you are not a danger to people on the road.
*If you are charged with a DWI or DWAI (Drugs) after falling asleep in your car, give me a call for a Free consultation:
By Attorney Mike Cyr
CYR & ASSOCIATES 2015
Thursday, November 5, 2015
Ithaca Watkins Glen DWI Attorney: YOUTHFUL OFFENDER STATUS in NY. College Freshmen/high school kids--Pay attention!
|Image courtesy memecrunch.com --MY COUSIN VINNY. Hilarious movie.|
Who Gets New York
"YOUTHFUL OFFENDER" STATUS?
What does it mean?
If you have never been charged with a crime before ---then you will qualify for MANDATORY Y.O. status. This is a good thing. This means that no matter what happens in the course of the case -- you will NOT get a permanent criminal conviction on your record.
In New York state, a misdemeanor or felony conviction will be on your permanent record for LIFE. There is no expungement of criminal records in New York. I doubt there ever will be. That means that criminal charges are incredibly serious because having a record can prevent you from getting into colleges, from getting good jobs, and make many professional paths impossible.
Youthful Offenders are also called "Juvenile Offenders."
This particular law is listed under Section 720.20 of the New York Criminal Procedure Law which sets forth the circumstances under which a court may make a finding that a person is classified as a youthful offender.
For misdemeanor convictions, such as first time DWIs, CPL § 720.20 states:
Upon conviction of an eligible youth, the court must order a P.S.I. (pre-sentence
Investigation) of the defendant. After receipt of a written report of the investigation
(interview) and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a Y.O., youthful offender. Such determination shall be in accordance with the following criteria:
Where the conviction is had in a local criminal court and the eligible youth had not prior to commencement of trial or entry of a plea of guilty been convicted of a crime or found a youthful offender, the court MUST find he is a youthful offender.
So in summary, no prior criminal convictions and no prior status as a Y.O. --CPL § 720.20(d) provides that when an individual is found to be a youthful offender, " the court must direct that the conviction be deemed vacated and replaced by a youthful offender finding; and the court must sentence the defendant pursuant to section 60.02 of the penal law."
Youthful Offender status ALSO means that the Court orders the records to be sealed from the public.
*Please note that public school officials will be notified (only the notice of adjudication). This notice is kept apart from all other school records and documents. Y.O. status also means that there is no conviction of a crime or any other offense.
Section 60.02(1) of the Penal Law limits the maximum sentence that may be imposed upon an individual adjudicated a youthful offender who otherwise would have been convicted of a misdemeanor to "a definite or intermittent sentence of imprisonment with a term of no more than six months…”
HOW DOES YOUTHFUL OFFENDER AFFECT A DWI CHARGE IN NEW YORK?
An unusual benefit of being a Youthful Offender for a DWI is that it is more beneficial to plead guilty to the criminal misdemeanor VTL 1192 (2) or (3) than to have a lower traffic violation of the DWAI "Driving While Ability Impaired by Alcohol" VTL 1192 (1). [this is only true for YO cases]
This is true for a number of reasons:
1. The loss of license will be the same under 21 years of age= one year.
2. The government (the prosecutor) cannot use the DWI against you for future enhancements of DWI. So no use of the DWI as a predicate offense (so even if got charged with another DWI after age 19--they cannot charge you with a felony offense).
3. Sentencing guidelines for the DWI will be restricted by the YO status. (lesser sentences than normal)
The only negative for a YO DWI is the increased fines for a DWI than for a DWAI.
If you are aged 16-18 years and 30 days--then you could potentially qualify for YOUTHFUL OFFENDER treatment in New York Courts.
Call us at 607-229-5184 to discuss your case.
DWI or criminal charge.
By Attorney Mike Cyr