|image courtesy slideshare.net|
Wednesday, December 30, 2015
Defending an Ignition Interlock Device
violation in Ithaca, NY and
If you pled or were found guilty of a misdemeanor level DWI or higher, then you must have the Ignition Interlock Device installed on your car. The period ranges from 12 months to 5 years if on felony probation (or longer if the DMV deems it so...).
If you blow into the device and it registers a 0.05% BAC or higher, then you can be violated for failing to comply with the program. Technically, what you will be charged with for violating the IID will depend on how you were originally sentenced.
If you were originally sentenced to a one-year Conditional Discharge, then you will be charged with a violation of the CD (along with a separate misdemeanor charge for the violation itself). If found guilty of the violation, the DA can ask for a change in your sentence--and the Judge has the authority to alter your previous sentence and re-sentence you up to the maximum penalties of whatever you were convicted of...for a DWI misdemeanor, that means up to 1 year in county jail or 3 years of probation (or some combination) or they could extend the CD or add community service, etc. The sky's the limit.
If you were originally sentenced to 3 years of probation, then your probation officer could file a violation of probation for a violation of the IID (in addition to a new crime for the violation itself --same as above). In this scenario, the probation officer can make recommendations for new sentencing to the Judge--and the Judge has authority to re-sentence you up the maximum penalty of whatever you were convicted of... same principle as above. Problem with a probation sentence is that the Court has already sentenced you fairly harshly by putting you on probation in the first place... The only way to increase a penalty from there is usually a jail sentence. It will often depend upon what your probation officer says about you --and how compliant you have been while on probation.
If you were sentenced to a Felony DWI, then the potential consequences are really serious (up to 4 years in NY State Prison)...
Problems Defending an IID Violation --Things to Know & Understand
If you went through the criminal process for a DWI, then you hopefully understand that during the original criminal case, the burden to prove whether or not you committed a crime was on the Prosecutor to prove their case "beyond a reasonable doubt." This is the highest level of proof in the legal system.
Unfortunately, if you are charged with a violation of the IID, the standard of proof is decreased substantially to a civil standard called a "preponderance of the evidence." In New York and elsewhere, this civil standard is very easy to meet for a Prosecutor. They just have to prove that "it was more likely than not" that you committed the violation... in otherwise, they just have to prove a 51% chance that you did it! That's a low standard--barely more than a coin flip.
In the majority of IID violation cases, the Prosecutor has a report from your device that has your picture, the date, and the BAC number at 0.05% or higher. Due to the low standard of proof, they can typically prove their case with little difficulty.
In this scenario, you are entitled to a hearing before a Judge, but not entitled to a jury. That also limits whatever defense we can mount because each Judge has their own personality and method of dealing with IID violations. Some Judges are more lenient and some Judges are harsh. It is the luck of the draw.
What strategies can we use to defend an IID violation?
In criminal defense, there are usually two avenues to defend any case-- a legal defense (i.e. challenging the PROOF that you did something) and an "equities defense." An Equities defense is based on who you are and arguing that justice can be served by NOT punishing you harshly. This type of defense typically requires some additional drug/alcohol treatment and assessment by an OASAS certified provider. It also requires any info we can use to show that you are a good person who made a mistake. The goal is to show (as best we can) that your IID violation was an aberration, not a pattern of behavior. [although in reality, this is really your second strike against you because of the original DWI charges...]
In our experience, we get the best results for our clients when we know both the ADA in charge of the case and the Judge. Each ADA and Judge has their own outlook on how to handle/punish these cases. Depending on the Judge or ADA, some penalties cannot be avoided (in some towns around Ithaca --some jail should be expected for an IID violation); however, there are ways to try to limit the potential punishments by being diligent and thorough. We often ask the opinion of the county STOP DWI Monitor as to what they think your sentence should be. This is done on a case-by-case basis...not in every case.
If you have been charged with an IID violation or violation of your Conditional Discharge or Probation, you can give us a call for a FREE consultation at 607-229-5184.
By Attorney Mike Cyr
Copyright Cyr & Associates 2015
Tuesday, December 29, 2015
Ithaca DWAI Drug Lawyer: Metabolites of a drug in your blood are NOT ENOUGH to convict on DWAI Drug in New York
|image courtesy of Marijuanacentral.com|
PRESENCE OF A METABOLITE ONLY
IN YOUR BLOOD
IS NOT ENOUGH TO CONVICT
UNDER DWAI DRUGS (VTL 1192.4)
IN NEW YORK!
DWAI Drugs (VTL 1192.4) cases are difficult. There are very "science-y" and require detailed analysis of the blood test result. The most common 1192.4 charge is based on marijuana consumption...
Delta-9-Tetrahydrocannibinol (THC) is the active psychoactive chemical compound in Marijuana. However, the drug can remain in your system, in some form or another, for a very long time...even up to 30 days or longer (if you are a frequent user).
After the psychoactive ingredient (THC) has been processed and metabolized by your body, a drug test will still indicate the presence of the metabolized version...THC-COOH (doesn't contain Delta-9).
Why does this matter?
If you are charged with DWAI (Driving While Ability Impaired by Drugs) in New York, then the police will require a blood test. A forensic crime lab in New York will test your blood via Headspace Gas Chromatography for the presence of any number of illicit and prescription substances...
A DWAI Drugs case often hinges on the blood test result. (unless you were subjected to a Drug Recognition Exam by a certified police DRE expert...a complicated topic for another post)
For a marijuana case... if the blood test result indicates the presence of DELTA-9 THC, then the prosecutor has a potentially strong case. However, if the blood test reveals only the metabolite of THC (i.e. THC-COOH), then the prosecutor likely has an insufficient case (and it should be argued as such by defense counsel).
In 1993/1994, two separate courts in New York determined that "the mere presence of metabolites in blood insufficient to prove controlled substance actually impaired the ability of defendant to drive." People v. Kahn 610 NYS 2d 701 (Nassau Co Ct, 1994) and People v. Mercurio NYLJ 8/30/93, p25 Col 5 (Suffolk Co. Ct). The important thing to note is that in BOTH of the above cases, there was also bad driving! Even when coupled with bad driving (weaving, etc) that would normally indicate impairment to some degree, both courts ruled based on the testimony of forensic toxicologists that the metabolites alone in the blood were not enough to find the defendants guilty of 1192.4.
Unfortunately, these cases were not decided by the New York Court of Appeals (the highest court of the state), so the issue could be further argued in the future in another Court. But based on what we know about the science behind drug consumption in 2015, it would fly in the face of logic to go backward on those cases. The very definition of "metabolite" means that your body has already processed the chemical... so the active effects should be over (i.e. no impaired driving).
Drugs are not quantified in New York for a DWAI drug case.
Unlike alcohol which is quantified by the percentage of Blood Alcohol Content (BAC) at 0.08 or higher, there is no quantifiable way that drug impairment is measured in New York. This makes drug DWAI cases harder because the prosecutor usually has no frame of reference as to how impaired you were...
If you are charged with a low BAC number in New York (close to 0.08% BAC), then a prosecutor may go easier on you than somebody who is Aggravated (over 0.18% BAC), They have a relative frame of reference to make that decision. The same cannot be said about DWAI drug cases... that makes it more difficult to argue on the defense side of things.
VTL 1192.4 cases are tough, but that doesn't mean that are indefensible. If you are charged with a DWAI drugs case, we highly recommend that you retain an experienced DWAI drug lawyer immediately. Time can be critical in demanding evidence in these cases.
If you have a questions about a DWAI drug charge, call us at 607-229-5184.
By Attorney Mike Cyr
Copyright Cyr & Associates 2015
Tuesday, December 22, 2015
|image courtesy thetruthaboutcars.com|
New York Police Officers MUST
take/impound your car if you are
arrested for Aggravated Unlicensed Operation in the 2nd or 1st degrees
We represent people that have issues with drunk driving and other car-related crimes. One of the most common charges we see is Aggravated Unlicensed Operation. This is the New York version of "driving on a suspended license." It happens a lot.
We have information about each of these crimes on our website...www.ithacadwi.com
Here are the links:
These crimes are serious in New York. 3rd is a B misdemeanor. 2nd is an A misdemeanor. Finally, AUO 1st is a Class E Felony (looking at 4 years in State Prison!)
If you are stopped by the police and arrested for AUO 2nd or 1st, then the police MUST impound your car (VTL 511-b).
If the car is registered in your name and there is nobody else with you in the car that could legally drive it--the police must impound the car. Then, the District Attorney's office can decide if they want the car to stay impounded for the duration of the case as "evidence of the instrumentality of the crime." (This is uncommon unless there is a car accident involved). However, you/the owner of the car are responsible for all towing and impound fees associated with the police seizure.
If the car you're driving gets seized by police and it is not yours (i.e. borrowed or a rental car), then there are some nitty-gritty procedures to get it back, and for getting paid back for the associated fees and stuff from the impound lot.
If you get charged with an AUO (of any degree) in New York, we strongly urge you to contact a local criminal defense attorney who handles these kinds of cases. You are welcome to call me at 607-229-5184.
By Mike Cyr
Cyr & Associates Copyright 2015
Monday, December 21, 2015
|gif courtesy of sodahead.com|
It's official, the new & updated
It's been a very long process over the past 5 months, but the website update came out great. I've very proud of the work and information on the site --so check it out if you get a chance. My blogging fell off a bit out of necessity over the past few months, but now that the site is live, I can get back to the important work of keeping past, current, and prospective clients (and the general public) informed about DWI defense law updates and other legal stuff with my blog, facebook, twitter, and YouTube videos.
Hope everybody enjoys the new website.
Finally, and most importantly, Merry Christmas and Happy Holidays to you and yours!
Copyright Cyr and Associates 2015