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| image courtesy of nerdist.com |
Ithaca and Waterloo New York DWI Attorney explains:
"It's ALL Evidentiary, my dear Watson"
In DWI it’s All Evidentiary,
Dear Watson
Those who are fans of Sherlock Holmes can remember that oh
so famous line. Holmes, the brilliant
sleuth and detective, had an uncanny way of looking at the evidence. Follow the evidence, where does it lead us?
Even modern medicine today has something called EBM, evidence based medicine. Doctors must discover or uncover the truth
behind their patients’ symptoms. Making
a proper diagnosis must occur before starting treatment.
Well, in the world of DWI defense the evidence, again, is
the place we must begin. We must gather all the evidence by both our investigation
and then discovery from the Prosecutor. Then we analyze the DWI evidence, and dissect
it for it’s strengths and weaknesses.
There are, in fact,
five types of DWI evidence:
1. The driving pattern or behavior prior to being stopped
for DWI,
2. Statements or admissions by the person charged with the
DW,
3. Police testing: physical testing as in Field Side
Sobriety or Drug Recognition,
4. Observable demeanor, cognition, articulation, and
mannerisms,
5. Chemical testing of breath and/or a blood sample.
D is for Driving
The best cases to defend generally have either no driving or
merely an equipment violation. The worst
cases to defend have accidents and hurt people. Along the many degrees of the spectrum are everything
in between the worst and the best. Our job is to look over all the driving. Coming from a defense perspective we recognize
that driving is an exercise staying within the lane of travel. How much of what the police say is biased, and
how much is just normal driving?
What did you say to
the police?
Some people don’t say anything to the police after they are
stopped for a DWI, and others can’t stop talking. Sometimes the police act like your friend,
gain your trust, and have you write them a little "I’m so sorry"
statement. The less you say is always best, but we often have
to deal with statements or admissions of guilt.
Are these sobriety
tests or physical coordination exercises?
Police can request you do all kinds of tests. Some tests are recognized, called the FSTs
(field sobriety tests). They are the
horizontal gaze nystagmus test, the walk and turn, and the one leg stand. Many of the other police tests are just “made
up” stuff. Something new is called the
DRE (drug recognition evaluation). Specially
trained officers who are certified give you the recognized tests and a bunch
more to try and figure out what drug or drugs you are on.
How did you look,
walk, talk, and appear to the police?
Police usually say that those that they arrested for DWI
smelled like alcohol, had slurred speech, and bloodshot –watery eyes. Those are typical signs of a drunk. What
about the good stuff you were able to do and understand? You may have walked
normally, followed all their instructions and directions, and showed complete
understanding and responses to a million questions. Your normal mental and physical faculties may
reveal more about your true condition than a few coordination exercises.
Breath and blood
tests don’t usually lie but they may not be accurate.
Taking a sample of your breath and accurately testing it is
dependent on timing, your specific body chemistry, and whether it was properly
obtained. The breathalyzer is based upon
average people but maybe you are not average. The breath machine is most accurate after you
have completely absorbed all the alcohol you drank. The problem is many people are tested while
they are still absorbing alcohol which yields a higher breath alcohol
level. Often the police don’t follow all their
procedures properly and they may wind up testing a highly concentrated stomach
or mouth alcohol sample instead of a deep lung sample.
BOTTOM LINE:
In DWI defense, the evidence must always be challenged for
accuracy, for truthfulness, and for consistency. As a whole - does it all make sense? If someone has an extremely high BAC reading,
why didn’t they need to use a bathroom for three or four hours? Everything must be weighed and looked at as a
whole - not as separate individual pieces.
BY Attorney Mike Cyr
NEWMAN & CYR
The DWI Attorneys
www.ithacadwi.com
www.fingerlakesdwi.com
www.facebook.com/ithacadwi
www.twitter.com/ithacadwi
Copyright Newman & Cyr 2016
Educational Purposes Only.
