Monday, April 25, 2016
WHY DID I GET 4 CHARGES
FOR A SINGLE DWI ARREST
IN NEW YORK?
In a recent video, I discuss how you can be charged with 4 different crimes from a single DWI arrest in New York.
If you mix alcohol and any other substances (even over-the-counter meds), you could be charged with four misdemeanors for a single arrest...
1. DWI "common law" VTL 1192.3
2. DWI over .08 VTL 1192.2
3. DWAI Drugs VTL 1192.4
4. DWI combo VTL 1192.4a
The problem with a scenario like this is that we have to DEFEND multiple charges --and any time somebody is charged with more than one thing, it complicates any defense because it gives the prosecutor more ammunition to convict you.
If you have been charged with any of the above, give us a call and we will be happy to discuss your situation in depth. 607-229-5184
Or find us online!
BY NEWMAN & CYR
Copyright 2016. Educational Purposes Only.
Thursday, April 21, 2016
|image courtesy imdb|
The Problems with New York DWI Alchemy: Turning Breath into Blood
You know, New York State is a blood state. That does not mean that NYS is out for blood although with our taxes that is not an unfair statement... Whether the police decide to request your blood or just your breath, in the end it all comes down to a BAC. What I mean is that when it comes to a DWI “per se” charge, driving while intoxicated New York DWI laws that focus upon a measured quantity of alcohol are all based upon Blood Alcohol Concentration. This is true even when a breath test is used to measure your BAC.
Our Vehicle and Traffic Law statute section 1192 gives two BAC based criminal charges. A DWI based upon a .08 BAC or higher or the more serious Aggravated DWI where your blood alcohol concentration level was .18 BAC or higher. These are blood numbers not breath numbers. If they were breath they would be "BrAC" not BAC.
Different DWI Breath Testing Machines but One Methodology
The problem is that depending upon where you are arrested in New York State you might have been tested with one of three types of breathalyzers. In the city, the New York City Police Department has the Intoxilyzer 8000, while the upstate police departments within the cities, towns, and villages have the Datamaster DMT, and lastly our state troopers (around the state highways) all use the newest breath machine, the Draeger Alcotest 9510.
So what do all these breathalyzers all have in common?
They all take a breath sample to measure your body’s alcohol level --not a blood sample. The reading off the unit is in BAC not a BrAC. It doesn’t give your breath alcohol concentration measurement, it gives your BLOOD alcohol measurement.
Which means that for the most part the majority of chemical testing for DWI in New York State is INDIRECT alcohol testing of your blood. The machines take in a breath alcohol sample, and then spits out a blood alcohol measurement.
Changing a Breath Alcohol Measurement to a Blood Alcohol Measurement
The breathalyzers all have software that runs a program to do this calculation of changing breath alcohol into a blood alcohol concentration. The breath testing software, and it’s algorithms are all secret. To do this calculation the machine must assume a great many things about you: like what your ratio of breath to blood is, what your body temperature is, what your elimination rate for alcohol is, etc, etc
The Questions that Arise from Indirect Measurements of Blood
So much doubt resides between what you give the machine as your breath alcohol sample, and what the machine actually calculates as a BAC number. This is where your true guilt or innocence may reside.
Can we trust an indirect number? Can we fully trust the results of a one-time sample? Can a judge or jury decide your fate beyond a reasonable doubt without more than that? Can they? The answer is yes, but should they? the answer is a most definite NO.
In any New York breath test DWI, the importance of looking at everything in the totality of the circumstances is something every defense must highlight. We cannot allow judges or juries decide the fate of a person based upon this type of testing alone. The DWI chemical testing of breath, one time, indirectly calculated to measure blood alcohol concentration, and based upon an average person is not the making of justice.
Do you have a question about a NY DWI breath test case or Refusal case? Give us a call at 607-229-5184.
Or find us online: www.ithacadwi.com
BY NEWMAN & CYR
COPYRIGHT NEWMAN & CYR 2016. Educational Purposes Only.
Wednesday, April 20, 2016
The New York DWI Lesser Included Offense of DWAI Alcohol
A "LIO" or lesser included offense is important at a DWI trial as well as in DWI plea bargaining in New York. A lesser included offense (criminal or non-criminal) lacks one or more of the elements of a higher level crime.
A DWAI is driving while you are impaired while a DWI is driving while you are intoxicated. Intoxicated in this context means more drunk or out of it than being merely impaired. Intoxication or impairment are really words or terms of degree. Impairment is the lower degree of alcohol use in New York while intoxication is considered the higher use. In New York State in particular, intoxication charges and the word intoxication itself are specific to alcohol alone and not other drugs.
In terms of offense levels, DWI is a crime (a misdemeanor), and DWAI is (a violation=non-criminal). Criminal behavior is generally of a higher degree and standard than non-criminal behavior.
It is impossible to commit DWI (the greater offense) without, at the same time and by the same conduct, also committing DWAI (the lesser offense).
The lesser included offense of DWAI may play an important role in a New York DWI. These include:
• Plea bargaining: Plea bargaining any DWI down to a DWAI is in the discretion of both the court and the prosecutor.
• Jury charge (jury instruction): In looking at all the DWI evidence, is there is any reasonable view of the evidence that you may have committed the lesser offense of DWAI but not the higher offense of DWI, then the jury may be instructed on the lesser offense.
• Guilty plea: Whether your plea acceptance was sufficient. When you plead guilty to the lesser included offense of DWAI, then no factual allocution (acceptance) is required. In other words you will not have to provide the judge with specifics as to your alcohol use and driving at the time of your arrest.
If you have questions about a New York DWI or DWAI charge, call us at 607-229-5184.
BY NEWMAN & CYR
Or find us online!
COPYRIGHT NEWMAN & CYR 2016. Educational Purposes Only.
Tuesday, April 19, 2016
What Constitutes a New York DWI Chemical Test Refusal?
Often we get a phone call, and people find they have only been charged with one DWI. You can be charged with one DWI without taking a blood test or a breath test.
This is called "common law" DWI, and it is just based upon your conduct and the police observations of that conduct. Sometimes you may walk, talk, and act like you are intoxicated... when you are not.
But I Never Refused or Did I?
But the bigger question that many people have is: "...but I never really refused to take their test... so why was I said to have refused or marked down as a refusal?"
The Express DWI Refusal versus the Constructive DWI Refusal
DWI Refusals can come in different varieties: one is called the express refusal, and the other is called the constructive refusal. Express means just that, you clearly expressed yourself to the police. You probably said “no, no, no, I’m not taking your test,” that one is easy to understand. But the New York constructive DWI refusal is a bit more complex.
A DWI Refusal Can Be Words or Conduct
If you (by “words or conduct”) showed yourself to be uncooperative with taking a test or any part of a test of your blood or breath then bingo, you are marked as a refusal.
A refusal can be placing gum in your mouth, smoking a cigarette, closing your eyes, falling asleep, telling the police to #$%@%…, not blowing hard enough, not blowing long enough, not blowing slow enough, not blowing soft enough, not taking the test they pick, not taking the test when they say, not giving enough effort, not sitting up straight, not following directions, not paying attention, not talking, drooling into the machine, spitting into the breathalyzer, not giving an adequate sample of breath, or pretending to blow into the breathalyzer. Etc etc etc...
The police will mark you as a refusal if they feel that in any way, shape, or form you are intentionally or willfully or deliberately refusing to take their test or tests.
Yes, DWI refusals are highly subjective, and based upon a police perspective.
If you have any questions about a New York DWI Refusal case, call us at
Or you can find us online:
NEWMAN & CYR, Attorneys at Law, PLLC
Copyright NEWMAN & CYR 2016. Educational Purposes Only.
Tuesday, April 5, 2016
|image courtesy wordpress.org|
New York DWI and the Ambiguity Effect
Mind Hacking a New York DWI Plea Bargain
Much as no one likes blind dates or dark rooms, fear of the unknown is ever present in our day to day lives. People naturally hate ambiguity, and will avoid making choices where the outcome is unknown. This is present with much of our decision making but even more so when it comes to dealing with criminal charges.
Why do more than 95% of all criminal cases and even DWIs , get resolved by plea bargaining? People would prefer to choose a known over an unknown. Your mind is forever influenced by the ambiguity effect. Your decision making is always affected by this bias of ambiguity or lack of information.
In DWI cases the unknowns are everything that can happen after a trial. So what can happen after all?
1. You can be found guilty to some or even all of the charges.
It is common for the police and the district attorney to charge everything they can upfront. With a New York DWI we usually see multiple DWIs and multiple tickets. If the jury comes back guilty in some DWI cases this can mean being found guilty of common law DWI (VTL 1192.3) based upon the police observations of your behavior, being found guilty of another DWI called DWI "per se" based upon a specific BAC (blood alcohol concentration) or even multiple "per se" DWIs, like aggravated DWI if you were .18 BAC or more, and additionally the .08 BAC DWI.
If there were other drugs involved you could be found guilty of DWAI (driving while ability impaired by drugs,) and if alcohol and other drugs were charged, additionally DWAI combo (drugs plus alcohol). So you could be found guilty by the jury of two, three, or even four DWIs.
With a Plea bargained DWI you usually will only plead to ONE DWI or DWAI charge. Believe me when I say the DMV in NYS, and DMV in other states will punish your license privileges even more with more than one DWI. Each charge carries additional fines, and potentially increases in other punishments. It's not a pretty picture.
2. The jury doesn't decide your punishment to those charges.
In some states juries weigh in on sentencing and punishment. In New York State juries don't make the final decision on punishment, they just decide guilt or innocence of the charges given to them. Judges set sentencing of what the punishment is. The district attorney on a non-plea bargained (non-negotiated) DWI case can ask the judge for any legal sentence.
What is any legal sentence in a New York State DWI case?
Each DWI or DWAI misdemeanor charge can carry a sentence of up to one year in the county jail or three years of probation or a combination of jail plus probation. In a New York DWI felony case this is ratcheted up to dramatically to one and half to four years in state prison or five years of probation or a combination of prison plus probation. They can also ask for increased fines, additional conditions of release, and additional obligations to the court. This can range from mandatory and monitored drug/alcohol treatment to many hours of community service.
These are the main two reasons that a New York negotiated DWI plea bargain can alleviate fear and bring some certainty to a scary process. In the next blog post we will discuss bringing creativity to sentencing and negotiating plea deals.
BY NEWMAN & CYR
You can call us at: 607-229-5184
Or Find us online:
Copyright 2016 Newman & Cyr PLLC. All rights reserved.