Ithaca Cortland DWI lawyer: Is Refusing a Breath Test a CRIME in New York?

IS REFUSING A BREATH TEST

A CRIME 

in New York?

This video is about whether it is against the law in New York State to refuse to take a breath test. In NYS, if the police believe you are under the influence of drugs and/or alcohol they can ask for a chemical test of your breath, blood, or urine.

Police can ask for more than one test. In other words the police can first test your breath, and then ask for a blood sample, and then even ask for a urine sample. But the good news is, you can lawfully refuse their requests for a body fluid sample.

This comes with a few penalties: one against your license to drive in NYS, and the other in a court of law. The in court penalty is a jury instruction that states that the jury can infer that your refusal is because you were conscious of your guilt. It is called the "consciousness of guilt" instruction and can be very damning coming directly from the mouth of the "impartial" judge.

If you have questions about a DWI refusal or a DWAI drugs refusal case in Ithaca, Watkins Glen, or the surrounding counties, give us a call, shoot us an email, or fill out the form on our website:

607-229-5184

BY NEWMAN & CYR

Or find us online! 

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

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*Educational Purposes only. Copyright 2016 NEWMAN & CYR PLLC.

Ithaca DWI lawyer: What is the Lesser Included Offense for DWI in New York?

Ithaca DWI Defense Attorney:

What is the Lesser Included Offense

for DWI in New York?

In this video, Attorney Larry Newman explains the Lesser Included Offense to a DWI charge in the state of New York... 

There are different levels of misdemeanor DWI charges in New York state. You could be charged with either Aggravated DWI (based on a Blood Alcohol Content of 0.18 or higher) or you can be charged with misdemeanor DWI "common law" or DWI over 0.08. However, as we explained in a companion video, a Lesser Included Offense is a crime or violation that has some (but not all) of the same elements as the larger crime. 

In a DWI context, DWI over .08 is a lesser included offense of Aggravated DWI. DWI over .08 has the same elements as Aggravated,but the BAC level is lower. 

There is a lesser included offense to regular misdemeanor DWI --it is called "Driving While Ability Impaired by Alcohol" (DWAI for short). 

DWAI is the lesser included offense to both DWI common law and DWI over 0.08 --because it has the same elements--just a lower level BAC (0.06-0.07)

If you have questions about a criminal case or DWI case in NY, call us: 

607-229-5184

BY NEWMAN & CYR

Or find us online! 

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

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*Educational Purposes only. Copyright 2016 NEWMAN & CYR PLLC.

Ithaca Criminal defense lawyer: What's a "Lesser Included Offense" in New York?

What is a "Lesser Included Offense"

in New York?

In this video Ithaca Criminal defense attorney Larry Newman explains the meaning of a "lesser included offense" in New York. 

To break it down into simple terms, every crime in New York has pieces that must be proven.  Each piece is called an "element" of the crime.  The Prosecutor has the burden to prove beyond a reasonable doubt that each element is present for somebody to be convicted of a crime in NY.  

Some crimes are more serious than others.  New York has a wide range of criminal offenses and as crimes become more serious--there are usually more elements to prove.  

A "lesser included offense" is the same type of crime --but usually one or two grades less serious.  It has all but one or two of the same elements as the larger more serious crime.  

If you think of a crime as a shoebox --you could fit the lesser included offense inside it.  

If you have questions about a criminal case or DWI case in NY, call us:  

607-229-5184

BY NEWMAN & CYR

Or find us online!  

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

DISCLAIMER:  If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

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*Educational Purposes only. Copyright 2016 NEWMAN & CYR PLLC.

Ithaca Criminal defense attorney: What does it mean to get "into evidence" at trial in NY?

What does it mean to get

"into evidence" at a trial

in New York?

In this video, Ithaca Criminal defense attorney Mike Cyr explains what it means to get something "into evidence" at trial in New York...

Every single piece of evidence must meet certain NY evidence rules and procedures to be seen or heard by a Judge or a Jury --and considered when the they are determining the outcome of the case.  

Our job as criminal defense attorneys is to evaluate whether or not the prosecutor will likely be able to get their evidence to be seen by a Judge or Jury in NY.  We must do that evaluation in every single case we defend. 

If you have questions about a criminal case or DWI case in NY, call us:  

607-229-5184

BY NEWMAN & CYR

Or find us online!  

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

DISCLAIMER:  If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

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*Educational Purposes only. Copyright 2016 NEWMAN & CYR PLLC.

Ithaca DWI lawyer: Is the CHEMICAL (Breath) Test AUTOMATICALLY seen by a Jury in New York?

Ithaca DWI lawyer:  

Is the CHEMICAL (Breath) Test Result

AUTOMATICALLY seen by Jury 

in New York? 

In this video, Attorney Mike Cyr explains whether a Chemical Test (breath) AUTOMATICALLY seen by a Jury in New York...

Short answer:  NO.  Not automatically. 

The Prosecutor has to prove three primary things in it's case-in-chief to be able to enter the Chemical Test Results into evidence (which means they will be seen by a Jury):

1.  Properly maintained and calibrated machine

2.  Chemicals in machine were proper

3.  Officer who administered test followed proper procedures and protocols.

If they meet these requirements, then the Breath Chemical Test will be shown to the Jury.  

If you have questions about a DWI case in New York, call us: 

607-229-5184

Or FInd us Online!   

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

 BY NEWMAN & CYR

DISCLAIMER:  If you or a loved one is charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of your case -- including the potential loss of your freedom.

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*Educational purposes only.  Copyright Newman & Cyr PLLC 2016.

Ithaca Cortland DWI lawyer: Is the Road Side Breath Test Admissible at Trial in New York?

IS THE ROAD SIDE BREATH TEST

(Preliminary Breath Test or PBT)

ADMISSIBLE AT A DWI TRIAL

IN NEW YORK?

In this video, Ithaca DWI lawyer Mike Cyr explains that the Road side Breath Test (also referred to as the "Preliminary Breath Test" or PBT by police) is NOT admissible at a DWI trial in New York. 

NO.  It's not admissible.  The PBT is a hand-held device that is essentially a large battery that is not as accurate or reliable  (and doesn't have safeguards on it to make sure the test is good...) as the chemical breath test back at the police station.   Once the unit gets too old and degrades, the police throw it away!  They don't even bother to repair it.  The road side test is used as a measuring device to see if you have been drinking.  If it tests positive on the side of the road, that will add to the police officer's probable cause argument to bring you back to the station to ask you to do a chemical test (and field sobriety testing), etc. 

If you have any questions about a DWI case in Ithaca or Watkins Glen, NY (or surrounding areas), call us for a FREE CONSULTATION:

607-229-5184

By Newman & Cyr

FInd us online!  

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

*DISCLAIMER:  If you or a loved one if charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom.

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*Educational purposes only.  Copyright Newman & Cyr PLLC 2016.

Ithaca Watkins Glen DWI lawyer: Using TIMING to Defend DWI in New York

Using TIMING to Defend DWI 

in New York

In this video, Attorney Larry Newman discusses how we use TIMING to help defend DWI cases in the Finger Lakes region of upstate New York.  

We had a specific case where a guy was given a blood test BEYOND 2 hours from the time of arrest.  In NY, they're supposed to give a blood or breath test from the time of the Road side breath test (Preliminary breath test or PBT) or the time of arrest.  This is not a mandatory rule--but it can be used as persuasive.   

If a test is given MORE than 2 hours from arrest or roadside test, then we are allowed to argue that the test is NOT reliable, accurate, or truthful, and we can make that argument to the jury.  

In the case Larry discusses, we were successful in filing motions and getting a great reduction offer just before a trial because we were willing to push the prosecutor and make a solid argument for our client.  As Larry mentioned, no two cases have the exact same result, but this strategy can be successful in other cases. 

If you have a question about a DWI case in New York, call us:  607-229-5184.  

BY NEWMAN & CYR
Copyright 2016

FInd us online!   

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

DISCLAIMER:  If you or a loved one is charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes --including the loss of your freedom! 

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*Educational purposes only.  Copyright Newman & Cyr 2016

Ithaca Cortland DWI defense attorney: Making Excuses or Presenting a Defense in NY

Ithaca College Cornell Commons Sign in Ithaca, by Newman & Cyr, The DWI Attorneys

Ithaca Cortland DWI Lawyer:  

Making Excuses or 

Presenting a Defense

Just the other day, I was accused of all things of making excuses for a client. Silly I thought that a person would categorize a defense attorney's strategy as "making excuses." I stand ready to defend my position of presenting innocent explanations for behavior that some others may view as criminal.

Weaving is Not Always a DWI 

If a car is weaving over the road there could be many reasons for this behavior besides drunk or impaired or high driving. Firstly, no one drives perfectly straight down the road way, we are constantly correcting for road imperfections, and tire responses to those surfaces. That is normal.

1. Any inattentiveness can cause a driver to weave upon a road. This can as simple as a moment to change a radio station or turn up the air conditioning.

2. Distractions are a normal part of day to day driving. Phone calls are legal with a blue tooth in New York but the effect upon the driver is distraction and potential weave. People eat while driving, sing while driving, drink coffee while driving, smoke while driving and while all of these activities are legal they are distracting. Often these distractions are compounded at night due to lighting conditions or weather conditions. Any distraction can cause a weave and then a correction for that weave.

3. If a driver notices a police car following them this can increase their nervousness and anxious driving behavior. It is harder to drive when your heart is racing or you are looking in the rear view mirror. The same thing happens to some people when they visit a doctor. Doctors cannot diagnosis blood pressure due to one high reading, it takes three separate visits. In a doctor's office "white coat fever" much like black and white (police car) fever can cause high blood pressure.

4. The condition of a car can even cause it to weave upon the road. Tires that are bald or not inflated properly or tread that is unevenly worn can cause the car to track irregularly and weave. Car suspensions with problems from the shocks to the struts to the brake pads can all affect a car's performance and balance. 

5. Weaving behavior can also be explained by a bad road. Roads that are pot holed and torn up can cause cars to weave and pull. Some cars with all wheel drive are more prone to road surface issues than rear wheel drive cars. 

So part of my investigation as a DWI defense attorney is to rule out all these innocent explanations for weaving because they are all plausible. Not every weaving driver is drunk and DWI.

If you have questions about a DWI case or a DWI Refusal case in New York, call us:   607-229-5184

or find us online:  www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY Larry Newman, D.C., Esq.

NEWMAN & CYR

Educational Purposes only. Copyright 2016.

If you or a loved one are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes -including the potential loss of your freedom.

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Ithaca Cortland DWI defense lawyer: Why CAN'T it be about the Machine in NY DWI Defense?

WHY CAN'T IT BE ABOUT

THE MACHINE

IN NEW YORK DWI DEFENSE?

In New York DWI defense we usually have a breath test. Most people submit to giving a sample of their breath. That means we have more than one DWI charge. We have the “per se” DWI based upon the amount of alcohol in your body while driving. 

That also means that a judge and sometimes a jury is going to hear a number. It may be way over the legal limit or just barely over but nevertheless this BAC number will need to be dealt with.

Judges Give Direction and Instruction on the law

It’s a well known fact that juries listen to judges. Afterall the judge is to instruct the jury on the law. How it should be applied? What they should use for definitions? Terms like impaired, intoxicated, reasonable doubt, evidence generally speaking need a judge’s  explanation. So naturally juries trust judges to help them make their big decision.

What will the Judge tell them about the New York Breathalyzer?

When it comes to the breathalyzer, the judge will tell them a number of things:

1. This is a recognized and accepted machine to measure blood alcohol concentrations.

2. This machine is reliable if used properly.

3. That the measured BAC number can be considered as evidence in making their determination of impairment or intoxication.

So any DWI defense attorney that starts out by arguing that this machine is crappy, is unreliable, shouldn’t be accepted, or believed is going against the grain completely. This strategy is generally a loser.

The better defenses are in a number of other areas:

First, this machine only takes one sample to determine the BAC. To make a diagnosis of a disease or do anything of importance it is generally accepted to take multiple measurements.

Second, all people are different. This is a machine that is set up for the average person. Well the average person is Chinese, dead, and a woman. If we are merely looking at the average person then there are more female, more Chinese, and more dead people on this planet than any other type. 

Lastly, this machine is set for a body temperature of 34 degrees, while the majority living beings expel breath that is hotter than that. Just like the fast and far travel of a hot cup of coffee, hotter breath can mean a higher BAC number. 

If you have questions about a DWI case in New York, call us:

607-229-5184

or find us online:  www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR
Educational Purposes only. Copyright 2016.

If you or a loved one are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes -including the potential loss of your freedom.

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Ithaca Cortland DWI lawyer: How Important is TIMING in your New York DWI defense?

Welcome to Ithaca, NY!  sign on Route 13 near Buttermilk Falls State Park-
Newman & Cyr, The DWI Attorneys

How Important is TIMING in your

New York DWI defense?

We recently defended a DWI case with an accident. There is nothing unusual about that, but was out of the ordinary was the time of day that the accident occurred. It was at 3:00 in the afternoon.

When Do Most Ithaca, New York DWIs Happen?

Most of the DWI arrests (most not all) happen in the wee hours of the morning on the weekend. Yes, it is true weekends are when the fun happens, and as my kids will tell you, nothing exciting is going on before 11:00pm. Unfortunately, I am at a point in my life that I am in bed by 9:00. As sad as that sounds, most bad stuff happens statistically between 10pm and 4am.  

Why most DWIs, disorderly conduct charges, and criminal mischief, etc. happen is because people are drunk, high, and tired at those late hours. Mental judgment is at an all time low when you combine drugs plus worn down batteries.
People function worst when they are fatigued. Even tired driving can be worse than drunk driving.

The Weekday 3:00 in the Afternoon DWI Accident

So what does it mean if we have a 3:00 in the afternoon car accident, and DWI arrest on a week day? This was not coming from a party, a bar, or even a special event. Most people can understand the birthday DWI or the holiday DWI, but the week day afternoon DWI is troubling to many people.

Why is the afternoon week day DWI a problem?

First, it means a few things, someone began to drink or drug at a very early hour of the day. While we don't know or would have a hard time proving when they started to drink or stopped drinking or even what they did drink - it is likely that this person began to drink and/or drug before noon time if they had accident at 3:00pm.

Second, it means that many more people and/or children could have been placed in danger at that hour of the day, and day of the week. Fewer people are out on the road at the early morning hours on the weekend.

Lastly, it means that we may have a person with a true problem. Early day or week day intoxication is an indication of a problem drinker. This is less likely a blip on the radar, out of the ordinary occurrence, and more a pattern of bad behavior.

Understanding all of this, and the judge's and prosecutor's mindset before waging a DWI defense is important to not only recognize but to prepare for....and to start that client's defense immediately. 

If you have questions about a DWI case in NY, call 

us: 607-229-5184

Or find us online! www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR

Copyright 2016. Educational Purposes Only.

*DISCLAIMER: If you or a loved one has been charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes, including the potential loss of your freedom.

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Ithaca Cortland DWI lawyer: Why DWAI Drug Charges in New York are so Nasty!

Welcome to City of Ithaca, NY sign -Route 13
Newman & Cyr, The DWI Attorneys

Why DWAI Drug Charges

in New York are SO NASTY! 

DWAI drugs is one of New York State's nastiest DWI offenses for a number of reasons. The charge of VTL 1192 (4) DWAI drugs means that you are impaired by a drug (legal or illegal) while operating anything that has a motor (motorcycles gas/electric qualify).

What makes the charge of NYS DWAI drugs So bad to defend?

1. It has the high level of punishment: misdemeanor for a first, felony for a second in 10 years and merely the proof level of a violation level offense

2. There are so many ways for the prosecution to prove you are under the effects/influence of a drug it is not in the least bit funny...

They can use statements/admissions (what you tell them) of your drug use; 

A Blood or Urine Test;

Them finding drugs in your possession or in your immediate control;

The police doing a DRE (drug recognition evaluation);

Then then police can bring charges with one or more than one of the above. 

3. The proof for impairment from drugs is "any extent" of actual impairment.

"ANY extent" is not a big stretch for people (on a jury or a judge) to get their head around.

For all these reasons we believe that the charge of DWAI drugs is one of the worst DWI charges to defend against - bar none.

If you have questions about a DWAI drugs case or DWI in NY, call us: 607-229-5184

Or find us online! www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR

Copyright 2016. Educational Purposes Only.

*DISCLAIMER: If you or a loved one has been charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes, including the potential loss of your freedom.

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