Ithaca Corning DWI lawyer: How Thanksgiving Feast can cause higher blood-alcohol levels!

image courtesy cccacademy.com

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

Phone:  607-229-5184

Email:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

Ithaca Watkins Glen DWI lawyer: Defending a DWI charge for sleeping in your Car in New York

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:  

607-229-5184

By Attorney Mike Cyr

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

CYR & ASSOCIATES 2015

Ithaca Dix DWI Lawyer: What happens if you drive WITHOUT an IID after a DWI in NY?

What happens if you drive 

WITHOUT a Court-ordered

Ignition Interlock Device in NY?

Quick answer:  You are charged with a Class A misdemeanor (and probably a violation of Probation or a Conditional Discharge). 

The idea behind this post is an article that was recently published about how MANY, MANY Ignition Interlock orders across New York are being ignored.  The article lists that only 26% of people sentenced to an IID are actually installing them.  

Link to Article here. 

I agree with the article that the figure is misleading because many people (especially those convicted of Felony DWI) sign an agreement to NOT drive anything for a long period of time following a conviction.  Then, if they ever want to drive again, they will be required at that point to put the IID on their car.  

According to Vehicle and Traffic Law, section 1198 (9)(a) through (e),CIRCUMVENTING AN IGNITION INTERLOCK DEVICE is a Class A misdemeanor for a person convicted of DWI in New York to NOT have the court ordered Ignition Interlock Device on their car.  

A Class A misdemeanor carries the SAME PENALTIES as a first offense DWI (so it would be like starting a new case all over again right after resolving a DWI)!  

Penalties include:  -up to 1 year in jail /  up to 3 years of Probation / fines / fees /etc

MORE IMPORTANTLY, if you fail to comply with the Ignition Interlock requirements set forth by the Court, then you will ALSO be charged with violating your Probation or Conditional Discharge.  

If you are facing a Violation of a Conditional DIscharge or Probation then it is much harder to defend because the Prosecutor does NOT have to prove the charge beyond a reasonable doubt;  instead the District Attorney only must prove "more likely than not" that you violated.  This is a CIVIL STANDARD called a preponderance of the evidence. 

If you are convicted of a DWI, you are required to have an IID installed within 10 days of sentencing (and must contact the local STOP-DWI monitor within 3 days of installation).  In the meantime, a Defendant cannot drive anything after sentencing without an IID on the car--so it makes sense to either get it on the car BEFORE sentencing (in some counties you can do this) and in others you must wait until after sentencing (like in Tompkins).  

The Ignition Interlock requirement NEVER goes away, so it must be complied with at some point in time in order to make the New York DMV and local court satisfied. 

By Attorney Mike Cyr

607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

Copyright 2015

Ithaca DWI Attorney: SIX Phases of New York License AFTER a DWI Arrest

SIX PHASES OF NYS LICENSURE

AFTER A DWI (Breath or Blood) ARREST

(this is an excerpt from our ebook, "Everything You Need to Know About a NEW YORK DWI and YOUR LICENSE," by Attorneys Mike Cyr and Larry Newman)

In New York State, you will go through various phases of licensure after a DWI
case begins. If you took a police chemical test by giving them a sample of your
blood or breath there will be six distinct phases. These may be combined or
condensed depending on your particular case.

PHASE ONE, there is an administrative Court suspension of FULL privileges to
drive in NYS. Remember, NYS courts/judges only have power (jurisdiction) over
NYS privileges. So if you have an out-of-state license it should be good in the
other 49 states while things in NYS are pending.

This is called the "suspension pending prosecution." This occurs with a BAC of
.08 or higher. Your attorney can apply for a hardship privilege license at this
phase. This can allow partial driving privileges for work, school, and medical
care.

Hardship is case by case and is not a given. Proof will be required to meet the
legal standard of hardship for any privileges to be awarded by the judge.

PHASE TWO, you can apply at the local DMV for a PCCL (pre-conviction
conditional license) after 30 days from the administrative court suspension. You
may need a certified copy of your out-of-state license history/abstract to apply if
you are from out-of-state.

PHASE THREE, if your criminal case is resolved then your attorney can request
a stay (delay) of the license suspension. This is called a "twenty-day license"
because it is only for 20 days from the sentencing date.

PHASE FOUR, suspension or revocation of license privileges begins, then the
NYS DMV's DDP (drinking driver program), and the second type of conditional
license (the PRCL: Post Revocation Conditional License). This is usually
available at the local DMV (to sign up and receive) about 10 to 14 days after
sentencing.

PHASE FIVE, after completion of the seven week DDP, for first time offenders,
21 YO or older, and no other issues (talk with an attorney). Re-apply (pay more
$) and receive back FULL privileges. One caveat, this is a FULL
PROBATIONARY license for six months. One cell phone violation, seat belt
violation, anything beyond a parking ticket and you are SOL.

PHASE SIX, restoration for full license privileges will be dependent upon whether
your final plead to offense was a DWI or a DWAI. If it was a DWAI then payment
of a DMV license restoration fee will be the final step in this onerous process. If
your case involved the installation of a IID (ignition interlock device) on your car
then the final step in the process will hinge upon removal of the device from your
car.

*Please Remember, ONE SIZE DOES NOT FIT ALL.
So there you have it in all it's glory. Now if you refused a breath test, a different
course, if you are under 21, a different course, if you are from out-of-state, a
potentially different course. If you, if you, I think you get that it is NOT always one
size fits all, and this is the general course of events on NYS DWI DMV stuff. 

(if you found this information helpful, you can access the entire ebook on our website:  www.ithacadwi.com )

COPYRIGHT CYR & ASSOCIATES 2015. 

By Mike Cyr

607-229-5184

E:  mike.ithacadwi@gmail.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi OR @ithacadwi

*This post is not intended as legal advice.  If you are charged with a DWI (or any crime), we strongly urge you to consult with a local, licensed DWI defense attorney.

Ithaca DWI lawyer: Do you have a NJ license and got a DWI in New York?

image courtesy of infoplease.com  - New Jersey map

Do you have a New Jersey license and

got a DWI charge in New York?

(here's what happens)

(here is an excerpt from our ebook:  "Everything You Need to Know about a NEW YORK DWI and Your License"  by Attorneys Mike Cyr and Larry Newman) 

It is legal to be given administrative penalties in two states. It does not violate

double jeopardy, because you are NOT being tried for the same crime twice.

Remember: a license is a privilege and not a constitutional right.

In almost every New York DWI case where the driver has an out-of-state license,

there will be consequences and hoops to jump through to clear license issues in

both jurisdictions. Our job is to see if we can get some reciprocity, eliminate

redundancy, and ensure that punishments to licensure are minimized. Even

though these people do not have a NYS driver's license, they hold (or held) New

York privileges while driving in NY, and will now face NY DMV sanctions.

It has become usual and customary to be punished administratively in two states.

New Jersey License Holders with a New York DWI:

New York and New Jersey are kindred states in many respects. Those with a

New Jersey driver's license facing a NYS DWI will have to deal with both the NJ

DMV and the NYS DMV.

The reciprocity of suspensions and of programs between the states is important

to know about.

New Jersey DMV: Three Main Things (surcharge, suspension, and

program)

1. NJ will assess a 3 year, $1000/year insurance surcharge on your NYS

DWI, (and NYS DMV will assess an additional $250/yr for three years;

for a grand total of: $3,750 over three years in DMV surcharges alone!)

From NJ website brochure on surcharge:

All Alcohol and drug-related offenses

These surcharges are billed each year for three years:

• In-state operating under the influence of liquor or drugs (DUI)

• Out-of-state DUI (i.e. NYS DWI)

• Refusal to submit to chemical test (i.e. NYS refusal)

The surcharge for operating under the influence or refusal, whether it occurs in 

New Jersey or another state, is $1,000 a year for three years for both a first and

a second violation.

2. NJ will also suspend driving privileges depending upon the driver's BAC

level “at time of arrest.”

BAC (blood alcohol concentration) less than 0.10%, = 90 day NJ suspension

BAC (blood alcohol concentration) more than 0.10%, =7 month (210 day) NJ

suspension

NOTE: NJ offers NO conditional (occupational/work) license privileges.

It is a HARD (FULL) loss of license privileges with NO exceptions. You cannot

drive at all during the suspension (in NJ or any state).

See the New Jersey Department of Motor Vehicles Website to confirm all of this.

3. You will need to do the NJ Drinking Driver Program or the NYS DMV DDP

-Basic NJ first time program is two (6 hour days) in an Intoxicated Driver

Resource Center = 12 hours total

-Compare to NYS DDP is 7 weeks (1.5 hours/night) = 15 hours total

(Most NYS Courts, the DMV, and DDP mandates an alcohol/drug abuse

evaluation/assessment)

From their website:

NJ Intoxicated driver program

Any person convicted of an alcohol related traffic offense must participate in a

program at an Intoxicated Driving Resource Center (IDRC):

New Jersey has an IDRC in each county for first and third-time offenders and

three regional centers for second-time offenders.

During the program, offenders attend mandatory Alcohol and Highway Safety

Education courses. The IDRC also evaluates each offender for an alcohol or

drug problem and determines the need for treatment. If treatment is needed, the

center refers the offender to an appropriate provider for a 16-week minimum

treatment program.

Any DWI offender may supplement the treatment with attendance at a self-help

group. IDRC monitors compliance and reports noncompliance to the courts and

MVC. Satisfactory participation in IDRC is a step toward restoring your license.

Failure to comply will result in further license suspension and possible jail time. 

COPYRIGHT CYR & ASSOCIATES 2015 

"Everything You Need to Know About a NEW YORK DWI and YOUR LICENSE!" by Attorneys Mike Cyr and Larry Newman

QUESTIONS?  Call us:  607-229-5184

Send me an email:  mike.ithacadwi@gmail.com

Website:   www.ithacadwi.com

FB:  www.facebook.com/ithacadwi

www.twitter.com/ithacadwi  or @ithacadwi

BLOG:  www.ithacadwi2.blogspot.com

*This post is not intended as legal advice.  If you are charged with a DWI or any crime, we strongly urge you to consult with a local, licensed DWI defense attorney immediately. 

BY MIKE CYR 

Copyright 2015

Ithaca DWI Lawyer: What's the POINT of a Suppression hearing???

What is the POINT of a 

SUPPRESSION HEARING

in New York?

In a New York criminal case ---whether it is a DWI or not, a SUPPRESSION HEARING is the defense attorney's first real opportunity to challenge the government's evidence against you. 

In practical terms, IT IS A SNEAK PREVIEW OF A TRIAL.

Every Suppression hearing is different... you have to have a good REASON to make a motion for a suppression hearing.  

Getting a Suppression hearing granted by a Judge is NOT GUARANTEED.  We, as defense lawyers, have to put very specific reasons backed up by facts for a Judge to allow us to have a hearing.  Some judges won't let you do them --while other judges think of suppression hearings as almost automatic in certain types of cases.  

Especially if  you have a DWI case in the TOWN JUSTICE Courts of upstate New York..you better make sure that your motion is absolutely beautiful, thorough, and complete.  If not, there's a good chance the Town Justice won't grant you a hearing. 

WHAT KINDS OF EVIDENCE CAN A DEFENSE LAWYER TRY TO SUPPRESS? 

Well, like I said, for each case it is different---let's discuss a DWI Case specifically. 

1.  We challenge the Probable Cause of the Traffic Stop

2.  We challenge the Probable Cause of the Arrest

3.  We challenge whether any statements made should be suppressed 

THOSE ARE THE THREE MOST COMMON THINGS TO CHALLENGE IN A DWI CASE.  However, there are separate hearings that can be granted (WITH GOOD REASON) to challenge other issues in a DWI... 

- We might be able to challenge whether the REFUSAL to take the Breath Test was valid

-We might be able to challenge if your MIRANDA RIGHTS were violated

If the Judge believes any of our arguments as to why some of the government's evidence should be suppressed, he could exclude it partially or completely from a future trial --thereby weakening or even destroying the case.  (this is a rare occurrence). 

**NOTE:  It is very rare indeed for a Judge to entirely throw out important evidence in any case --especially in a criminal case.  There would have to be an airtight reason for a trial Judge to exclude any evidence in a DWI case.  *** 

THERE ARE OTHER BENEFITS TO A SUPPRESSION HEARING...

Sometimes, we like to push cases to a suppression hearing just so we can get the Prosecutor and the Police Officers in the Court room together.   

Let's say, for example, that negotiations over a Plea Offer have been stalled.  The Prosecutor won't budge on a plea offer that we think isn't fair for our client.  Then, if we felt it was in the best interest of the client, we would seek a suppression hearing to cross-examine the Officer.  

If he answers things poorly --he is doing so under oath.   The prosecutor may think twice about his terrible offer and make it better if he sees that his case is harder to prove because he has a bad witness. 

Also, any time we cross-examine an officer on the stand, he is testifying under oath.  That means we are DEVELOPING GOOD TESTIMONY to use again if we ever need to go to a trial down the road.  

We get a copy of the Suppression Hearing transcript so that we can use it at a trial --and the police officer will be forced to testify the same way as he did at the suppression hearing at the trial.  If says something new or different at the trial, we can use the suppression hearing transcript to show the JURY that he is LYING!  Or he is mistaken!  Either way it is good our client.  

Basically, a suppression hearing can give both the Prosecutor and defense an idea of how a trial might go...for better or for worse.  

They are usually reserved for cases where the plea offer isn't what we would like it to be --in an effort to improve it.  That's typically the primary goal of a suppression hearing in practical terms.  

By Attorney Mike Cyr

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

www.ithacadwi2.blogspot.com

Ithaca Catherine Town Court DWI Lawyer: Are you REQUIRED TO DRIVE while the IID is on your car?

ARE YOU REQUIRED to Drive While 

the Ignition Interlock Device is on

your car? 

Short answer:  NO.  

The statute itself (VTL 1198(2)(a)) nor any case law indicate that it is REQUIRED that you start or drive your car while the Ignition Interlock Device is on it.  In other words, you are required to have the device on your car---but there is no duty to DRIVE. 

However, you ARE REQUIRED to install the device within 10 days of sentencing and notify the County STOP DWI Monitor of the installation within 3 business days.  You are also required to upload the information from the device to your local County Stop DWI monitor (in Tompkins County it is Michelle Barber) every month.  

In theory, you could leave the car sitting in your driveway for 6 months and only upload the information to the STOP DWI monitor on a monthly basis.  

Unfortunately, not every Judge KNOWS THIS.  We have some judges around Tompkins County that have the opinion that the IID program is also a "monitoring device" to prove that you have learned your lesson and are NOT imbibing with any alcohol.  

Most first offense DWI conditional discharges --DO NOT --have the condition that prevents someone from drinking during the 1 year term of the sentence.  To make things clear, some Judges believe that despite your ability to legally consume alcohol you should probably abstain for a period of time, and would not look kindly on you not driving your car with the IID on it.  

It does not make sense, but it is how things are for some parts of Tompkins County. 

BOTTOM LINE

Despite any judicial misunderstandings of the law, there IS NO LEGAL REQUIREMENT that you must drive your car while the Ignition Interlock Device is installed on it.  As long as you comply with the other rules surrounding an IID, then you are doing nothing wrong.

BY:  Attorney Mike Cyr 

P:  607-229-5184
E:  mike.ithacadwi@gmail.com
www.ithacadwi.com
www.facebook.com/ithacadwi

Twitter:   @ithacadwi