Ithaca DWI Lawyer explains New York's Drug or Alcohol Overdose Good Samaritan Law

Cayuga Medical Center, Copyright Cyr 2015

PROTECTING YOU OR YOUR FRIENDS WHO OVERDOSE ON DRUGS OR ALCOHOL

Fortunately, there are protections built into New York’s laws that protect people who seek medical care for alcohol and drug abuse from some potential criminal charges.  The goal is to make sure all students know that their personal safety comes first and that they will NOT get in as much trouble as they could for seeking medical attention for themselves or their friends.  The criminal charge exposure is significantly reduced.
  

Cayuga Medical Center Emergency Department Entrance, Copyright Cyr 2015

NY Penal Law, s. 220.78, sums up the above paragraph.

 1.  A  person who, in good faith, seeks health care for someone who is
experiencing a drug  or  alcohol  overdose  or  other  life  threatening
medical  emergency  shall  not be charged or prosecuted for a controlled
substance offense under  article  two  hundred  twenty  or  a  marihuana
offense  under  article two hundred twenty-one of this title, other than
an offense involving sale for consideration or other benefit or gain, or
charged or prosecuted for possession of alcohol by a  person  under  age
twenty-one  years  under  section sixty-five-c of the alcoholic beverage
control law, or for  possession  of  drug  paraphernalia  under  article
thirty-nine  of the general business law, with respect to any controlled
substance, marihuana, alcohol or paraphernalia that was  obtained  as  a
result of such seeking or receiving of health care.

The primary exception is for people who are selling drugs.   They may still be prosecuted under drug sale crimes, but usually not possession based crimes.  There may still be ramifications for alcohol possession if you are under 21, but the exposure for criminal charges is significantly lessened.

All in all, this law is designed to protect both the user experiencing the overdose and the “Good Samaritan” who sought medical attention in times of drug or alcohol emergency.  Tell your friends and parents about this law.  It could save your life someday.  

This is an important law to know about if you are high school or college student in New York --as it is students who typically misjudge the powerful effect of alcohol or drugs in Ithaca.  But this law applies to us all.  Not just students. 

BY:  Attorney Mike Cyr 

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

Twitter:   @ithacadwi

Ithaca Cortland criminal lawyer explains WHY Probation is Worse than Jail in New York!

VIDEO:  Why PROBATION is Worse 

than Jail in New York

Highlights: 

In majority of cases, Probation is actually worse than jail.  

WHY? 

1.  No privacy.  

-For 3 years, the probation dept can search your house, car, or get a sample of your body fluids or hair for drug testing.

2.  Can't travel or relocate without PERMISSION. 

3.  Can't have a sip of Alcohol --or can be locked up! 

BY:  Attorney Mike Cyr of Ithaca DWI: Defense Attorneys

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Ithaca DWI Lawyer explains: NEW CASE LAW ---DWI "Probable Cause" Update! Bad for Defendants! People v. Guthrie (Apr 7, 2015)

(image courtesy of www.nydailynews.com)

A POLICE OFFICER'S "REASONABLE MISTAKE OF LAW" STILL IS PROBABLE CAUSE TO STOP A CAR

This case was decided 2 days ago ---APRIL 7, 2015.  People v. Guthrie, 2015 NY Slip Op 02867 (for you lawyers out there on the interwebs).

FULL CASE CAN BE READ HERE

The State of New York's HIGHEST COURT (the Court of Appeals) has shaken every NY citizen's 4th amendment rights that a police officer must have "probable cause" to stop a car.  Now, even if the police officer is MISTAKEN ABOUT A LAW BEING BROKEN, the officer will still have "probable cause" to stop the car. 

I have already blogged about what it takes to stop a car in NY.  See POST HERE 

WHAT DOES THIS MEAN? 

Well, it means, now more than ever, it will be much less likely to have evidence suppressed in a DWI case based on a police officer's lack of probable cause to stop your car.  

Even before this case, the police are given probable cause almost effortlessly because they can use ANY TRAFFIC INFRACTION THAT THEY OBSERVE (or lie about) to create the necessary probable cause to stop any vehicle in NY.  It wasn't hard before this week.

In the case decided 2 days ago, Guthrie, a woman was stopped by the police leaving a supermarket parking lot onto a public road.  At the edge of the parking lot was a stop sign.  The woman did not stop.  Therefore, the police officer stopped the car for running the stop sign --and discovered evidence of drunk driving.  

However, the stop sign at the edge of the parking lot was NOT OFFICIALLY REGISTERED WITH THE CITY and was not a valid stop sign under the Vehicle and Traffic Law.  So two courts suppressed the stop and all evidence that came afterwards.  Until the Court of Appeals reversed the decision.  Now, the stop is deemed valid (with probable cause), so the DWI charges and evidence found are valid.  

Basically, in a nutshell, the Court of Appeals decided that the Officer reasonably relied on the Stop sign being a valid, real Stop sign --and upheld the probable cause. 

The Court did rule that the ticket for failure to stop could not be prosecuted--because the stop sign was not valid.

WHAT'S THE BIG DEAL?

Unfortunately, it doesn't end with a single stop sign.  The Court of Appeals decision has far reaching implications.  Now, as long as the People can prove that the officer "made an objectively reasonable mistake of law" the suspect probable cause can be upheld... 

Under the Guthrie ruling of this week, if a police officer stops your car even when there was no law to do so--and finds evidence of OTHER CRIME--and the Court finds the officer acted "objectively reasonable" under the circumstances in stopping your car---then the stop will be justified as having probable cause--even if the underlying traffic ticket cannot be prosecuted.

.  

THE POWERFUL DISSENT

Judge Rivera dissented in the opinion of the Court....here are the highlights: 

-mistakes of law cannot provide the requisite probable cause for reasonable search and seizure

-this decision DISINCENTIVIZES the police to actually know the law they are meant to enforce

-evidence that is obtained without probable cause SHOULD BE SUPPRESSED

-courts will have a hard time determining what is "objectively reasonable"

-Up to now, NY law has been clear that mistakes of fact are OK, but mistakes of law are never sufficient to establish probable cause

-society relies on a police officer to enforce what the law says, not an officer's mistaken belief

-a bright line rule is better (i.e. mistakes of law are bad) and provides incentive for officers to know the law they're charged to enforce

-this decision "places in question the integrity of our criminal justice sytem" 

--SUMMARY THOUGHTS--

The police already had tons of authority to pull people over in NY.  Now, it appears there is very little indeed that they cannot do when you're in a car.  The law in NY is now shaken as to what evidence can be suppressed in an improper traffic stop.  

This means that more people will be punished when they break the law--even if the police don't even KNOW THE LAW.  That doesn't put any more faith in our already flawed justice system...

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Ithaca DWI lawyer explains: What is a CONDITIONAL DISCHARGE?

Copyright Cyr 2015

WHAT IS A "CONDITIONAL DISCHARGE"?

Good question.  A "conditional discharge" or a "CD" as it is known by NY criminal lawyers, is the LOWEST LEVEL OF SENTENCING on a criminal charge in New York.  

Let me back up.  

There are three levels of punishment on any case (excluding dismissals, fines, surcharges, and civil stuff)... 

1.  Jail (highest level)

2.  Probation (middle level --although in some ways probation can be worse than county jail)

3.  Conditional Discharge a.k.a. CD   (lowest level)

So, what is it?  

Here's the definition from the NY PENAL LAW, section 65.05: 

"the court may impose a sentence of conditional discharge for an offense if the court, having regard to the nature and circumstances of the offense and to the history, character, and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate."

I hate regurgitating the law, so here is my breakdown of a CD: 

It is a ONE YEAR "stay out of trouble"  and DO NOT BE ARRESTED period.  Occasionally, there may be other conditions listed by the court, like, abstain from alcohol. 

DURATION:

For a misdemeanor or violation-- it is 1 year

For a felony --it is 3 years

If you are arrested, or violate the terms of the CD, then the court can violate you and re-sentence you up to the maximum sentence you were facing (for a Class A misdemeanor --like a DWI charge---that means 1 year in jail). 

--SUMMARY THOUGHTS---

A CD is the best possible sentence for somebody to get in a NY criminal case.  The only thing better is a dismissal or "ACD" [which stands for "adjournment in contemplation of a dismissal"].  If you are pleading guilty to a misdemeanor, then a CD is the best option you will get.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

EASTER EGGS and DWI in ITHACA

EASTER EGGS AND DWI

How do these things go together?

Well, I'm gonna make a leap here... It's Easter Sunday, and you eat eggs on Easter...who else eats a lot of eggs?   

PEOPLE ON LOW CARB DIETS .... like Atkins and South Beach.  

So who cares?

If you are on a low carb diet, then your body is hopefully in a fat burning state called KETOSIS.

What happens to a DWI BREATH TEST if somebody is in the state of KETOSIS?

The test gets screwed up!  In Ithaca, the police use a breath test machine that relies on "Light absorption spectrometry."   This system's results can be skewed by KETONES in a person's breath --that the machine mistakes for ETHANOL molecules.   If the machine mistakes the KETONES for alcohol molecules, then the test result will be higher than it should be.

--Summary Thoughts---

If you're on a low carb diet, and are in Ketosis (or suspect that you could be), be sure to tell the police officer if they want to run a breath test on you, and BE SURE TO TELL YOUR LAWYER.   This information could really help your case.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Ithaca DWI lawyer explains difference between AGGRAVATED DWI and DWI charge

Copyright Cyr 2015

What's the DIFF between AGGRAVATED DWI and regular DWI? 

(If you're wondering about the purple..."one must have hint of color" [name that movie])

So what's the deal?  There are a couple differences between these two charges.  For you legal scholars out there, we are comparing/contrasting Vehicle and Traffic Laws, s. 1192.2 / 1192.3 (DWI over 0.08% BAC* and DWI "common law") vs. 1192.2a (Aggravated DWI)

Let's start with the regular misdemeanor charges.   Both DWI over 0.08% BAC (1192.2) and common law DWI (1192.3) have the exact same penalties.  They are:

-up to 1 year in jail

-up to 3 years probation

-6 month license revocation

-1 year Ignition Interlock Device (can apply to remove after 6 months) 

[installed within 10 days of sentencing]

-3 year DMV Civil Driver Assessment fee of $250 per year ($750 total)

-Must participate in the Drinking Driver Program (7 week course)

-Must attend a Victim Impact Panel (1 night class)

-min $500-$1000 fine

-mandatory $395 (city court) or $400 (town court) court surcharge

-must be fingerprinted

That's a lot of stuff.  The difference between 1192.2 and 1192.3 is really what the prosecutor has to PROVE.  

For DWI over 0.08%, the prosecutor has to prove that your BAC level was actually OVER 0.08% --which means they need a chemical test to prove it.  If you refused the test, they will be unlikely to win on this charge. 

However, that's why "common law" DWI exists.  The prosecutor can prove that you were intoxicated or impaired by using evidence of your lack of physical and mental abilities to operate a vehicle.  They don't need the BAC test number.  They can use the police officer's observations and field sobriety tests, etc, to prove the case.  

  

AGGRAVATED DWI is different in two ways...

1)  The BAC level has to be 0.18% or higher.   [which means, if you refused the chemical test, they can't charge you with this crime]

2) The penalties are a tad harsher. 

-the penalties are the same as described above except: 

-the license revocation period is 1 year (increased from 6 months)

-min $1000-$2500 fine   (increased from $500-$1000)

--SUMMARY THOUGHTS--

The primary difference is the BAC level.  I'll break it down:  

-If you are at or over 0.18% BAC, then you will be charged with Aggravated DWI.   

-If you are between 0.09-0.17% BAC, you will be charged with BOTH DWI over 0.08 (1192.2) and common law DWI (1192.3).  

-And...if you refused the chemical test, you will only be charged with common law DWI [but will face additional civil penalties, like automatic loss of license for 1 year, civil fines, and a jury charge indicating your guilt in the criminal case]. 

*BAC = Blood Alcohol Concentration

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Ithaca DWI Lawyer: What the Prosecutor DOESN'T HAVE TO GIVE YOU...until the very last minute!

(image courtesy floridainnocence.org)

THE SCARY TRUTH --What you're NOT entitled to from the government...until AFTER THE JURY HAS BEEN SWORN IN

Hopefully, I've gotten your attention.   When I began practicing in Ithaca, New York after coming here from Massachusetts, I experienced a rude awakening when I began defending criminal cases.  There's a lot of things that the prosecutor does NOT have to give the defense attorney (or the Defendant) while they're prosecuting you...

The process of getting information from the prosecutor is called "discovery."  This is an on-going process during a criminal case, but it requires that the defense attorney give a request for information called a "DEMAND TO PRODUCE" within 45 days of the arraignment.  However, the prosecutor is only obligated to give over information that falls under a specific set of guidelines:  Criminal Procedure Law, Article 240. 

This does NOT include a police report (or the officer's notes/observations)!

This begs the question:  How can a defense lawyer cross-examine a police officer at trial (or a pre-trial hearing) if they HAVE NOT seen the police report??? 

Well, there is a case (and line of cases that follow it) that governs this process. 

In People v. Rosario, 9 NY.2d 286 (1961), the Court of Appeals made a rule that forces prosecutors to hand over material to cross-examine government witnesses... 

It was later put into CPL s. 240:  

"After the jury has been sworn and before the prosecutor's opening address...the prosecutor shall, subject to a protective order, make available to the defendant: 

(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to CPL s.190.32, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony.  

*THAT'S VERY LATE IN THE PROCESS TO DISCOVER ANYTHING TO AVOID A TRIAL

**And while the defense attorney can request time to review the newly given material, it is so late that it could change the entire defense theory of the case.  That's not good.

WHAT DOES THIS MEAN?

It means that in NY, the defendant is at a very powerful disadvantage from the moment they are charged with a crime.  The prosecutor has the legal right to withhold valuable, relevant information about the case they're preparing against you up until the jury has been sworn in... 

OK...HOW DO WE FIGHT THIS INJUSTICE?There are a couple ways:  

1)  Make sure your discovery demand at the start of the case is very specific. 

2) Make motions for Brady material (exculpatory evidence) that are specific

3) Sometimes you can negotiate more discovery from the prosecutor (need leverage)

4) Request pre-trial Rosario material for a suppression hearing (this is a great way to fix problem) 

--SUMMARY THOUGHTS---

In my opinion, the New York justice system is inherently unfair.  The government should be obligated to give over everything they have against a defendant at the BEGINNING of a criminal case (like Massachusetts and many other states in the USA).  However, life isn't fair, so we must do our best to continue fighting the good fight to make sure everybody gets the closest thing to a fair shake as they can...

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Ithaca DWI Lawyer explains legal definition of "Intoxication"

(SNL's "Drunk Uncle" image courtesy of screen.yahoo.com)

WHAT'S THE LEGAL DEFINITION OF "INTOXICATED" ?

Well, it was determined by the New York Court of Appeal (the state's highest court) in 1979 in the case of People v. Cruz.... 

Where the court defined the following:  

"Intoxication is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver."  48 N.Y.2d 419, 429 (1979).  

The CRUZ court also went on to define "Impaired Driving" as: 

"...the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." Id. at 428. 

These legal definitions are used for two different charges... Driving While Intoxicated in NY is prohibited in Vehicle and Traffic Laws, sections 1192.2, 1192.3 and Driving While Ability Impaired is prohibited by Vehicle and Traffic Law, section 1192.1.  

In BOTH DEFINITIONS, you will find that the court talks about "physical and mental" abilities of the driver.   That's why it is so important when defending a case to bring out the GOOD THINGS that the driver did physically and mentally.  Was there good driving? Could the driver speak and follow directions?   There's a list of things we can use in each case to help show that you WERE NOT impaired physically or mentally (or at least not as bad as the prosecutor says you were).

Question:  SO WHY IS THE DEFINITION IMPORTANT?

Answer:  BECAUSE OF THE JURY INSTRUCTIONS!

The New York model criminal jury instructions are different for each of these crimes...and if you are charged with DWI (the misdemeanor), the "lesser included offense" of Driving While Ability Impaired (1192.1) can also be included in the instructions to the jury (which is a choice of the defendant).  

Both sets of jury instructions allow the jury to consider a WHOLE BUNCH of stuff to determine if somebody was driving while intoxicated or ability impaired.  They can consider: 

-the BAC number from the chemical or blood test (or urine or saliva) [if the number is below 0.08 there are special instructions]

-observations of the police officer

-any odor of alcohol

-evidence of slurred speech

-evidence of pass or fail of field sobriety tests

-evidence of bad driving

-evidence of any accident or personal injury

ETC, ETC

Here's the link to DWI "Common Law" [no BAC test or below 0.08%](1192.3) instructions: 

 DWI common law jury instructions

Here's the link to DWI over 0.08% (1192.2) instructions:

DWI over 0.08% instructions

Here's the link to DWAI (1192.1) instructions: 

Driving While Ability Impaired instructions

---SUMMARY THOUGHTS---

There's a lot involved in every DWI case (as you can read in the jury instructions).  That's why I always recommend somebody charged with DWI get a lawyer as quick as they can after being charged (whether it is me or somebody else. lol)  Hope this post was helpful.

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Ithaca DWI: Must Investigate Scene of Arrest!

GOING TO THE SCENE OF THE DWI ARREST

Ithaca College Circle Apartment Complex, Copyright Cyr 2015

Why is it sooooooo important to actually go to the scene of the DWI arrest?  

Because any FIELD SOBRIETY TESTS ("FSTs") done at the scene can be seriously affected by the environment... 

1.  ITHACA IS CONSTANTLY CHANGING SEASONS.  (except in Winter, lol)

What I mean is, you might get arrested in February for DWI, and you may not have a trial or suppression hearing until June or later.... so if you want to show the judge or jury the conditions of where you were arrested, it is important to take pictures very soon after the arrest.  

2.  THE CONDITION OF THE GROUND CAN SERIOUSLY AFFECT A FIELD SOBRIETY TEST.

Was the ground level?   Was there an actual LINE for you to walk on?  Was it concrete?  Was it gravel?  Are there cracks in the pavement?  Was it on the side of a hill?  Was the area well lit?  Was it dark except for the lights of the police car?   

All of those above issues can negatively affect the outcome of a FST.  With respect to lighting, if there are flashing cruiser lights or it is very dark except for the light of the cruiser, it can skew the results of the Horizontal Gaze Nystagmus Test (the most reliable and "scientific" of the 3 standardized FSTs).  

If the ground is uneven or gravel, it can make it much more difficult to complete the Walk and Turn or One-Legged Stand FSTs.   

*Other than those 3 tests, no other "so-called FST" has been shown to prove any level of impairment or intoxication by the scientific community (the Romberg Test, the Alphabet Test, Counting test, etc ---are all unproven and not approved by the National Highway Traffic and Safety Administration [NHTSA]).

--SUMMARY THOUGHTS--

It is important for both you and your attorney to go to where you were arrested and check out the scene together.  That will give your lawyer a better understanding of what happened and give possible new ammunition to fight the case against you.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi