Ithaca DWAI Drug Lawyer: the DUTY of the Police to Preserve BLOOD EVIDENCE.

DUTY OF THE POLICE TO 

PRESERVE THE BLOOD SAMPLE

TAKEN FROM YOU

IN A DWI or DWAI Drugs Case...

If you are arrested for either Driving While Intoxicated or Driving While Ability Impaired by Drugs and the police taken a sample of your blood.... 

...Then they MUST PRESERVE THE SAMPLE for independent testing by the Defense. 

Criminal Procedure Law s. 240.20(1)(f) requires that if a Defendant makes a demand for discovery (evidence against him/her) then the People MUST "make available for inspection and testing, ANY PROPERTY (your blood = your property) obtained from you.. \

So, if you get your blood drawn ---then the Police have a duty to PRESERVE that sample and make it available for you (and your lawyer) for independent testing & analysis.  

This is a crucial step in ANY blood case.  

Case law goes on to say that:  "since testimony of blood alcohol content is invariably dispositive in drunk driving cases, independent testing by a defense expert is imperative if the defense is to have a fair opportunity to confront the toxicologist and her findings..." 

"It is FUNDAMENTALLY UNFAIR to deny someone reasonable access to fluid specimens taken from one's own body..."  

HOWEVER BE WARNED!!!!  It's not that simple.  

If the police INADVERTENTLY fail to preserve the blood sample, the evidence can still be used against you at trial.  If this happens, the Court is just supposed to "SANCTION THE PEOPLE"  (What the heck does that even mean?).

What does "inadvertent" mean?    = Oops!  We lost it....our bad. 

For practical purposes, it means that you're in bad shape case-wise because the prosecutor lost your blood sample, he can still use it against you, and the DA's office gets a slap on the wrist in court.  

OK --that is clearly a problem---how do you avoid that outcome??? 

By your lawyer being meticulous and persistent.  In blood cases, we make at least 5 requests for the blood sample.  In every case.  We make sure that the DA knows we want it, the police know we want it, and the Court knows we want it ---AS SOON AS HUMANLY POSSIBLE.  We tell them at the FIRST COURT APPEARANCE.  We make a formal request on the record in Court.  We also send emails to the DA's office.  All to create a paper and oral record of our numerous requests --so they can't drop the ball.  Or if they do--it does NOT look like an accident. 

By Attorney Mike Cyr

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

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Breaking down the Timeline of a Criminal Case in NY (misdemeanor)

Breaking Down the Timeline of a Criminal Case

(MISDEMEANOR)

Hello folks!  Today I'll break down a typical timeline for a criminal case for a MISDEMEANOR in New York.   

What's a MISDEMEANOR?   Well, there are three different types of crime in New York:  felonies (the worst kind of crime, i.e. murder), misdemeanors (middle of the road crime, i.e. petty theft), and violations (traffic tickets and public order offenses, i.e. disorderly conduct). 

What's the difference?   In a nutshell, where you go to Jail and whether you get a permanent criminal record.  

For felonies you go to State Prison.  (yes, you get criminal record)

For misdemeanors you to to County Jail.  (yes, you get criminal record)

For violations you can go to County Jail. (but will not have a criminal conviction on your record)

TIMELINE: 

1.  Arrest / Charges filed against you

2.  Initial appearance in Court  / Arraignment: 

-this is where your attorney pleads Not Guilty on your behalf and the clock starts ticking on the prosecutor to be "ready for trial" bring the case against you.  [CPL 30.30]

3.  Discovery Phase

-this is where your lawyer will make a DEMAND TO PRODUCE and/or REQUEST FOR BILL OF PARTICULARS to the prosecutor to get more information about the case against you.  There are many different kinds of discovery requests that can be made by your attorney, but unfortunately in New York, there are significant restrictions on what the prosecutor is required to give the defense.  That's a subject for several other blog posts.  

-In a perfect world, you are dealing with an ethical prosecutor who turns over all the required (and not required) discovery to your lawyer so that additional motions and potential sanctions against the prosecutor will not have to be filed to protect you from injustice.

4.  Negotiation with Prosecutor

-this is the most important part of any case, this is where I can get a sense of how the prosecutor views you (as a danger to society etc) and views your case.  There is quite a bit of gamesmanship and nuance that goes into these conversations and if your lawyer knows the prosecutor well --this can help you tremendously.  

-In the negotiation, your lawyer is hoping for a reasonable alternative to bringing your case in front of a jury or judge.  In other words, we are trying to get the best possible GUARANTEE from the prosecutor for our client.  It is always safer to go with a sure thing than risking a jury convicting you of a more serious crime.  [see my previous post on plea negotiations]  It is an important cost vs. benefit analysis that happens in every case.

5.  Pre-Trial Conference

-this is an opportunity for the client, defense counsel, prosecutor and judge to all be in the same room and give a sense of where the case is going to the court.  There are many different ways to "skin a cat" and there are many uses for pre-trial conferences.  Sometimes a case is headed toward a suppression hearing or trial, or a client needs more time to complete community service, or a client needs to attend more drug or alcohol counseling, or more discovery needs to be done, etc, etc, etc.  The Pre-Trial Conference is simply a check-in with the Judge to give him or her a heads up about what's going on.  It is also a good opportunity to wrap up a case if a plea deal has been struck. 

6.  Motions / Suppression hearing

-this is the point in the case where trial starts to become a real possibility.  The motions deadline is 45 days from arraignment (although this is often extended for any number of reasons).  Motions and suppression hearing are an opportunity to conduct a mini-trial and cross-examine the prosecutor's main witnesses (usually police officers).  If you have solid defense points (and do a good job crossing the officer), pushing a case to a suppression hearing can (but not always) result in the prosecutor making a better plea offer than before.  However, on the flip side of the coin, if things do not go well, you have a better understanding of how you would fare in front of a judge or jury --and more information is always good.  

-every case is different and there are hundreds of reasons to either have or NOT have a suppression hearing or even draft pre-trial motions.

7.  Motions in Limine (pronounced "Lim-in-nay")

-these are trial motions made to the judge trying to exclude evidence and are typically made right before a trial begins

8.  Voir Dire (aka choosing a jury)

-this is the process of selecting a jury.  It is a complicated and artful process that is critical in deciding a case in your favor.

9.  TRIAL  (here's a brief outline of a trial)

a.  Opening Statement (defense can wait until start of own case or do one now)

b.  Prosecutor's Case (calls witnesses/ defense cross-examines)

c.   Defense Case (defense can make opening statement or start calling it's own witnesses, or it doesn't have to call any witnesses)

d.  Closing statements 

e.  Verdict 

10.  Sentencing

-this happens either after a plea deal has been consummated or if convicted of a crime by a judge or jury.   In New York, there are very specific sentencing guidelines based on what you are convicted of... the judge has some discretion on fines and jail time etc, but they have limitations on minimum sentences/fines etc.   It's complicated.  That is why it is absolutely critical that you KNOW the possible sentences before a trial is even decided.

-if required (or requested), the Court can order the Probation Dept. to complete a "Pre-Sentence Investigation."  This is an interview with probation where they give a sentencing recommendation to the court after researching the case.  There are pro's and con's to this process.  It typically adds 2 or 3 months to a case in Tompkins County.

-Ultimately, the judge imposes a sentence (and it is up to your attorney to make sure that it is a legal sentence).  

--SUMMARY--

I hope this outline can help take away some of the mystery of the criminal process and some fear.  It is important to understand what you're facing.  Always be sure to have a competent attorney when charged with any crime.

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

Behind the Curtain: Negotiating a Plea Offer

Courtesy dreamsline.com

NEGOTIATING PLEA DEALS

One of the key components in representing a client who is charged with a crime is the PLEA NEGOTIATION. 

In my experience, 98% of all cases are resolved by plea agreements.  There are a variety of skills needed to maximize the offer for the client. 

In every case, it is important to do the following things before any conversations begin with the prosecutor...

1) Analyze the strengths and weaknesses of your case.  

This may sound obvious, but it is the crucial first step in deciding how hard to push a negotiation.   You must take the case apart piece by piece to see where you may have solid defenses.  

In a DWI case, here's a few brief examples: 

-Was there probable cause to stop the car?  [bad driving, equipment malfunction, etc]
-Was there reasonable suspicion to ask my client to perform field sobriety tests?  
-Was there probable cause to search the vehicle?
-Were the field sobriety tests administered correctly?  
-Were the FST's given under the NHTSA guidelines? 
-What was my client's measured BAC level? 
-Was chemical test calibrated?  When?  
-Was client given refusal warnings?
-What evidence of impairment is there?   Could my client operate a vehicle?  
-What evidence of operation is there?  Can they prove my client actually operated a vehicle?
-Was there an accident involving property damage or personal injury?

etc, etc, etc

Each case has it's own set of unique facts and circumstances so it is important to break it down to see where your best arguments may be.  Legal research is necessary to see what case law may strengthen your case (or hurts it).

2) What is most important to the client? 

Once you are armed with the information about how good/bad your case is --you need to talk to the client to see what they're most concerned about.

-Do they want to avoid jail at all costs?
-Do they need to retain their driving privileges?
-Do they want to avoid a criminal record?
-Do they want to avoid probation but pay a stiffer fine?

Everybody values these things in a different way so it is important to know what your client thinks "is a good deal."   I also try to explain possible vs. probable outcomes at the outset of the case.  It is critical that both attorney and client are on the same page.

Next step:  Discuss the case with the Prosecutor.  

This is where negotiating is an art form.  I prefer to conduct these negotiations face to face if it's possible.  

In an adversarial justice system like ours --it is important to "know thy enemy."  If you deal regularly with certain prosecutors then you have an idea of what they're likely or not likely to go along with before you walk into the room.  This can be very helpful.

Often the first offer given by the prosecutor is less than ideal.  These offers are usually mailed to the client before the arraignment happens or the client retains an attorney.  I consider them to be a starting point ...but very rarely are they the final offer.  

During the plea negotiation, it is my job to poke holes in the prosecutor's case and show them what arguments I would make given the facts.  If there are significant defenses, I can push hard until the plea offer is something reasonable.  Sometimes pushing a case involves going to a suppression hearing or pre-trial hearings until the prosecutor decides it would not be worth it to try the case to verdict.  My own viewpoint is this:  if you push a case as if you're going to trial -then you better be prepared to try the case.   

On the flip side of the coin, if the facts are bad for my client (and there really aren't many defense options), I will try to focus on the "equities" of the case.  In other words, I will focus on the good things about my client (instead of the facts of the case) when negotiating the plea. 

For example,  I recently had an Aggravated DWI case where my client blew a 0.22% BAC and was involved in two property damage accidents in two places on the same night.   He also admitted to drinking 9 alcoholic beverages before getting behind the wheel.  The facts were bad.  

However, during the negotiation I focused on his lack of a criminal history and the fact that he was so honest about his drunk driving and owning up to his mistake when confronted by police.  As a result, the prosecutor was mollified and he was allowed to plea to a reduced DWI charge (and they dismissed the rest of the charges against him) despite the fact that it would have been relatively easy to convict him at trial on all the original charges.

Ultimately, it is important to consider the case in two lights:  the "big picture" and the "nitty gritty." Both can help give context to a crime and help negotiate a favorable outcome for the client. 

SUMMARY THOUGHTS

The initial offer is always a starting point and should be treated as such.  It is very rarely a good idea (barring extraordinary circumstances) to take a first plea offer from a prosecutor. 

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

BAD IDEAS: Twitter, Facebook, Instagram & your Case

POSTING STUFF ON THE INTERNET DURING YOUR CRIMINAL CASE = 

A BAD IDEA

Why's that?  


1.  The internet has made catching criminals SOOOO easy for police & prosecutors.

Really.  It's like shooting fish in a barrel.  Here's a couple of examples...

Facebook, Instagram, Twitter

a) You're charged with DWI.  The prosecutor searches your name on Google and comes up with several photos of you doing keg stands in college.  BOOM.  Goes right into the trial folder and will be shown to a jury.  

b) You're charged with assault in the 3rd degree.  The police searches for your name and comes across your Twitter account.  You made a couple racist jokes (purely in jest) and it turns out the guy you hit in a bar room brawl was black.  BOOM.  Goes into the trial folder. 

c) You're charged with a speeding ticket.  Prosecutor searches for you online and finds your instagram account riddled with pictures of fast cars, posters of Fast & Furious, etc etc etc. BOOM.  She'll try to introduce it as evidence of a pattern of speeding or a desire to speed.  

2.  ANYTHING written online ---status updates, Tweets, captions---are Admissions.

I've covered this in a couple posts.  If you verbally say anything or write anything...it can be used against you.  So don't.  Even things you've said in the past can come back to haunt you. 

Previous Tweets, Facebook posts, photos, things you've "LIKED" on FB, groups you belong to, etc etc etc.  These things can all be turned against you in a criminal case.  

3.  The internet lasts FOREVER.  Once it's out there...it's out there.  

Oh, but I could delete my account!   Nope.  That stuff is stored on servers at Facebook and Twitter and Instagram.  All it takes is a valid subpoena for Facebook, Twitter, etc  to produce things from your online accounts in a criminal case.  Therefore, I caution you against putting offensive things online that could be construed in a negative light against you.  

---SOLUTIONS & ADVICE---

I'm not advocating for you to never use the internet again.  Just be smart about it.  

I advise all my clients charged with crimes to suspend their Facebook and Twitter accounts during the criminal case.  It's not worth it.  Don't give the prosecutor a chance to google you and discover more ammunition against you.  I know it's hard to unplug...but when your freedom on the line it should be an easy decision. 

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

GREEN BEER & DWI IN ITHACA

HAPPY ST. PATRICK'S DAY! 

I'm 75% Irish and I'm from Boston so St. Patty's has always been a part of my life.  As proof of my heritage, my younger brother is named Patrick.  lol

Courtesy 2beerguys.com

Unfortunately, St. Patty's is also a BIG DAY for drunk driving.  In Ithaca, the problem is even more pronounced than in some other areas due to the large population of college students at Ithaca College, Cornell University, and Tompkins County Community College (TC3).  

St. Patty's is known for binge drinking green beer, chugging Irish Car Bombs [a shot of Baileys Irish Cream put into a pint of Guinness], and drinking copious amounts of Jameson Whiskey. 




It's a big part of our American culture that it is expected for college students to drink. College kids also drink with a singular purpose...to get DRUNK.  

I won't talk about the health risks of excessive drinking (I'm not a medical doctor), but I will address the dangers of excessive drinking and DRIVING.  The focus of this blog is drunk driving, and St. Patty's Day gives college drinkers an excuse to get blasted and drive on a Tuesday. 

As a DWI defense lawyer, my advice is this:  know your limits, call a cab, and take the keys from any friend or relative that you know has had ANYTHING TO DRINK before getting behind the wheel.  The police will be out tonight in full force.... meaning the ENTIRE force will be on the lookout for DWI's.

If you get caught (even if you don't hurt somebody or yourself), you could end up with a permanent criminal record that stays with you your whole life.  Not to mention your exposure to a jail sentence, fines, drunk driving classes, loss of license, ignition interlock device requirements etc etc etc.(see some of my other blog posts).  

New York has some of the harshest DWI laws in the USA.  You don't want to experience that statistic first hand...

Please celebrate the holiday -but do it safely.  Party on, Wayne! (90's reference --I'm betraying my age)  

HAPPY ST. PATTY'S DAY & Party Smart!  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

DWI: 3 Levels of Punishment in NY

I get asked this question all the time from clients...."what is my worst case scenario?" 

That is a loaded question for several reasons when facing DWI charges.  One of those reasons is that New York has a tiered system of criminal punishment.  I'll discuss each tier individually to help make things more clear.

Ithaca Police HQ

LOWEST LEVEL= CONDITIONAL DISCHARGE

What is a "conditional discharge" ?  (also referred to as a "CD")

It is basically an order from the court to stay out of trouble (usually for 1 year).  Well,  that begs the question- --what is trouble?  

Trouble is getting a new arrest during this period.  Note that I didn't say a conviction.  As long as the ARREST is valid, you can be violated on your CD.  

You can also be violated if the court gives you specific conditions (like abstaining from using drugs or alcohol) and you get caught.  

If you violate the CD, the court may sentence you up to the maximum for the charge you either pled or were found guilty of... for misdemeanor DWI charges that term is 1 year in county jail. This also means that the judge can sentence you to anything in between...

I've had clients sentenced on violations of a CD that range from jail to simply prolonging the original CD year and adding conditions or community service.  I have also had clients upgraded from a CD to a probation term.  

IC Police Cruiser

MIDDLE LEVEL = PROBATION SUPERVISION

This level of punishment means that the government will keep track of you and will give you court ordered obligations to check in with the Probation Department.  

What is probation like?  

1. You get a new set of rules to live by called "orders and conditions of probation."  They are incredibly strict and usually require total abstention from drugs and alcohol, turn in any firearms you own, no new arrests, be on time for appointments, submit to drug tests, find employment etc etc etc

2.  You give up your rights to privacy.  If you are on probation, your probation officer can come to your house unannounced and demand entry to search the whole place.  You cannot fight this--it is part of being on probation. 

If at any point your officer feels that you are not complying with some rule or regulation of your probation sentence, they can file a violation against you. 

If you are violated, the judge may resentence you up to the maximum sentence allowable for whatever crime you pled to or were found guilty.

3. Probation terms can be 2 or 3 years (for misdemeanors) or much longer for felonies. That is a long time to live under constant scrutiny and supervision.  It is also a much longer time period for somebody to make a mistake and get violated.  

I've had clients do well on probation and I have had clients that have been violated almost instantly.  It is certainly not a good solution for somebody who has a significant problem with alcohol or drug abuse --due to the total abstention condition.

HIGHEST LEVEL = JAIL OR STATE PRISON TERM

When negotiating a plea offer or discussing things with a client, jail is often considered, by many clients and prosecutors alike, as "the harshest punishment."  

If we are talking about state prison, I would have to agree.  State prison sentences are to be avoided for the most part (unless you have done state time before and understand its pro's and cons).  Ultimately, jail or prison is taking your freedom away, so it is certainly a big deal.

However, in my experience, short county jail terms (especially in Ithaca's Tompkins County jail) are usually LESS HARSH than a term of probation for most clients.  

Obviously, if there is a choice between jail or probation, it is the client's decision to make.  If I am asked my opinion on what a client should do, I would almost always advocate for the jail term.  

Here are my typical reasons for advocating for a jail sentence over probation. 

1.  The jail sentence is always shorter than the probation term. 
2.  It is very unlikely that you will be violated on your CD while in jail in Ithaca.
3.  The Tompkins County jail is one of the nicest, safest county jails in upstate NY.
4.  The jail sentence is reduced by 1/3 for "good time" for everybody.  So if you are sentenced to 15 days, you will only actually serve 10 days.  
5.  If you have a lawyer who understands how the jail tallies "days in" then you can come up with creative ways to shorten the time.  

--SUMMARY THOUGHTS-- 

All of the above should be discussed with you if you are charged with ANY crime.  Your lawyer should be aware of the upsides and downsides --and also the likelihood that one of these punishments will be imposed upon you or offered to you in a plea deal. 

Bear in mind that these are generalized thoughts and my opinion could change on the above in a specific situation.  

Bottom line is that every case is different and the potential punishment has to be analyzed by you and your counsel with the same vigor as the criminal case.  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

FRESHMAN SERIES: Facts about Drinking and Driving in Ithaca, NY

What constitutes "drunk driving" in New York ?

First of all, congrats on getting into Ithaca College or Cornell University or TC3.  College is an awesome time of life and I encourage you to take full advantage while you can.  

That said, this post aims to give you the facts about NY DWI law so you can make educated decisions while enjoying your college days. 

JUST THE FACTS, MA'AM.  

1.  DRUNK DRIVING...BUT YOU'RE NOT EVEN BUZZED?!?

YES.  If your BAC is only 0.01% you can be charged with violation level drunk driving [Driving While Ability Impaired, VTL s. 1192.1].   So basically, any drinking --even 1 drink--could hypothetically get you charged with a pretty serious crime if you are unlucky enough to get pulled over.  And the police can (and will) pull you over for a tail light out or failing to use a turn signal etc. 

What's penalties for DWAI (1192.1) ?  
-90 day license suspension
-up to 15 days in jail
-fines between $300-$500
-mandatory court surcharges of either $255 or $260
- attendance at Victim Impact Panel (a class)
-mandatory NY DMV civil fines of $250 per year for THREE years (i.e. $750)

IF UNDER age 21 (as most college freshman are...)--license revocation for 1 year! 

Bottom line:  That's ALOT OF $$$$ for no buzz.  It's in your best interest to take a cab because the 5 different police departments in Ithaca, NY specifically pull over cars full of college kids looking for drunk driving.  You will NOT get the benefit of the doubt by the officer on scene.  

2.  DWI > over 0.08% BAC.   The legal limit in NY is 0.08%.  To charge somebody with DWI over 0.08% VTL 1192.2 (you actually have to be OVER...so 0.09% - 0.17% BAC).  There is also a common law DWI charge VTL 1192.3.  The major difference is that it doesn't specify a BAC number.  So the prosecutor has more room to try to make a case if somebody refuses the chemical test.  Every Defendant charged with DWI over .08 (VTL 1192.2) is charged with both of these crimes .  

3.  Aggravated DWI in NY is 0.18% BAC or over.  The penalties increase as the BAC increases.  More fines, more surcharges, longer license suspensions, drunk driving programs and the 1 year jail term or 3 years probation etc. etc. etc. 

4.  REFUSING TO TAKE A TEST: 

There are couple different kinds of refusals because there are different tests that the police make you take at the side of the road or back at the station.  

A.  Alco-sensor Preliminary Breath Test (aka PBT).  This is a preliminary screening tool for the police to assess drunk driving.  It is NOT admissible in Court.  However, if you refuse, you will be subject to civil penalties that are similar to a traffic ticket.  The Penalties are:

VTL s.1194(1)(b):  $0-$150 fine plus $250 per year x 3 years to DMV plus $88 or $93 surcharge (depending on court)

B.  Field Sobriety Tests.  There are 3 national standardized field sobriety tests (SFSTs):  The walk and turn, one-legged stand, and horizontal gaze nystagmus test (HGN).  The SFSTs are admissible in court and the officer will discuss them ALOT.  If you refuse them, the prosecutor can use the refusal as evidence against you.  There are no other criminal or civil penalties for refusing these tests. 

C.  Chemical Tests (chemical breath tests and blood tests).  If you refuse these tests, there are significant penalties by the DMV.  They include loss of license for 1 year (consecutively with any suspension given for the criminal charges...), civil fines of $750 over 3 years, etc.  You are entitled to a refusal hearing if you refuse these tests.  Also, the police officer has a strict set of guidelines that they have to abide by for the refusal to be deemed "knowing and intelligent."  They have to ask you a series of times and make notes about each refusal.  It's not hard to meet those guidelines though, the police are given a card to read each time they ask you, and if they follow the card they meet the guidelines.
Regardless, you need an attorney to question them hard about the way the refusal questions were given--and MOST IMPORTANTLY, you need an attorney to attend the DMV refusal hearing because it is a terrific way to generate evidence to use in a future criminal suppression hearing or trial.  

[Professional note:  if you have a lawyer who will not attend a refusal hearing and question the officer, get a new lawyer.   It's that big a deal.]

--SUMMARY THOUGHTS-- 

Hope this info will help you navigate drinking during freshman year and beyond.  Welcome to Ithaca! 

BY:  Attorney Mike Cyr

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

Twitter:   @ithacadwi

3 ways your DWI will NOT suspend your license

Here are THREE examples of when you will NOT get your New York driving privileges suspended following charges for DWI, DWAI (drugs) or DWAI (combined drugs/alcohol).  

Now these situations all have one thing in common at the start of a case---LACK OF LEGAL PROOF.  There's a legal threshold to charge somebody with a crime and then there are additional thresholds to prosecute somebody further throughout the criminal judicial process.  

1.  If your BAC (Blood Alcohol Concentration) is LESS THAN 0.08% [which is the NY legal limit], then the Judge cannot suspend your license at the first court appearance.  If the BAC number on the certified breath test or blood test does not rise to the level of 0.08...then the Judge cannot suspend your license pending prosecution.  This is because the prosecutor does not have the LEGAL PROOF of impairment of a BAC over 0.08%.   The law that says this is Vehicle and Traffic Law s. 1193 (2)(e)(7).  

However, like all things in the law, there is an exception.. if your license is a "Junior License."  .If you are under 18 years old, your license is a "DJ" or an "MJ": [which stands for Driving Junior or Motorcycle Junior respectively], and ANY alcohol related charge allows a judge to suspend your license under VTL s.1193 (2)(e)(7)(a-1) , NY has a "zero tolerance" law that allows a Judge to suspend driving privileges if the under age Defendant has ANY alcohol in their blood.  So even a BAC of 0.01% allows a judge to suspend a youth's license in NY.

What if the BAC is exactly 0.08% ???? 

Well, the law seems clear in a way on this--but it wouldn't surprise me if a judge went the other way.  Here's some history, NY used to have a legal limit of 0.10% BAC for drunk driving charges.  Today, it's been lowered to 0.08% to match the rest of the country.  

There was a landmark DWI case in New York in 1996 called Pringle v. Wolf.  This case made clear that Defendants had a right to a hearing about suspending their driver's license at the beginning of a DWI case as well as other important things.  

In that case, the state's highest court [NY Court of Appeals] said that:  "The court may NOT order suspension of a driver's license unless it has in its possession the documented results of a reliable chemical test showing that the driver's blood alcohol leve was in excess of 0.10% as shown by the test."

Obviously, the law is now 0.08% but the principle in the case remains the same--therefore, it is my professional opinion that if you have a BAC of 0.08% or less, then the court should NOT suspend your driving privileges. 

2.  If the prosecutor cannot provide a CERTIFIED BREATH TEST at the initial appearance, then the judge cannot suspend your license.  VTL s. 1193 (2)(e)(7).   This piece of paper is the legal proof required for a judge to suspend.

3. If the prosecutory cannot provide the BLOOD TEST RESULT at the initial appearance, then the Defendant cannot have their license suspended.   This is pretty common.  

I see the lack of blood results all the time because it usually takes 6-8 weeks following a blood draw for the prosecutor to obtain a copy of the blood result.  Therefore, Defendants charged with DWAI (drugs) or combined drugs/alcohol usually do not have their license suspended immediately.  

There is an upside and downside to this...since the DMV only allows you to apply for a "pre-conviction conditional license" after your license has been suspended for 30 days under the above law, if you have to wait to get suspended while waiting for a blood test result, then you will also have to wait an EXTRA 30 days after the suspension to apply for your conditional license.  That means, that you can only apply for a "hardship license" at that moment when the prosecutor gives the blood test results --and those are harder to get.  Hence the name, "hardship license."   So, basically, DWAI drugs charges really suck.  

--SUMMARY THOUGHTS--

As you can see, the above stuff is pretty complex.  There's always exceptions or things to think about with your license when a DWI charge of any kind is on the line.  Just be sure that you're confident with your attorney before you walk into court and don't be afraid to ask questions --not only about your criminal charges, but also about what will happen to your license.  

Thanks for reading!  

BY:  Attorney Mike Cyr 

P:  607-229-5184

E:  mike.ithacadwi@gmail.com

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