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

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 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.

*Attorney advertising

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

Ithaca Watkins Glen DWI Lawyer: What the Police Officer will testify to in a DWI case in New York

What the Police Officer

will testify to in a DWI case

in New York

This video is about what the police officer will likely testify to in a DWI case in New York. In most cases, there are 5 different things that an officer will testify to:

1. Your DRIVING (how good, how bad etc)

2. Observations of YOU (how you looked, talked, walked, acted, smelled)

3. Drug Recognition Evaluation or Standard Field Sobriety Tests (how you did, if you failed etc)

4. Breath or Blood Test Results (chemical test results only)

5. YOUR statements (both oral or written)

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

Or find us online! www.ithacadwi.com

www.fingerlakesdwi.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.

*Attorney advertising

Ithaca Binghamton DWI lawyers: What is the Role of a JURY in a DWI case in New York?

WHAT IS THE ROLE

OF THE JURY

in a DWI case

in New York?

This video is about the Role of a Jury in DWI case in New York.

The Jury's primary function is to be the "fact finder" in a criminal case --to determine, in their minds, what actually happened based on the evidence they get to see and hear during the trial. 

The Jury's other big function is to determine the "weight" of the evidence -- in other words, how important each piece of evidence is compared to each other.

If you have questions about a DWI charge in NY, call us: 607-229-5184

Or find us online! 

www.ithacadwi.com

www.fingerlakesdwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR

Copyright 2016. Educational Purposes Only.

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

*Attorney advertising

Ithaca Binghamton DWI lawyers: Different Penalties for 2 Types of Aggravated DWI in New York

DIFFERENT PENALTIES FOR
TWO TYPES OF AGGRAVATED DWI

in NEW YORK

This video is about the Different Penalties for 2 Types of Aggravated DWI in NY.  

As discussed in another video, there are two kinds of Aggravated DWI in New York. 

The misdemeanor level of Aggravated DWI is where your BAC is 0.18% or higher.  

The felony level of Aggravated DWI is where you had a child in your car age 15 or younger.  

The PENALTIES are very, very different.  

Worst case scenarios -- the misdemeanor carries a possible sentence of 1 year in COUNTY JAIL (local jail).  

VS.

Felony worst case scenario is a possible sentence of 1 1/3 to 4 years in STATE PRISON!!! (that's a big deal) 

If you have questions about a DWI charge in NY, call us:  607-229-5184

Or find us online!     www.ithacadwi.com

www.fingerlakesdwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR
Copyright 2016.  Educational Purposes Only.

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

*Attorney advertising

Ithaca Penn Yan DWI lawyers: There are 2 kinds of Aggravated DWI in New York!

DID YOU KNOW...

There are TWO KINDS of 

AGGRAVATED DWI in NEW YORK! 

This video is about the 2 different kinds Aggravated DWI in 

NY. They come in two different levels: misdemeanor (lower 

level) vs. felony (higher level crime).



If you get charged with misdemeanor Aggravated DWI then 

it means you gave a breath or blood test where your BAC 

(Blood Alcohol Content) was 0.18% or higher!



If you get charged with FELONY Aggravated DWI then it 

means that you are accused of having a child in your car 

age 15 or younger while bring intoxicated or high. 




If you have questions about a DWI charge in NY, call us: 

607-229-5184



Or find us online! www.ithacadwi.com

www.fingerlakesdwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi


BY NEWMAN & CYR



Copyright 2016. Educational Purposes Only.



*DISCLAIMER: If you have been charged with a crime in NY, 

we strongly urge you to consult with a local, licensed 

criminal defense attorney to lessen the possible negative 

outcomes of the charge--including the potential loss of your 

freedom.

*Attorney advertising

Ithaca Seneca DWI lawyers: What is HEARSAY in a DWI case in New York?

WHAT IS HEARSAY 

in a DWI case in New York?

This video is about what is HEARSAY in a DWI case in NY.

First of all, what is HEARSAY? It's a confusing topic. 

The legal definition: Hearsay is any out-of-court statement 

(written or verbal) that is used in a trial to prove that 

something happened (or didn't happen).

There are different forms of HEARSAY evidence --and some

 are admissible and some are not. 

For the most part, the paperwork in a DWI case in New York

is considered INADMISSIBLE HEARSAY (in other words, a 

jury will not see it!) 

However, the statements contained in that same paperwork 

will be heard by a jury when the police officer testifies at trial.

 

If you have questions about a DWI charge in NY, call us: 607-

229-5184

Or find us online! www.ithacadwi.com

www.fingerlakesdwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR

Copyright 2016. Educational Purposes Only.

*DISCLAIMER: If you have been charged with a crime in NY, 

we strongly urge you to consult with a local, licensed 

criminal defense attorney to lessen the possible negative 

outcomes of the charge--including the potential loss of your 

freedom.

*Attorney advertising

Ithaca Cortland DWI lawyers: Can you get your DWI charges DISMISSED if the paperwork is wrong in NY?

CAN YOU GET YOUR

DWI CHARGES DISMISSED

IF THE POLICE GET 

YOUR PAPERWORK WRONG

IN NEW YORK?

This video is about whether somebody can get their ticket or charges DISMISSED if the paperwork is wrong in NEW YORK?

Short answer is NO. 

The paperwork is not evidence --and any clerical errors can be fixed on paperwork.  The paperwork will not be seen by a jury and that's why it cannot get a charge dismissed all by itself...

HOWEVER, as we will discuss in another video--mistakes can be used against the police officer in a hearing or trial setting to your advantage if done right.  It can show police where careless or mistaken (among other things).

If you have questions about a DWI charge in New York, call us at 607-229-5184

Or find us online! 

www.ithacadwi.com

www.fingerlakesdwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR

Copyright 2016.  Educational Use Only.

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

*Attorney advertising

Ithaca Waterloo NY DWI Lawyer: It's all Evidentiary, my dear Watson!

image courtesy of nerdist.com

Ithaca and Waterloo New York DWI Attorney explains:

"It's ALL Evidentiary, my dear Watson"

In DWI it’s All Evidentiary, Dear Watson

Those who are fans of Sherlock Holmes can remember that oh so famous line.  Holmes, the brilliant sleuth and detective, had an uncanny way of looking at the evidence.  Follow the evidence, where does it lead us? Even modern medicine today has something called EBM, evidence based medicine. Doctors must discover or uncover the truth behind their patients’ symptoms.  Making a proper diagnosis must occur before starting treatment.

Well, in the world of DWI defense the evidence, again, is the place we must begin. We must gather all the evidence by both our investigation and then discovery from the Prosecutor.  Then we analyze the DWI evidence, and dissect it for it’s strengths and weaknesses.

There are, in fact, five types of DWI evidence:

1. The driving pattern or behavior prior to being stopped for    DWI,

2. Statements or admissions by the person charged with the DW,

3. Police testing: physical testing as in Field Side Sobriety or Drug Recognition,

4. Observable demeanor, cognition, articulation, and mannerisms,

5. Chemical testing of breath and/or a blood sample.

D is for Driving

The best cases to defend generally have either no driving or merely an equipment violation.  The worst cases to defend have accidents and hurt people.  Along the many degrees of the spectrum are everything in between the worst and the best. Our job is to look over all the driving.  Coming from a defense perspective we recognize that driving is an exercise staying within the lane of travel.  How much of what the police say is biased, and how much is just normal driving?

What did you say to the police?

Some people don’t say anything to the police after they are stopped for a DWI, and others can’t stop talking.  Sometimes the police act like your friend, gain your trust, and have you write them a little "I’m so sorry" statement.   The less you say is always best, but we often have to deal with statements or admissions of guilt.

Are these sobriety tests or physical coordination exercises?

Police can request you do all kinds of tests.  Some tests are recognized, called the FSTs (field sobriety tests).  They are the horizontal gaze nystagmus test, the walk and turn, and the one leg stand.  Many of the other police tests are just “made up” stuff.  Something new is called the DRE (drug recognition evaluation).  Specially trained officers who are certified give you the recognized tests and a bunch more to try and figure out what drug or drugs you are on.

How did you look, walk, talk, and appear to the police?

Police usually say that those that they arrested for DWI smelled like alcohol, had slurred speech, and bloodshot –watery eyes.  Those are typical signs of a drunk. What about the good stuff you were able to do and understand? You may have walked normally, followed all their instructions and directions, and showed complete understanding and responses to a million questions.  Your normal mental and physical faculties may reveal more about your true condition than a few coordination exercises.

Breath and blood tests don’t usually lie but they may not be accurate.

Taking a sample of your breath and accurately testing it is dependent on timing, your specific body chemistry, and whether it was properly obtained.  The breathalyzer is based upon average people but maybe you are not average.  The breath machine is most accurate after you have completely absorbed all the alcohol you drank.  The problem is many people are tested while they are still absorbing alcohol which yields a higher breath alcohol level.   Often the police don’t follow all their procedures properly and they may wind up testing a highly concentrated stomach or mouth alcohol sample instead of a deep lung sample.

BOTTOM LINE:

In DWI defense, the evidence must always be challenged for accuracy, for truthfulness, and for consistency.  As a whole - does it all make sense?  If someone has an extremely high BAC reading, why didn’t they need to use a bathroom for three or four hours?  Everything must be weighed and looked at as a whole - not as separate individual pieces.

BY Attorney Mike Cyr

NEWMAN & CYR

The DWI Attorneys

www.ithacadwi.com

www.fingerlakesdwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

Copyright Newman & Cyr 2016

Educational Purposes Only.

Ithaca Watkins Glen DWI lawyer: Retrograde Extrapolation is JUNK SCIENCE!

Loved this image (courtesy of veteranstoday.com)

"RETROGRADE EXTRAPOLATION"

is NOT reliable and should be

banned from Court rooms across the 

United States (and beyond).

This past week "Retrograde Extrapolation" technique used by Prosecutors on Long Island to prove somebody's Blood Alcohol Concentration (BAC) Level at the time of driving has gotten some press...

What is "Retrograde Extrapolation" ?

It is a "faux" scientific calculation that is supposed to determine what a persons BAC level was at an earlier time based on the results of a chemical test that read BELOW 0.08%. 

In other words, if you took a breath test and it read 0.06% BAC, a Prosecutor in New York could make an argument that based on this so-called scientific calculation, they could prove that your BAC at the time of driving was actually HIGHER than 0.08% (therefore, you could be found guilty of a DWI).  

Here is one article:   Here is a 2nd article. 

Why is "Retrograde Extrapolation" JUNK SCIENCE? 

Because it makes very large assumptions in every single case.  For starters, it assumes that every single human on earth eliminates alcohol from their system at a constant rate of 0.15% per hour.  

Doctors and scientists have found very large ranges in people for alcohol elimination.  Some alcoholics may process and eliminate alcohol at a much faster rate.  The single rate used in this calculation fails to account for:  gender, race, physical fitness, tolerance, food intake, digestion, age, strength of alcoholic beverage, trauma from an accident, etc, etc, etc,

It makes an ever bigger assumption when it assumes a point a time when a person's alcohol absorption "peaked."  

When we drink alcohol there are two phases.  The absorption phase and the elimination phase.  During the absorption phase, we do not yet feel the effects of alcohol until it has fully been absorbed by our stomach and small intestine into our blood stream.  Then it travels all over the body through our blood and we feel it in our head!  (getting "buzzed")

Problem with RETROGRADE EXTRAPOLATION:  there is no way to measure or know when a person has finished the Absorption phase!  (PEAKED)

However, in order for a real, reliable calculation to work, we would have to know precisely when the alcohol absorption phase PEAKED and the body began to eliminate alcohol (assuming the rate is 0.15). Without that precise time, there would be NO WAY to ever know what somebody's BAC was by simply adding backwards.

That is why I have strong feelings about PSEUDO-SCIENCE being used in court rooms in front of a JURY.  (this stuff is believable if you don't understand the science behind it!).  

If a Jury is not comprised of chemists and biologists (or mathematicians), then it would be confusing and sound really easy to believe if an "expert" for the Government is saying that they did this calculation and they're SURE the Defendant was over 0.08% at the time of driving... And they will testify that it is based on SCIENCE. 

Only it's NOT. 

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 Auburn DWI Lawyer: Ignition Interlock Device and Getting your FULL license Back after DWI in NY

IID and Getting Full Restoration of 

Your License Privileges

(This 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)

DMV DWI "A4" License Restriction= 

NO driving without an IID

Effective November 1, 2013 all court-ordered ignition interlocks for DWI cases
will now be classified as a license restriction A4 by the DMV. This is regardless
of whether the case is resolved with a CD (conditional discharge) or a term of
Probation monitoring and supervision (two or three year term).

Getting Fully Re-licensed Requires Removing the A4 Restriction

This will require one of two things for removal. This is not removal of the IID from
the car, this is about removal of the requirement from the physical driver's
license and DMV record. You see, every license with this A4 requirement will be
marked on the back of the license with an "A4" for law enforcement. For the
DMV to remove the A4 restriction, you will need a Court document indicating
removal of the IID or a probation release of license document.

*NOTE: This document will need to be brought to the DMV to get FULLY relicensed.

Court Ordered Ignition Interlocks by the Numbers:

-Court ordered for 12 months on every DWI

-Minimum time period of 6 months of placement with NO violations noted

-Some counties only note violations above .02 BAC

-One time .05 BAC or more is an automatic violation

-Court can be petitioned after 6 months for early release of IID

-Monitored by the County of Arrest (Conditional Discharge) or County of
Probation (Probation)

-Violations can result in a VTL 1198 (9)(d), a misdemeanor
called "Circumvention of the use of the interlock device" punishable by up to a
year in jail and/or probation and/or fines and/or increased time with the IID
installed

-Violations can also result in Violation of your original Conditional Discharge

-Violations can result in resentencing on plead to offense (jail and/or probation)

-Violations can also result in Violation of Probation (typically 6 months of jail)

-Ignition Interlock will be displayed on YOUR DMV record (and back of your
driver's license)

-A4 will appear on front of your driver's license as R:A4 (restriction A4)

(if you want to know more, check out the full ebook at the link above)

COPYRIGHT CYR & ASSOCIATES 2015

Questions?  Call us:  607-229-5184

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

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi OR @ithacadwi

BY MIKE CYR

Ithaca Seneca Falls DWI Lawyer: Is the New York Drinking Driver Program mandatory???

Photo of actual New York DMV DDP pamphlet

Is the Drinking Driver Program MANDATORY for those convicted of drunk driving in New York?

My clients ask me constantly:  Do I HAVE to take the Drinking Driver Program?

My short answer is:  Probably eventually--if you want to have a Conditional License during your suspension or revocation.  Read entire post. (this only applies to DWI cases with alcohol...not drug cases).  There is no clear answer due to practical realities in NY.

I'll break it down into two distinct phases of a DWI case...

PHASE ONE - BEFORE you are sentenced on a DWI

If you are charged with a DWI in New York, you will likely be eligible for a CONDITIONAL LICENSE 30 days following your first court appearance.  

[Exception:  if you had a Conditional License within 5 years of your new DWI charge - in that case, you get no driving privileges before or after sentencing]

So, 30 days after your arraignment (first court appearance), you can go to the local DMV, pay $75 and get your "Pre-Conviction Conditional License."  

HERE IS INFO from the DMV website on the Conditional License:

Where and when you can drive

A conditional license/driving privilege is not valid to operate a taxicab or a vehicle for which a Commercial Driver License (CDL) is required.

If you receive a conditional license or conditional driving privilege, you may drive ONLY under the following circumstances

• to and from your place of employment
• during the hours of employment if your job requires you to drive a motor vehicle
• to and from a Motor Vehicle office to transact business regarding the conditional license or Drinking Driver Program (DDP)
• to and from a class or activity that is an authorized part of the DDP
• to and from a class or course at an accredited school, college or university, or at a state-approved institution of vocational or technical training in which you are enrolled - a conditional license/driving privilege CANNOT be used to drive to and from a high school
• to and from probation activities ordered by the court
• during an assigned period of three consecutive hours between 5 am and 9 pm once a week - the assigned period will not be changed unless this privilege is amended
• to and from a medical appointment that is part of necessary treatment for you or a member of your household - you must carry a written statement from your licensed medical practitioner as evidence, and show it to any police officer who asks to see it
• to and from a child’s school/day care if the child’s attendance at the school/day care is necessary for you to maintain employment or enrollment to an accredited school, college or university, or at a state-approved institution of vocational or technical training

http://dmv.ny.gov/tickets/conditional-license

This Pre-Conviction Conditional License (PCCL) is good until you are sentenced on the DWI charge.   *You have not taken the DDP yet, but you are ELIGIBLE due to the charges against you. 

PHASE TWO - AFTER you are sentenced on a DWI

After you get sentenced to ANY drunk driving-related charge in New York, you will have to change your "Pre-Conviction Conditional License" (PCCL) to a "Post-Revocation Conditional License" (PRCL) by actually going to the DMV in-person.

What's the difference between the PCCL and the PRCL in terms of your driving privileges?  

Answer:  NOTHING!   They provide the same privileges-just use different names.

Your PRCL will give you driving privileges until the end of your revocation or suspension.  

What does this have to do with the DDP?

When the DMV computer system gets updated with your DW conviction (typically takes 12-14 business days after sentencing in the court in our area of upstate NY), you will have to physically go to the DMV to change your PCCL to a PRCL.  

At this interaction, the DMV will EXPECT you to sign up for the Drinking Driver Program.  This is where they give you an ultimatum: 

"If you want to continue to drive on a Conditional License --you will have to take the DDP."

But is it TRUE? 

It's a complicated question because the information my clients receive from the actual DMV is DIFFERENT from the information on the DMV website.  At the DMV, representatives tell my clients you MUST participate in the DDP if you want to continue driving on your PRCL.... but see this text below from the New York DMV website...

Eligibility

Participation in the Drinking Driver Program is available on a voluntary basis if you have been convicted of an alcohol or drug related driving violation, unless you have participated in the program within the last 5 years, or have been convicted of another alcohol or drug violation within 5 years of the current alcohol or drug violation.

http://dmv.ny.gov/tickets/about-drinking-driver-program

HOW DO WE HANDLE THIS PARADOX?

*We encourage our clients to take the DDP.  The benefits outweigh the costs in most situations. 

We tell our clients to sign up for the DDP at the actual place where the class is given because sometimes the DMV representatives overcharge for the course.  The costs varies in each county based on the DDP provider.  Maximum cost is $225.

What happens if you decide NOT to participate in DDP?

Despite what I just posted above from the DMV website, the hard reality is that they could (potentially) take away your Conditional License.  If you let this issue go and simply try to evade the DDP over the course of your revocation or suspension, it is possible that the DMV will catch it at the conclusion of your suspension and force you to take it BEFORE they give your full driving privileges back.  Whether they are right or wrong...

This issue is complicated because this is the feeling of some DMVs around the state, but the DMV website claims that the program is VOLUNTARY. It's a difficult issue to navigate because sometimes when people are "supposed" to do something, they don't follow the rules.  

Remember, the DMV is the Judge, Jury, and Executioner when it comes to your ability to drive in New York.  They can do whatever they like.

What is the benefit of participating in DDP?

If you take the DDP, then you will maintain your conditional driving privileges.  Also, and more importantly, you MAY have your full driving privileges restored EARLIER than you were sentenced.  For many first time offenders, the DMV will give FULL PRIVILEGES BACK upon completion of the DDP.   So, if you have a 6 month revocation and you complete the DDP at the 3 month mark, it is possible that the DMV could cut your revocation short by 3 months!  That's a huge amount of time.  

Ultimately, it is in the DMV's discretion is they choose to do this.  It is handled on a case-by-case basis.  If you have a clean history and are a first time offender, you have a good chance of having this happen.  It's a good thing. 

I hope this post was enlightening on a confusing topic.  To take or not to take the DDP...

By Attorney Mike Cyr

Copyright 2015

Call me with questions:  607-229-5184

Email:  mike.ithacadwi@gmail.com

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi  OR @ithacadwi

www.ithacadwi2.blogspot.com