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| Degree by degree from Mathisfun.com |
The
Refusal DWI Success or Failure
is Largely a Matter of Degree
Now we are at the crux, the crossroads of the DWI refusal
case, it is all a matter of DEGREE.
What are the real difference (s) between an impaired person (DWAI) and an intoxicated person (DWI)?
Where and when does highly impaired then become
intoxication?
Sometimes the police and people use the terms
interchangeably. If NYS did not have a lower level offense called Ability
Impaired I think that the large majority of people would not see or understand
any difference at all.
In my
mind, where is this DWI/DWAI threshold?
NYS law says it is when the motorist is IN-capable (to a
substantial extent) of mental and physical operation of a car as a reasonably
prudent (careful) person. Subjectively it will take into consideration all your behavior on the date of your
arrest. The prosecutor through their police witnesses will paint out and reveal
strictly all that you did and said that demonstrates and proves intoxicated
behavior. Your attorney will then have an opportunity to cross examine on each
of those areas. The goal is to bring out weaknesses, bias, and inconsistencies
in the police’s opinion of your intoxication.
The Somewhat
“Low” Legal Standard of Proof of a DWAI (Driving While Ability Impaired)
I feel that the lesser included of offense of DWAI is the
goal with many refusal cases for the following three reasons:
1. Impairment under NYS law has a low legal standard of any extent.
2. Practically, without a conviction to a DW (VTL 1192)
offense you will be unable to take the DMV DDP (Drinking Driver Program), and
then get a Conditional Driver’s License.
3. DWAI is a non-criminal (traffic violation, and is not
considered a criminal conviction
A person’s ability to operate a motor vehicle is IMPAIRED
by the consumption of alcohol when that person’s
consumption of
alcohol has actually impaired, to any extent, the physical and
mental abilities which such person is expected to possess
in order
to operate a vehicle as a reasonable and prudent driver.
NYS Jury Instruction on DWAI
A jury is told to consider the following to make a
determination of guilt or innocence under NYS jury instructions for DWAI:
You may consider all the surrounding facts and
circumstances,
including, for example:
·
the defendant’s physical condition and
appearance,
·
balance and coordination,
·
manner of speech;
·
the presence or absence of an odor of alcohol;
·
the manner in which the defendant operated the
motor vehicle;
·
opinion testimony regarding the defendant’s
sobriety;
·
the circumstances of any accident
Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.
Over 95% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 400 blog posts, dozens of articles, and over 330 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.
607.229.5184
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