Taking
Apart the Government’s DWI Refusal Case
Taking apart a prosecutor’s case is a slow methodical
process. Every case has it’s specific issues. Some cases share some common
ground. I will first go over common ground issues and points of attack.
1. The Police have NO Baseline to measure (or judge) you
by.
The police officer does not know “your” normal. They have
no prior knowledge to judge your nervousness or appearance. S/he will not know
how you normally look, walk, talk, or speak. What do your eyes normally look
like? Do you have a short leg? Do you have a speech impediment? Do you have
allergies? Do you sleep well at night or are you suffering from sleep
deprivation?
2. Many of their intoxication behavior related observations
could be due to other reasons.
Judges sometimes use the term that they found police
testimony to be unequivocal. Unequivocal is just a fancy way of saying that
something can have more than one interpretation or meaning. The observation of
bloodshot, watery eyes could be related to alcohol consumption but it could
also be related to a recent fight, or time of night, or an allergy, or
tiredness.
The
administrative license hearing and a suppression hearing are both opportunities
to cross examine the police officer concerning their “opinion” evidence.
The
Lazy Eye Case
I recently had a lazy eye case DWI Refusal Case. My client
informed the officer multiple times he had a lazy eye. Naturally this should
have placed the officer on guard or at least influenced him to re-think giving one
of the standardized field tests, the HGN test.
The HGN relies upon a normal, healthy, and fully
functioning pair of eyes. In fact the manual, the U.S. Department of
Transportation Standardized Manual (DWI Detection and Standardized Field Sobriety
Testing) states that before giving this test they should ask questions about
eye disorders or problems. People that have issues with their eye anatomy, eye
physiology, or have an eye disease may not be the best candidate for this
particular test.
They (the police) should check for equal tracking of the
eyes. These are police NOT doctors, optometrists, or ophthalmologists.
What
if Three Failed Field Tests Becomes Only One or Two?
The work up and preparation of this case included lots of
cross examination in this area. Think about it, three main standardized tests,
what if I topple one of the three? Then I am left with two tests. These other
two tests that are strictly dependent on muscle coordination and balance. How
many of us have two left feet? How many of us can perform physically under
pressure at the roadside? These are the main base of their opinion, their
foundation for proving not just impairment BUT intoxication.
The
How to "Nuts and Bolts" of Being Picky
Here is my cross examination of this lazy eye section. I
love when the police get into anatomy, science, and biology. My past experience
and training as a Chiropractic Physician come into play with many DWI and
personal injury cases. You want to diagnosis conditions get a degree, lots of training,
pass some boards, and get a license otherwise go home.
MY
Lazy Eye Cross Outline:
What is your training and certification in diagnosing eye
conditions?
You asked him if he has any medical condition?
Did you follow all the pre-procedures before giving him the
HGN test?
Did you Check for equal pupil size?
Resting nystagmus?
Equal tracking (following an object together)?
This is the check for medical impairment?
Medical disorders?
In your report You stated he didn’t have a lazy eye
Medically you can't always see a lazy eye?
Lazy eye is really a lazy brain?
The eye and the brain are not working together properly?
After he stated it to you twice?
You were trained in diagnosis of lazy eye (of course not,
he is a cop not a doctor)?
Can you always see a lazy eye (he thought he could)?
Isn’t it a visual disturbance problem?
A lazy eye is a brain disorder?
The eye can appear normal (he didn't know this or reflect
this in his report) ?
In your training and certification in HGN are you aware of
the types of lazy eye?
Lazy Eye and Strabismus are not the same condition?
A person who has a crossed or turned eye (strabismus) has a
"lazy eye?"
But lazy eye (amblyopia) and strabismus are not the same
condition?
Amblyopia does not equal a visual/apparent misalignment?
Strabismus can cause amblyopia?
Amblyopia can result from a constant unilateral strabismus
(i.e., either the right or left eye turns all of the time)?
NOTE: While
a large eye turn or deviation (strabismus) is easily spotted by the layman,
amblyopia without strabismus or associated with a small deviation is usually
not noticed by parents or pediatricians.
If the eyes do not track together it may indicate an
underlying medical disorder?
This underlying disorder can cause the nystagmus that is
present?
Where
Do We Go From Here?
It (the cross outline) goes on past here but you get the
idea. A specific focused attack upon their faulty investigation, and it's
issues (weaknesses) can yield a weak intoxication opinion overall. As in,
goodbye testimony about the HGN test. If the driving is terrible I have more to
overcome but with fairly good driving or NO bad driving well I am getting
there.
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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