Assessing the potential strengths,
and weaknesses of a
NYS DWI Refusal case
DWI refusal cases always begin and end with the letter “D.”
The first place everyone involved will focus will be the driving. For any Judge
and Prosecutor viewing a DWI the driving is public enemy number one. That is
why if there was an accident, and if there was alcohol and/or drugs involved,
it is automatically assumed to be due to intoxication.
Driving is always the number one element in even a
breath/blood test DWI but most especially with a DWI refusal case. The reason
for this is everyone’s secondary focus in DWI cases is on “the Number.”
Judges, prosecutors,
and jurors all want to know, “what was the BAC number?” Was it high? Was it
low? Was it double the legal limit? Just how “drunk” were they? With the DWI
refusal we have NO number, so we are left to focus upon what we do have:
Driving and Behavior.
What
kind or type of driving behavior do we have in this refusal case?
There are 24 commonly observed driving patterns that signal
to the police nighttime impaired motorists. These come from the National
Highway Traffic Safety Administration booklet- “The Visual Detection of DWI
Motorists” (DOT HS 808 677).
Some of the impaired or bad patterns of driving behavior
are weaving, straddling lanes, swerving, turning wide radius, drifting, almost
hitting cars or railings, stopping abruptly, accelerating rapidly, decelerating
rapidly, very slow speed, and/or a slow response to traffic signals and/or the
police officer’s signals.
Can your
bad driving behavior be attributed to other reasons?
You can be a bad driver, a tired driver, or a distracted
driver and display any of these erratic patterns without any alcohol in your
system. Was there another non alcohol related reason for your poor driving
behavior? Could it have been a lack of sleep, being overly worked/tired, having
a cold, sickness and/or an allergy? These conditions can all contribute to bad
driving behavior. Sometimes I have used the Big Mac defense. My client was
eating while driving. Thank G-d there is no law against that yet but it can be highly
distracting to eat a burger, fries, and a shake while navigating a car.
What
if we have perfect or pretty good driving pattern?
I believe that if you have a good "D" in a DWI refusal
case you are half-way home. Imagine if you will the district attorney
presenting a drunk driving case to a judge or jury with NO drunk driving
pattern. That’s a good one, a drunk driving case and criminal charge with NO
bad driving.
Remember in DWI arrests the police first have to stop a car
for PC (probable cause), ie. a valid reason. If the reason for the stop is an
equipment violation (broken lights, muffler, registration) then we have
absolutely NO bad (drunk) driving. If the reason is speeding or not using a
turn signal then fast driving or failure to signal maybe a violation but it is NOT
necessarily drunk driving
After looking at the driving behavior in a DWI Refusal case
the second place I try to stake my claim of sobriety is on my client’s mental
state. Alcohol hits the mind (the brain) before it gets to the other parts of
the body. As they say, alcohol goes to your head. Studies from Germany have
shown that within six minutes of consumption alcohol begins to affect brain
function. Alcohol is also known to be most damaging to this area of the body
over time with alcoholic brains being diminished in size.
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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