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| So guilty... from mindbodygreen.com |
The
Damning Consciousness of Guilt Jury Instruction
If your DWI refusal case proceeds to a trial then the jury
will get an instruction from the Judge that they may infer a Consciousness of Guilt from your choice
to not take the chemical test. This may not be the real reason that you decided
to not take their test but it is a damning instruction nevertheless.
If there was an improper refusal to submit to a test, add:
Under our law, if a person has been given a clear and
unequivocal warning of the consequences of refusing to
submit to
a chemical test and persists in refusing to submit to such
test, and
there is no innocent
explanation for such refusal, then the jury may,
but is not required to,
infer that the defendant refused to submit to
a chemical test because he or she feared that the test
would
disclose evidence of the presence of alcohol in violation
of law.
NYS Jury Instruction on Consciousness of
Guilt
Your
Choice: Bench Trial versus Jury Trial
To counteract the effects of a guilt instruction on a
jury’s mindset I sometimes feel it is a better strategy to have a bench (judge)
trial. A judge will generally be less affected by this instruction and will
also understand the legal differences between a DWI and DWAI. Jury instructions
and legal definitions can sometimes be confusing for jurors.
Your lawyer does not make the Judge versus Jury Trial
decision. A client MUST make this decision, and sign a waiver of jury trial
form.
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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