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| Are you ready? from punisherspb.com |
When I think about defending a DWI refusal case the first
word that comes to mind is Attrition.
It is a war of attrition between you and the government. Wearing down your
opponent has been a clever war and battle strategy for thousands of years.
The legendary boxer Mohammed Ali, and his “Rope a Dope” applied
this same principle. He would “float like a butterfly and sting like a bee.” He
would dance around the ring, allow the other fighters to wear themselves out
throwing punch after punch, using the ropes to absorb his opponents blows, and
then pounce on them.
“Ironically, Ali's preparation for the fight, which
involved toughening himself up by allowing his sparring partners to pummel him,
contributed to observers' sense that Ali was outmatched. When Foreman became
tired from the beating he was delivering, Ali regrouped and ended up winning
the match.”
From Norman Mailer’s, “The Rumble in the
Jungle”
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| Love this Movie!! from screened.com |
One of my favorite screen characters is John Rambo. What
makes Rambo so bad a… is not his
fighting ability, it is his ability to survive. One of my favorite parts of the
movie “First Blood” is when Colonel Trautman (Rambo’s old leader) tells the
sheriff about who and what he is dealing with after Rambo trounces (but doesn’t
kill) his men. It Rambo’s ability to adapt to hostile terrain, to be
resourceful, and most importantly outlast his opponents.
Col. Trautman: You don't seem to want to accept the fact that you're dealing with
an expert in guerrilla warfare, with a man who's
the best! With guns, with knives, with his bare hands! A man who's been trained
to ignore pain! To ignore weather! To live off the land! To eat things that
would make a billy goat puke! In Vietnam his job was to dispose of enemy
personnel...to kill, period! Win by attrition... well Rambo was THE BEST!
From
Rambo, First Blood
By this time you are probably thinking, how does a New York
DWI refusal case align and succeed with a Rambo defense?
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| Using Survival Skills with a Survival Knife from knife-depot.com |
Your
Ability to Defend the Refusal Case = Your Ability to Survive the Refusal
Process
To win a refusal case (disprove intoxication) you have to
be willing to do what it takes. The prosecutors in most New York State counties
are not just pleading them down to the non-criminal violation of VTL 1192 (1)
DWAI (Driving While Ability Impaired).
Are YOU willing to commit to the following?
You
must be able to survive without a driver’s license for an indeterminate period
of time.
You
must weather the storms and costs of administrative hearings, a suppression
hearing, pre-trial motions, and pre-trial conferences.
You and
your attorney must visit the site of your driving and arrest for the map (or
the police report) is certainly not the territory.
You
must relive the driving, and the arrest in detail to your attorney.
You
must provide your clothing, your shoes, your medical records, and your health
history. They all may provide keys to your defense.
You
must provide your attorney with as much detailed information about you and the
night as possible.
Ultimately,
you must be willing to put yourself and your case to trial.
In the end I believe that New York DWI Refusals are highly
defensible cases. This means that given enough effort and time the large
majority of cases can result in successful outcomes.
 |
| Gotta Know Your Instructions from Floridasupremecourt.org |
The
Importance of Jury Instructions
When defending any criminal case we must always begin with
the end in mind. What is it specifically that the prosecution must prove beyond
a reasonable doubt. Every New York State charge (Crime/Offense) has a very
specific jury instruction.
Understanding what the law demands as proof of a crime and
breaking it down into it’s individual parts (elements) allows for a focused
defense. Throughout this book I will be referring to the New York State Jury
Instructions. Jury instructions are also called charges to the jury. They are
read by the judge to the jury. The judge’s role is to GIVE and INSTRUCT the
law. The jurors’ role is to FIND the FACTS and APPLY the law as GIVEN. The jury
also receives a written copy of these instructions to follow.
The instructions inform the jury about what the law is, and
what the definitions of specific legal terms are. Terms like intoxication and
impairment have varying definitions culturally but state to state they are specifically
defined by law.
The instructions also inform the jury about what types of
evidence they should look at and consider in making their ultimate
determination of guilt or innocence. The instructions provide explanation and
structure to their job as jurors.
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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