"AND"
The
power of just three little letters.
When looking over the jury instruction for a common law NYS
DWI refusal, VTL 1192 (3) one word stands out to me. The word is “AND” and under
our case law (remember NYS is a common law state) the definition of
intoxication is defined, interpreted, and applied as "physical and mental" incapacity to
operate a car as a reasonably prudent driver.
After years of attending DWI/DUI conferences in other
states I am more attune to subtle differences in legal definitions. In Texas,
their legal definition of DWI is physical OR
mental. So in that state either or is a lower hurdle for the prosecution. They
can prove one or the other to make out an intoxication case.
To me in the defense of NYS DWI the word "and"
has great power and significance. The prosecution’s burden goes to BOTH mental
and physical behavior. They must prove both mental incapacity and physical incapacity legally.
I can challenge them as to both these elements in hearings and at trial, the mental
and the physical. Maybe my client is uncoordinated, imbalanced, and has two
left feet but is mentally sharp, alert, and coherent.
The two prominent cases (without BACs) on how to define
"intoxication" in NYS DWI are People
v. Cruz, 48 NY 2nd 419, and People v.
Bradford, 408 NYS 2nd 1013. Both these show how the Courts apply this legal
standard "to and in" the real world of mental and physical human behavior.
If the prosecution is without a BAC (blood alcohol
concentration) from blood or breath a NYS DWI will need to be proved strictly by
the driver's behavior.
Three key elements have resulted in NOT GUILTY convictions
in New York DWI Refusal Cases:
1. The motorists were reckless
in their driving that either caused an accident or had the substantial
likelihood to
AND
2. The motorists lacked
physical coordination (unable to balance, unable to walk steadily)
AND
3. The motorists displayed
a lack of a rational mental state (could not answer questions intelligibly)
I believe that demonstrating a driver’s rational mental
state is a critical factor in disproving intoxicated operation. This mental
state defense is an opening for a plea to the reduced (non-criminal) impaired
driving (VTL 1192 (1) DWAI Driving While Ability Impaired offense.
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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