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| The Magic Seven from casino.net |
1. There is usually only one “criminal” misdemeanor charge.
It is New York State VTL 1192 (3), also called “common law” DWI.
2. The government, the prosecutor, aka the DA has to use
opinion testimony to prove you were in fact intoxicated, not merely impaired.
3. Intoxication and impairment are really a matter of
degree, and highly subjective.
4. The government cannot prove their case against you by
any forensic (blood and/or breath) scientific evidence. They do not have a BAC
(blood alcohol concentration) number to wave about and prove your alleged
consumption. The jury and/or judge does not receive into evidence official and certified
blood alcohol concentration documents with numbers and data to study and ponder
over.
5. The New York State jury instruction for VTL 1192 (3) is
weighted in your favor.
The standard New York Jury Instruction for “common law” DWI
Intoxication VTL 1192 (3) is:
A person is in an INTOXICATED condition when such person
has consumed alcohol to the extent that he or she
is incapable, to
a substantial
extent, of employing the physical and
mental abilities
which he or she is expected to possess in order to
operate a
vehicle as a reasonable and
prudent driver.(emphasis added)
NYS Jury Instruction
For the misdemeanor common law intoxication
charge the government must prove the following four things:
1. Incapacity (unable)
2. to a substantial extent
3. both mentally and physically
4. to operate (drive) a car as a
reasonable and prudent driver
These legal hurdles are neither
easy or simple to surmount with merely police opinion evidence.
6. To prove or disprove this
charge of Intoxication the jury and/or judge can look at the following based
upon the New York State jury instructions:
To determine whether the
defendant was intoxicated you may consider all
the surrounding facts and circumstances, including, for example:
·
the defendant’s
physical condition
·
appearance
·
balance
·
coordination
·
manner of speech
·
the presence or
absence of an odor of alcohol
·
the manner in which
the defendant operated the motor vehicle
·
opinion testimony
regarding the defendant’s sobriety
·
the circumstances of
any accident
7. You can see the potential
strengths and weaknesses of your DWI refusal case before the trial through the
criminal court suppression hearing, and the DMV license refusal hearing. Your
defense attorney can see what the
law enforcement officers will testify to and about at these hearings. Your
defense attorney will also see how
the officers testify. This testimony may only be partly based upon discovery
documents ie. police reports, so hearings will form a strong foundation to
anchor your defense.
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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