| They say that Ithaca, NY is "ten square miles | | | | upon a jury, and a bearing upon your case. |
| surrounded by reality," and I would imagine life would | | | | Incriminating statements made after receiving your |
| be easier if we could only all agree on what reality is. | | | | Miranda (right to remain silent, etc.)warnings, such as: |
| It is often a challenging task for lawyers to clearly | | | | "I should not have been driving tonight" or "Yeah, I |
| communicate the reality of their pending criminal | | | | had more beer than I can remember" or "I am 100% |
| charges. Explaining a legal situation by placing it in | | | | guilty" or "I made a stupid decision" must to be |
| context, and in terms they can understand can be | | | | considered by your attorney for a fair case |
| difficult. In the practice of DWI defense a discussion | | | | evaluation. Admissions of guilt after being warned of |
| of the differences between reality, fantasy, and | | | | your right to remain silent are powerful prosecution |
| actuality are an integral and necessary part of the | | | | evidence. DWI cases always have strong or weak |
| case evaluation process. | | | | defenses based upon and within the facts. |
| I always like to tell my clients, and potential clients | | | | Admissions of guilt whether verbal or written are |
| that I deal in reality, and not fantasy. If they are | | | | likely damaging to your legal innocence. |
| looking for pipe dreams, long shots, and Disney | | | | The "Fantasy" Question: Are my expectations |
| happily ever after then they have the wrong guy. I | | | | concerning my case reasonable and fact based? |
| am not optimistic or pessimistic, I AM REALISTIC. | | | | The Actual is a viewpoint that seeks all the |
| Growing up on the streets of Brooklyn, NY gave me | | | | information, both the good facts and the bad facts. |
| a real education. My father was a prison guard. He | | | | It is a view that is balanced, stable, and non charged. |
| was always "on" so to speak. The man was very | | | | It is an awareness that two sides always exist. I am |
| wise about understanding people. He was not the | | | | a fan of Ralph Waldo Emerson. In 1841, he wrote an |
| trusting type, so what I did not get on the street, I | | | | essay on the Law of Compensation. The piece is a |
| most certainly learned from him. | | | | brilliant and thoughtful look at the two sides of every |
| Reality always comes from a person's specific, | | | | event and thing. I believe that most DWI cases have |
| personal, and unique vantage point. This viewpoint is | | | | an actuality base of both good and bad facts. |
| likely grounded in a person's set of mental filters and | | | | Attorneys usually have to seek out (discover) the |
| life experiences. Jurors from various backgrounds | | | | good facts that can help our cases. The good facts |
| who sit on the same case, side by side in the same | | | | may be that the field sobriety tests were |
| box, will likely focus on different facts. All that they | | | | administered unfairly. Maybe your failure of certain |
| choose to hear and see are then interpreted through | | | | tests was based on the walking of an invisible line, |
| their own belief systems. The unanimous conclusion | | | | doing the tests in high heel shoes, or the subjective |
| they form over a person's legal guilt or legal | | | | grading scale that was used. Should missing only two |
| innocence hinges on their agreement as a cohesive | | | | letters of the alphabet count as a failure of the test? |
| group over what the facts mean to them. A not | | | | The bad facts are easy to find because they are |
| guilty verdict in a DWI case does not mean innocent, | | | | commonly written about within the police report and |
| NOT GUILTY merely means NOT PROVEN. | | | | investigation notes. |
| It is often the case that agreement between the | | | | The evaluation of the strengths and weaknesses of |
| jurors over "whether a person was driving while | | | | any DWI case hinges upon the specific patterns of |
| intoxicated (DWI) or driving while their ability was | | | | facts and their potential interpretation by a Jury. |
| impaired (DWAI)" may have less to do with the truth | | | | The old saying, "if it looks like a duck, walks like a |
| of the evidence presented and have more to do | | | | duck, and sounds like a duck it most probably is a |
| with how they see and interpret the world. | | | | duck" holds true in most jurors minds. Overall, how |
| The prosecutor and the defense attorney will both | | | | did you move, talk, and act? |
| present the same set of facts but from different | | | | Alcohol is known to affect mental function before |
| points of view, and with different conclusions. Which | | | | physical function. On the night of your arrest how |
| story (focus), and which conclusion regarding the | | | | was your mental behavior pattern? Were you able |
| DWI charge the jurors believe will partially rest on | | | | to: understand directions, follow instructions |
| their upbringing and unique set of life influencers. That | | | | appropriately and in a timely manner, formulate |
| is why the jury selection or de-selection process | | | | intelligent responses to questions, and recall |
| called "Voir Dire" (literally to speak truth) is crucial to | | | | information that was requested? For example, there |
| discovering possible juror prejudice or bias. Voir dire is | | | | are five parts to the Miranda warning. Were you able |
| when both Judge and attorneys can ask the jurors | | | | to communicate your understanding of all five parts? |
| questions to bring out issues of partiality or | | | | Were you able to produce the correct documents in |
| unfairness amongst the jury pool prior to them being | | | | the order requested they were requested? |
| picked to sit for a trial. | | | | How was your physical behavior pattern? On a scale |
| In a DWI trial, we certainly want jurors who can be | | | | of 1-10, how was your performance on the field side |
| fair and impartial. If they or a family member was | | | | tests? These balance and coordination exercises |
| hurt by a drunk driver they will likely bring a highly | | | | have many parts. Did you fall down? Were you able |
| charged prejudice into the Courtroom. If they or a | | | | to walk normally? Were you able to stop and start |
| family member works or worked in law enforcement | | | | when directed? All of your physical movements |
| this will likely color their opinion in favor of the police | | | | (demonstrating function) during the entire police |
| officer and breath test operator's degree of | | | | "encounter" should be examined and evaluated. |
| credibility and subsequent testimony. | | | | If you were merely pulled over (stopped) for an |
| The "Reality" Question: Can the jurors put | | | | equipment violation or a dated inspection sticker, then |
| themselves in your shoes? | | | | it is likely that your driving pattern was normal. If you |
| If you are under the age of 21, and were out on a | | | | were stopped for speeding, it could be argued that it |
| night of illegal drinking (you must be 21 to legally drink | | | | generally takes more coordination, concentration, and |
| in New York State) and you had a grinder on the | | | | focused attention to keep a car in line with the |
| front seat (a device used to get rid of pot seeds) | | | | roadways and traffic at higher speeds. |
| then a jury of people from the ages of 40 to 70 | | | | There are 24 commonly observed driving patterns |
| who do not smoke may not be in your favor. | | | | that signal nighttime impaired motorists. These come |
| In contrast, if you were out celebrating your birthday | | | | from the National Highway Traffic Safety |
| with family and friends, and you were over 21 at the | | | | Administration booklet- "The Visual Detection of DWI |
| time, the scales will probably tip in your favor. This is | | | | Motorists" (DOT HS 808 677). |
| because many people will likely relate to your legal | | | | These are a few of the bad patterns of driving |
| and normal, social celebration of that special occasion | | | | behavior: weaving, straddling lanes, swerving, turning |
| with alcohol. | | | | wide radius, drifting, almost hitting cars or railings, |
| Jury empathy is powerful. Your unique set of facts | | | | stopping abruptly, accelerating rapidly, decelerating |
| on the night of your stop and subsequent arrest | | | | rapidly, very slow speed, slow response to traffic |
| speak volumes to people who can see themselves, | | | | signals and/or the police officer's signals. |
| and their own behavior in your situation. | | | | Now keep in mind, you can be a bad driver, a tired |
| The main purpose of an attorney review and | | | | driver, or a distracted driver and display any of these |
| evaluation of your criminal case is to clearly, | | | | erratic patterns without any alcohol in your system. |
| completely, and objectively dissect the evidence | | | | Was there another non alcohol related reason for |
| against you. I cringe when attorneys tell me it only | | | | your poor driving behavior? Your lack of sleep, being |
| takes five minutes to read a police report. | | | | overly worked, having a cold or an allergy can all |
| I believe that Only after an attorney has complete | | | | contribute to bad driving behavior. Raising evidence of |
| discovery (police reports, accident reports, | | | | other non alcohol related reasons for behavior that |
| investigative notes, and records), and your version of | | | | could be due to alcohol is called evidence of |
| the event, can he or she give you a fair and | | | | reasonable doubt. |
| balanced legal opinion. The law is based in degrees of | | | | The Actuality Questions: What were your behavior |
| culpability (fault), and likelihoods (probabilities). Is it | | | | pattern and driving pattern on the night of the |
| likely based upon all the facts, the charges, and the | | | | arrest? |
| totality of the situation that the government can | | | | Were they consistent with my reported BAC (Blood |
| prove all the criminal charges beyond a reasonable | | | | Alcohol Concentration)? |
| doubt? You can not sweep bad evidence under a | | | | This is the juncture where true case evaluation |
| rug. | | | | comes together. We must put everything (all the |
| Fantasies focus on false facts and/or negation of | | | | facts) into the context of juror perspective. Taking |
| true facts. For example, time lines are true facts. | | | | all the mental function facts, physical function facts, |
| Creating a DWI chronology is powerful defense | | | | and driving pattern facts together are they a |
| strategy: The time of the stop, the time the field | | | | consistent and believable match to your Breath Test |
| tests began, the time the field tests ended, the time | | | | machine result? DWI defense lawyers like to call this |
| of the arrest, the time of the breath test. How | | | | the "disconnect theory." This is because if the BAC |
| much time was given to each event? Was that a fair | | | | does not match up with all the other evidence, it |
| amount of time to instruct, demonstrate, and | | | | stands alone, and it is disconnected as a piece of |
| evaluate? Was it a credible (believeable) amount of | | | | evidence. It can be viewed by the jury as invalid and |
| time? | | | | inaccurate. |
| In the world of fantasy, facts that have no weight | | | | The jurors have an important trial decision to make. |
| or bearing or relevance upon a legal situation are | | | | In these types of cases the jury must decide |
| talked about, repeated, and emphasized by a client. A | | | | whether to hold you guilty by the breath machine's |
| hallmark of the fantasy is having unreasonable | | | | number alone (that is the DWI 1192 (2), "per se" |
| expectations based upon the totality of the situation. | | | | >.08 BAC charge), or to value their own better |
| The following are a few examples of fantasy based | | | | judgment and common sense by looking at all the |
| thought patterns: | | | | facts of your case. |
| Being a good student, from a respected family, with | | | | I would like to believe that in these situations people |
| excellent character references may have bearing | | | | are not swayed by false science. I would hope that |
| upon a Court's sentencing and punishment but will | | | | they trust themselves enough to follow the Judge's |
| have little bearing upon the prosecutor's decision to | | | | instructions on the criminal legal standard of beyond a |
| pursue or downgrade the criminal charges, ie. offer a | | | | reasonable doubt with all proof (evidence) brought |
| plea. | | | | before them. |
| A Police officer who observed and reports in detail a | | | | So there you have it, if the jurors can empathize |
| driving pattern over the course of several miles with | | | | with you, if you have a safe and proper (non erratic) |
| long periods of erratic and dangerous maneuvers can | | | | ndriving pattern or a non alcohol related reason for an |
| not be overlooked, it can not be negated, and it | | | | erratic pattern, and if facts can show that you |
| must be addressed at trial. | | | | possessed normal (coherent) mental function on the |
| Doing 94 MPH in a 55MPH zone while having a bottle | | | | night of your arrest that marks the beginning of a |
| of Bourbon, and a pipe containing marijuana on your | | | | great DWI defense in spite of your high BAC |
| front seat will generally have an negative impact | | | | number. |