It's Amateur Night!: 34 Arrested For DWI In Nassau And Suffolk Counties

I have all kinds of trouble with DWI laws. For starters they are based on bad science. Secondly they are arbitrary. I have driven behind someone who blew a .24 on a breath test and then drove for an hour better than the so called sober people in Nassau and Queens County. I have a problem with any numeric crime based on faulty science determining if someone ought to be arrested without that person doing something wrong. (We are talking about checkpoint arrests where the only "crime" is the the breath test reading). I get tired of the "bleed em and plead em" mentality of much of the bar and the entire DA's office. I hate how DWIs have destroyed the Fourth Amendment and the laws of Evidence. Mostly I hate how it destroys people who are convicted of the crime. It is what I call "stupid crime" as there is absolutely no upside to it.

Nevertheless, it is New Year Eve. Every cop on Long Island is looking to make DWI arrests. By now you ought to know that if you are one hundred and fifty (150lbs.) pounds, you are impaired by alcohol after 2.5 drinks in 2 hours. Please tell me how you get arrested for DWI? You really have to be clueless.

In a number of these cases, people were killed or badly maimed. How hard is this really? If you are drinking, Don't Drive!! Find a designated driver, take a cab or a limo. Take Mass Transit. Stay HOME!!

Amateurs. Really.

Hattip: Newsday (subscription may be required)

Free Ride Home For HS Students IN SYOSSET-WOODBURY, PLAINVIEW/OLD BETHPAGE , or JERICHO SCHOOLS Stranded on New Year's Eve: NO DWI'S TONIGHT!!

This New Year's Eve I am offering any High School Student at any High School located in the Plainview/Old Bethpage, Syosset-Woodbury or Jericho-Brookville School Districts, a free ride home from a party, bar or Train Station (Hicksville or Syosset stations) in those school district boundries, if:

1. You are too drunk to drive home

of

2. You do not have a safe ride home because the person driving You is intoxicated.

For a driver under 21 on Long Island that means if you had more than 1 drink and you are 100lbs or 2 drinks and are 150lbs or 3 drinks and 200lbs YOU ARE NOT SAFE TO DRIVE!!!

All you have to do is call 516-741-3400 and request a ride. The service will be provided between 11PM tonight December 31 2008 and 7AM January 1st 2009.

Doesn't matter if the intoxication is by drugs or alcohol. NO QUESTIONS ASKED. I will even arrange to have your car brought to your home the next day!!

That is right, if you have no way to safely and legally get home I will either pick you up, or have a car service pick you up, on my tab, and Drive You HOME.

No one needs to be arrested tonight. No High School parent needs to call me in the middle of the night to tell me that his or her son or daughter is lying in a hospital, or sitting in a cell because of a driving while intoxicated issue in the Syosset-Woodbury, Plainview or Jericho-Brookville school districts on Long Island. All rides are courtesy of:

The Law Offices of Anthony J. Colleluori & Associates, PLLC
180 Froehlich Farm Blvd.
Woodbury, NY 11797

Nassau DWI Arrests Spike on Thanksgiving Eve: Some Thoughts From That Lawyer Dude

Nassau County Police announced that their DWI arrests spiked by 300 percent. Nassau Police usually average about 10 arrests a night however on November 25th police arrested 35 people in Nassau County alone. Suffolk County numbers are not available.

Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.

Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.

What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.

If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:

1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.

2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.

3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.

4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.

For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.

5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.

6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.

7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.

IF you want to increase your knowledge of your BAC log on here

8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)

9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.

You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.

Interesting Stories From the Blogosphere week of November 11, 2008 Part I of IV. Technology and You (and Pres-elect Obama too!)

I read a lot of blogs and online newspapers every week. I love the Internet and find it a source of information and relaxation. I get most of my ideas for my blog from other writers as I do not often have the time to run the stories down myself.
Sometimes I come across posts that would make a nice mini post on my blog, but I am not willing to write a whole post about them. I'd rather comment and link. I save them up for the week and put them into my around the Blogosphere posts. Still, I like to have themes. So for the first time, I have broken them up so you can look at the stuff that interests you most and ignore the rest (at your peril).


1. Obama the YouTube President"

This first post then for the Week beginning on November 11, 2008 deals with our President-elect Barack Obama. He is not only our first part Afro-American President, but also very tech savvy. Presidents since FDR have been doing regular radio addresses. Most of us only get snippets from new shows because we can 1. never find the actual address when it is played and 2. What's a radio??.

Obama however has solved the problem by doing a weekly podcast.

The Blogosphere is agog with the use of the Internet by President Elect Obama. In its latest form. The President-Elect has started a weekly podcast. Here is an article concerning the podcast from WaPo and here is the actual podcast . Should be a very interesting Presidency for so many reasons.
HatTip:Laughingsquid.com

2. Speaking of Tech, Here is what the Internet has for the rest of us.

A. Since almost everyone who reads this blog voluntarily seems to have a better read blog than I do, I thought I'd help you all out. Here are 16 Essential PC Apps for Bloggers. No this is not about political correctness.
Hattip: ProBlogger

B.If you are on Twitter.com (and you probably ought to be) you will want to have friends follow you. Here are 10 suggestions on how to get a bigger following of "twitterati" from Alltop's Guy Kawasaki.

C. RSS is a useful tool for keeping track of things important to you. I use it for example to put all the blogs I want to track in one place. You just click the Rss box on top of the blog and add it to your reader (I use Google Reader) and viole` you have it all in one place. Here are 29 more uses for RSS.
Hattip: LouisGray.com Where you go if you want to stay ahead of the crowd, or the crowded Internet.

D. My final tidbit for this segment The Boys over at Gizmodo.com tell you about an I-Phone application that helps you figure out if you are too drunk to drive. I would tell you that it is an inacurrate calculation or rough calculation at best and if you are anywhere near danger (that is to say .o3 or less from an arrest situation) don't take the test. Yeah you will lose your license immediately for one year, but you can beat the case and save a small fortune. Not to mention how hard it is to get a job with a criminal conviction on your record...

Now onto the Legal part of our trip. Go to my next post.

Wow What a Summer, (And It Is Not Even Half Over)

When I last left you, I was sad that Debra Jean Paltrow decided to end her life. I think it was a permanent solution to what was a temporary problem. I also thought her prosecution (not to mention her conviction) was a monumental waste of taxpayers time and money not to mention personnel resources.

So then what happened?? All hell broke loose That is what happened.

In chronological order:
1. I became involved to represent the driver in this very sad case. (The Griffin Case)
2. I was a judge at the National Catholic Forensic League Grand Championships in The Fox Cities area of Wisconsin.
3. The Nassau County DWI Wall of Shame went up.
4. I started representing Rabbi Morris Talansky, who is a really nice guy getting slammed unfairly in the foreign press (and by the NY Tabloids too but what else is new.)
5. I started the Murder Trial of Ronald "Shorts" Rodriguez.
6. The District Attorney of Nassau decided that I might beat her in the aforementioned Griffin case so she began "Poisoning the Jury Pool" with outrageous remarks that show her lack of maturity and her lack of fitness for the office she holds.
7. A nut job in the gallery of the courtroom during the Rodriguez trial, jumped up and attacked Shorty and me (he was aiming for Shorty, I was just collateral damage) which caused a 2.5 day break in the trial, and pointed out to all of us in Nassau County that we need to take more precautions to safeguard our trial courts (Hint Hint, it is time to build a new and safer annex to the county court.)
8. After one of the toughest trials I have ever been involved with, Ronald "Shorts" Rodriguez was ACQUITTED of Murder in the second degree (Intentional Murder) Manslaughter in the 1st degree (Intentionally causing injury that results in death through the use of Deadly Physical Force) and was convicted of the non-violent crime of Manslaughter in the 2d degree (recklessly causing the death of another) and possession of a weapon 3rd degree. (Sentencing is scheduled for September.)

9. In addition, the economy tanked, you can no longer afford to fill a gas tank without a loan, and it is Obama v. McCain but look out for BARR to play a spoiler unless McCain starts to comeback to his roots.

AND

10. I was cited as a blogging lawyer in an article at Get LEGAL.COM

11. I am building a new website (the old one is down and I have a static place holder there right now but wait until) NEXT month.



I will be posting on these topics and a few other things too over the next few weeks. Sorry for being away too long, but I just can't seem to write when I am in trial.

Corrections: Spell checked and links added.

Mothers Against Drunk Drivers New Tactic : First Thing We Do Is Gag All The Lawyers

Our friends at DUIBLOG alert us to a new idea being tried out in Tennessee. A State Senator (a former nurse) has introduced an amendment to a Homeland Security bill to forbid Criminal Defense Lawyers from advertising their expertise in handling DWI cases. Here is the AP Article:

Senate measure would ban lawyers from DUI advertising
By ERIK SCHELZIG • Associated Press Writer • April 22, 2008

Defense attorneys would be banned from advertising their expertise with drunken driving cases under a bill advancing in the Senate.
Sen. Rosalind Kurita, a Clarksville Democrat, successfully added the provision to a bill that would create an online registry of repeat DUI offenders in Tennessee.
Kurita says officials have a hard enough time convicting drunken drivers without lawyers advertising their expertise in the field and offering discounts to DUI defendants.
Senate Democratic Leader Jim Kyle, a Memphis attorney, argued that Kurita's proposal would violate commercial free speech rights.
Kyle says that as long as lawyers are meeting ethical standards set by the state bar association they should be allowed to advertise their legal qualifications.

Interestingly Kurita is not beloved by her fellow Democrats because she jumped ship and voted a Republican into the Lt. Governors seat after promising to support a Democrat last year. She was rewarded with the Presidency Pro Tem of the legislature.

Hence it came as no surprise that the Democrats launched a primary Campaign against her.

Guess what her Primary Opponent does for a living...
Right! He handles Criminal Defense cases including DWI.

Given that this stands no chance of ever remaining law (Lawyers have a right to advertise Bates v. State Bar of Arizona 97 S.Ct. 2691 [1977]) this becomes just one more waste of taxpayers money. (On the other hand, Nassau County (NY) District Attorney Kathleen Rice would have a blast with this kind of legislation.

What is most worrisome however is the reason she gave for supporting the ban.

They have a hard enough time convicting without lawyers advertising their expertise and giving discounts to suspected drunk drivers. Imagine how hard it would be if they had to use real science and not the junk science that backs up today's breath testing equipment?

Who advises this Senator anyway?

Drinking And Driving Does Not Equal Driving While Intoxicated

I have spent the better part of this holiday season trying to disabuse potential clients of the idea that because they had a drink and drove, didn't mean that the prosecutors could prove they were drunk at the time they were arrested. The anti-alcohol lobby has done an excellent job of telling America, wrongly of course that if you drink and drive, you're guilty of Driving While Intoxicated.

If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.

To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.

Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.

Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.

Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.

With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?

The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.