Why I Defend DWI
Why do I defend DWI's? The answer to this question lies squarely in the nature of the offense. A DWI charge based upon the appearance of the motorist is generally brought with a separate charge based solely upon the motorist's breath or blood alcohol content. In the first instance, it is the appearance of the motorist that counts. In other words, did he or she appear drunk? The second, however, is far more problematic. Based solely upon the results of a chemical test, it is to my knowledge the only crime that can be proven entirely by the results of a scientific test.
Some individuals who are not intoxicated may naturally tend to exhibit what appear to be signs of intoxication, such as bloodshot eyes, swaying gait and mumbled speech. Coupled with the strong odor which even one alcoholic beverage may produce, the possibility runs strong that, in the absence of a chemical test, a sober motorist could be convicted.
If, on the other hand, a motorist decides to submit to a chemical test, conviction along with the social and financial problems it entails, frequently depends upon the accuracy of a breath test.
Is chemical testing always accurate? Statistically, no. The problem lies in that fact that each and every test depends upon a presumed relationship between breath and blood alcohol. Dependent upon a lung-blood ratio reached by the National Safety Council in 1952, all breath testing ignores the fact that the ratio varies both with time and the individual tested. For instance, if the motorist is tested before the alcohol consumed has been completely distributed throughout the body, it is possible for the results of a breath test to be three times higher than his or her actual blood alcohol content. Further, there exists the effect of other chemicals which are commonly found on the breath of human beings. The development of modern breath testing equipment is rife with efforts of designers to minimize the impact of mouth alcohol, acetone, methane and others.
Not confined solely to science, breath test difficulties can be found in the manner in which breath test programs are administered. In 1991, after more than three years of litigation, I was able to prove to the satisfaction of New York's highest courts that a Pennsylvania firm which was manufacturing breath test chemicals was engaged in fraudulently certifying lot verification and quality control.
Nor has fraud been confined to breath test chemicals. A study from five precincts in Massachusetts and California published in 1989 conclusively showed breath test operators to be setting Breathalyzer® test results falsely high. Closer to home, last spring, a New York State Federal Court overturned the conviction of an individual convicted of DWI Murder when it found that two New York State Troopers had falsified reports, placed pieces of the defendant's car at the scene of an accident and attached strands of the victim's hair to the defendant's automobile while the vehicle was impounded.
Finally, there exists the human factor. Because of the nature of alcoholism, an alcoholic who is convicted of DWI is condemned to continually repeat that offense irrespective of the number of times that he or she is convicted. A sad fact is that much needed treatment is unavailable following conviction either as a result of jail or the lack of insurance coverage. Moreover, when the defendant is a predicate offender, it may very well be that the best interests of society dictate that incarceration not be imposed. Presently, an individual sentenced to State prison for felony DWI will serve approximately two years. In the absence of treatment, all this sentence will do is insure that the motorist loses his or her job, loses his or her family and loses any meaningful efforts toward rehabilitation.
Thus, as unpalatable as it may seem to some, it is not only proper that the DWI defendant be afforded a vigorous defense, but such is a Constitutional imperative if the interests of justice, society, and the defendant are to be adequately preserved.
— Reprinted from The Rochester Democrat & Chronicle, July 8, 1997