Imagine it: You are driving home from a small party at a friend’s house, when suddenly behind you appear the flashing lights of a police vehicle. You pull over to the side of the road. Following a confrontation with law enforcement, you are questioned about how much you had to drink. While most people feel uneasy in such situations, it helps to remember that law enforcement officers must follow certain laws during these encounters.

For example, law enforcement officers must have probable cause for a traffic infection to perform such a stop. While it helps to understand what probable cause means, it helps to understand some other critical details about driving while intoxicated (DWI) stops in New York. It also helps not hesitate to retain an experienced attorney if you are charged with driving while intoxicated or any other associated charge in New York State.


Assumptions During a Driving While Intoxicated Stop

Many people have false assumptions about the nature of DWI stops in New York. Consider the following assumptions and the associated realities:


  • Driving drunk is no big deal. Statistics compiled by the National Highway Traffic Safety Administration reveal that someone is injured in a drunk driving accident every two minutes. Consequently, New York State takes driving while intoxicated seriously. Charges of intoxicated driving can result in imprisonment, large fines, and other penalties.
  • You can drive fine while drunk. Drinking does various things to a person’s motor senses and body functions, resulting in erratic driving and swerving between lanes. This can, in turn, serve as signs of intoxication for law enforcement to perform a stop.
  • You do not smell like alcohol. Even if you do not think it is noticeable, many DWI investigations begin with law enforcement smelling alcohol on a person’s breath or in a person’s vehicle.
  • You have the right to refuse a breathalyzer or chemical test. While you can refuse to participate in these tests, understand that refusing to participate in testing will result in the automatic one-year revocation of your driver’s license. It is sometimes better to participate in testing and later defend law enforcement’s results.
  • Many people accused of DWI are guilty. One of the most widespread and harmful myths, a large number of DWI cases occur because law enforcement ends up relying on inaccurate information. There are countless ways to refute evidence from breathalyzers. Still, only the most experienced DWI attorneys understand how these machines work and create strong legal strategies to respond to these charges. Not to mention, law enforcement often attempts to bolster these test results with “opinion” evidence about a motorist’s behavior. This evidence is often not conclusive and vulnerable to many different interpretations. Bloodshot eyes do not always indicate intoxication and can also imply allergies or fatigue. Similarly, slurred speech is not always the result of drinking. A skilled DWI attorney can review the opposing side’s evidence and expose every weakness.
  • There is only one alcohol-related driving offense. In reality, a person can be charged with a countless number of alcohol-related violations in New York State. These offenses include driving while intoxicated, aggravated driving while intoxicated, driving. At the same time, the ability is impaired by alcohol, driving. In contrast, the ability is impaired by a single drug other than alcohol, driving while the ability is impaired with a combined influence of drugs or alcohol, and chemical test refusal. Additionally, drivers who are less than 21 years of age who drive with anything above a .02 blood alcohol content level can be charged with violating the zero-tolerance law.

Defenses to DWI Charges

DWI charges in New York result in some serious penalties if a person is convicted of these charges. Fortunately, various defenses can be raised in response to DWI charges, which include:


  • Bad driving. Many DWI arrests begin with a motorist’s poor driving, like swerving between lanes or running red lights. What law enforcement might think is grounds for a DWI arrest might be just bad driving.
  • Field sobriety tests are inaccurate. Law enforcement often relies on field sobriety tests to assess whether a motorist is intoxicated. In reality, many sober motorists fail these tests. Many experienced DWI lawyers have encountered countless cases where these tests were inaccurate.
  • Improperly stored blood. One of the most common ways to attack driving while intoxicated charges is to argue that blood alcohol content results are inaccurate. It is common to argue that blood was not properly stored and that the sugar contained within the blood later turned to alcohol.
  • Miranda violations. Law enforcement often attempts to obtain as many statements from motorists as possible to show their intoxication later. It is never a good idea to speak to law enforcement if you have been pulled over for suspicion of driving while intoxicated. Still, if law enforcement violates your Miranda rights, this can result in the suppression of statements.
  • Mistaken symptoms. Law enforcement sometimes mistakes physical symptoms for intoxication when in actuality, these signs result from another condition. Some symptoms commonly mistaken for intoxication include confusion, difficulty balancing, impaired memory, slurred speech, and an unsteady gait.
  • Mouth alcohol created high blood alcohol content. While breathalyzer machines are supposed only to register alcohol from a person’s lungs, sometimes skewed results occur because a person used mouthwash before testing.
  • Improper equipment. The machine to test blood alcohol content must be properly calibrated and sufficiently maintained. If law enforcement fails to keep equipment in proper order, the results can be suppressed.


Even being charged once with driving while intoxicated in New York State can result in serious penalties like imprisonment, fines, and a damaged social reputation. As a result, you should not hesitate to retain the assistance of an experienced New York DWI lawyer.


Contact a Knowledgeable DWI Attorney

The aftermath of being charged with a DWI can result in serious consequences. If you need the assistance of an experienced attorney to respond to these charges, contact Nave Law Firm today by calling 855-349-NAVE (6283).


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Bill Cosby Released From Prison: But Why?

Bill Cosby has been released from prison. He walks among us again as a free man.


No, it’s not because he already served his sentence. It’s not because he was granted parole from his conviction, either. Nor did Pennsylvania’s Governor grant a pardon or issue clemency. Instead, the Pennsylvania Supreme Court overturned Cosby’s conviction on appeal.


Cosby had reached an agreement with a former prosecutor, Bruce Castor, under which Cosby was not to be criminally charged for the incident which eventually resulted in his 2018 conviction. Castor has gained more recent notoriety as being a member of former President Donald Trump’s legal team during his second impeachment trial. In short, though, Castor, while chief prosecutor for Montgomery County, Pennsylvania, had reached a deal with Cosby under which Castor agreed to grant Cosby immunity from all prosecution related to the incident if Cosby agreed to testify at a civil trial initiated by his accuser, which was to take place in 2005.


That accuser was Andrea Constand. Constand accused Cosby of drugging and molesting her at his estate in 2004. At the time, Constand was a Temple University employee, a former professional basketball player who had risen to be the head of basketball operations at the university. Castor chose to grant Cosby immunity from prosecution because he felt prosecutors would have difficulty confirming the forensic evidence from the case, without Cosby’s prior admission to the crimes, at trial.


Instead, by granting Cosby immunity from prosecution, Castor sought to force Cosby’s hand into testifying at Constand’s civil trial against him. As the Pennsylvania Supreme Court wrote in its decision, “Seeking ‘some measure of justice’ for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.” Cosby relied on this immunity while testifying at Constand’s civil trial. As the Pennsylvania Supreme Court noted, he “proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.”


Yet, years later, a new prosecutor was elected in Montgomery County. Feeling unbound by his predecessor’s immunity agreement with Cosby, new District Attorney Kevin Steele brought charges against Cosby related to the 2004 incident with Constand.


At trial on those charges, Steele and his office used Cosby’s incriminating testimony at Constand’s 2005 civil trial against him. In fact, his testimony became a cornerstone of the People’s case. Ultimately, Cosby was convicted on three counts of aggravated indecent assault in April 2018. He was sentenced to a term of three to ten years in prison.


On appeal, however, the Pennsylvania Supreme Court found an issue with the revocation of Cosby’s immunity agreement simply because a new prosecutor had taken office. As the Court wrote, “When an unconditional charging decision is made publicly, and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity…A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.”


The Court concluded, then, that “For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.”


Cosby was released from prison yesterday, shortly after the Court’s decision was announced. A spokesman for Cosby told reporters, upon his release, that “This is what we have been fighting for and this is justice and justice for Black America.” Sentiments were not shared by those in the Montgomery County District Attorney’s Office. Mr. Steele, in a statement released Wednesday, noted “Cosby was found guilty by a jury and now goes free on a procedural issue that is irrelevant to the facts of the crime…My hope is that this decision will not dampen the reporting of sexual assaults by victims. Prosecutors in my office will continue to follow the evidence wherever and to whomever it leads. We still believe that no one is above the law – including those who are rich, famous, and powerful.”


Prosecutors could still, should they so choose, seek to appeal the Pennsylvania Supreme Court’s decision. Such an appeal would be to the U.S. Supreme Court, and would likely highlight the issue of due process and argue that retrial of Cosby could be granted should the prosecution refrain from including his 2005 civil trial testimony. The U.S. Supreme Court may elect against hearing the case, however, given its highly publicized nature and its near singular focus on procedural matters.


Yesterday’s decision also gave hope to others entangled in the #MeToo movement’s eye-opening allegations of misconduct against prominent men. Harvey Weinstein’s legal team issued a statement following the release of the Court’s decision, highlighting the Court’s ability to follow the facts and the law under the pressure of a case that garnered much media attention. In sum, the Weinstein legal team noted, “This decision also reaffirms our confidence that the Appellate Division in New York will reach the similarly correct decision in Harvey Weinstein’s appeal, considering the abundance of issues that cry out for a reversal.” Weinstein had previously been sentenced to serve 23 years on rape and sexual assault charges.


The Pennsylvania Supreme Court’s decision overturning Cosby’s conviction can be read here:

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Nave Law wins suit against City of Albany to protect Reverend’s civil rights.


As part of Nave Law Firm’s efforts to give back to the communities we practice in, our own Derek Andrews took action after reading a Times Union article about a local woman’s plight against a local government who stonewalled her efforts to obtain body camera recordings of an incident that involved her.


In 2019, uniformed members of the Albany Police Department wearing body cameras forcibly removed Reverend Cheryl Hawkins, a street-reach minister in the New York Capital District, from a public park as she preached and sang Christian hymns, for which she had received a special event permit from the City of Albany. That removal violated her constitutionally-guaranteed rights to free expression. As part of a lawsuit, her civil rights attorney requested those body camera recordings from the city through New York’s Freedom of Information Law but was rebuffed, having been told that they were protected and confidential because of Civil Rights Law Section 50-a.


Mr. Andrews helped both Ms. Hawkins and her civil rights attorney by filing an Article 78 special proceeding, a type of lawsuit, against the City of Albany and the Albany Police Department, claiming that they violated Ms. Hawkins’ right to free access to body camera recordings of that incident.


Although the city produced those recordings before the conclusion of the lawsuit, Judge David Weinstein of the Albany County Supreme Court agreed with Mr. Andrews’ arguments when he issued a decision at the end of 2020 stating that Ms. Hawkins had substantially prevailed and that the city was unreasonable in originally denying her access. That last part meant that the city Times Union Article, which resulted in a five-figure settlement. Ms. Hawkins will now continue her lawsuit against Albany for violating her civil rights.


When asked for comment by Reverand Hawkins, she responded:

“Mr. Andrews saw the Times-Union Newspaper Front Page Huge Article (February 17, 2020). He then contacted my attorney and wanted to see how he could help.  He felt that I was facing an injustice.  I was already paying another lawyer big money to represent me, and I could not afford a second law firm.  Derek then spoke with the leadership team with Nave Law Firm, and the team decided to take the case at no cost to me.  

I was so grateful that he believed in me enough to advocate for me and cared enough to help me at no cost.

The best part is that he WON THE CASE; he even won the city’s and the cop’s appeal filed in Albany County after winning the case.”


Nave Law Firm is grateful for the opportunity to have assisted Ms. Hawkins in her pursuit of justice.



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Decriminalizing Possession of Hard Drugs

Oregon seems to be leading the way in the war . . . on the war on drugs while New York falls further behind. In a more sizable margin than either Biden or Trump would secure in this election, nearly 59% of citizens in Oregon voted to decriminalize possession of small amounts of hard drugs like heroin and cocaine.

Their decision also supported greater access to treatment for those who need it, which is paid for by the tax proceeds from marijuana sales. New York took a step in the right direction when they decriminalized possession of marijuana last year, but they remain several steps behind a large swath of the country that has legalized marijuana possession outright, including our next-door neighbors. While legislators and Governor Cuomo are interested in legalization, it’s unlikely to happen in the next year or two. Here’s why the legalization of marijuana, and other drugs, is worthwhile: not only would it ameliorate years of disproportionate effects of criminal drug possession on communities of color but it would give those with addictions greater access to higher-quality treatment. It also wouldn’t hurt to make some money by taxing those “products,” which could prove to be cleaner and safer than those cut with harmful and toxic chemicals. By the way, we certainly don’t mean to imply that it should be legal to drive while impaired by a drug, whether it’s legal or illegal. Please don’t do that.

We’re only suggesting that the war on drugs was misguided and that Oregon, and other states who are following suit, are headed in the right direction. Let’s convince New York to do the same.

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