1. Visiting Lake George Village is a must. While there, Around the World Mini Golf is required to be played along with a quick stop at the Pink Roof for Ice Cream.
2. Clean out the old closet to make room for summer atture. Put away the fleece and sweaters. (Although knowing the weather of the Great North East, they will be back on us in no time flat!)
3. No matter rain or shine, a camp fire is a must. Marshmellows are a definite and hot dogs are strongly suggested. (Nathans are best!)
4. Put the smartphones, ipads, and lap tops away and enjoy the outdoors. Don't worry, Angry Birds will be there when you get back.
5. Take the time to give thanks and appreciation to all the great men and women in our Armed Forces. Cheer them loud and proud!
Marty Carbone, Carbone & Carbone LLP, Attorneys at Law, www.carbonelawyer.com
Monday, May 30, 2011
Thursday, May 12, 2011
New York's No Fault Divorce
Recently NY passed new legislation within the domestic relation law that now allows couples to divorce by reason of "no fault." This is similar to divorce by way of irreconcilable differences, which is a divorce option in other states. What this means is that neither party is holding the other responsible for the pending dissolution if the marriage.
Prior to this recent legislation, the quickest way to divorce by way of mutual agreement without holding either party at fault was to file a separation agreement and then live separate and apart for at least one year. After such time, one of the parties would file for divorce and a judgment was typically granted, as the separation agreement would merge or convert into a final divorce decree.
With New York's no fault divorce, the parties relationship must be irreparably harmed and the couple must live separate and apart for at least six month prior to filing for divorce. On its face, this option sounds quick, easy and painless but like virtually everything in life, it's not always that simple.
To be granted a divorce under No Fault, the parties must have all of their ducks in a row pertaining to marital support, child support, and division of marital assets. If there is a dispute with regard to any of these issues, the parties will need to either come to terms prior to filing for divorce under no fault or must otherwise file for divorce under a different statue and litigate their outstanding issues in Supreme Court accordingly.
So before one runs right out and files for divorce under this new legislation, make sure all outstanding issues are taken care of. If not, claiming No Fault will be Your Fault.
For more information on this topic and similar legal matters, such as matrimonial matters and family court issues, please visit www.carbonelawyer.com.
Martin A. Carbone, Esq., Carbone & Carbone LLP, Attorneys at Law
Prior to this recent legislation, the quickest way to divorce by way of mutual agreement without holding either party at fault was to file a separation agreement and then live separate and apart for at least one year. After such time, one of the parties would file for divorce and a judgment was typically granted, as the separation agreement would merge or convert into a final divorce decree.
With New York's no fault divorce, the parties relationship must be irreparably harmed and the couple must live separate and apart for at least six month prior to filing for divorce. On its face, this option sounds quick, easy and painless but like virtually everything in life, it's not always that simple.
To be granted a divorce under No Fault, the parties must have all of their ducks in a row pertaining to marital support, child support, and division of marital assets. If there is a dispute with regard to any of these issues, the parties will need to either come to terms prior to filing for divorce under no fault or must otherwise file for divorce under a different statue and litigate their outstanding issues in Supreme Court accordingly.
So before one runs right out and files for divorce under this new legislation, make sure all outstanding issues are taken care of. If not, claiming No Fault will be Your Fault.
For more information on this topic and similar legal matters, such as matrimonial matters and family court issues, please visit www.carbonelawyer.com.
Martin A. Carbone, Esq., Carbone & Carbone LLP, Attorneys at Law
Friday, April 15, 2011
Providing Legal Protection for your Business
Entering into any business venture always has some sort of risk. There are no guarantees that the business will become successful. More often than not, start up companies fall flat before they even get out of the starting gate.
To protect ones personal and professional assets when entering Into such a venture, one of the easiest and smartest things to do is to form some form of corporate shield, namely an LLC.
An LLC is a Limited Liability Company that affords legal protection to a business as allows said business to be viewed as an entity and not as a living breathing person. With said legal entity status comes legal protection and allows the business to stand out on it's own without holding the members of the entity personally liable for any financial issues and concerns. In other words, if the company goes "belly up," under an LLC the members will not have to sell their homes and put their prized baseball collection on eBay.
To form a Limited Liability Company, one needs to first file Articles of Organization with the Department of State. Once approved, the LLC needs to be published in 2 local newspapers for a set period of time. After the required publication period ends, a Certificate of Publication is filed with the Department of State and that is that. The procedure is relatively painless and well worth it.
For more information on this topic and similar legal matters, such as forming a PLLC, LLP, or PC, please visit www.carbonelawyer.com.
Martin A. Carbone, Esq., Carbone & Carbone LLP, Attorneys at Law
To protect ones personal and professional assets when entering Into such a venture, one of the easiest and smartest things to do is to form some form of corporate shield, namely an LLC.
An LLC is a Limited Liability Company that affords legal protection to a business as allows said business to be viewed as an entity and not as a living breathing person. With said legal entity status comes legal protection and allows the business to stand out on it's own without holding the members of the entity personally liable for any financial issues and concerns. In other words, if the company goes "belly up," under an LLC the members will not have to sell their homes and put their prized baseball collection on eBay.
To form a Limited Liability Company, one needs to first file Articles of Organization with the Department of State. Once approved, the LLC needs to be published in 2 local newspapers for a set period of time. After the required publication period ends, a Certificate of Publication is filed with the Department of State and that is that. The procedure is relatively painless and well worth it.
For more information on this topic and similar legal matters, such as forming a PLLC, LLP, or PC, please visit www.carbonelawyer.com.
Martin A. Carbone, Esq., Carbone & Carbone LLP, Attorneys at Law
Sunday, April 10, 2011
Social Media is No Legal Lame Duck
I have touched upon this topic in the past but after some recent experience I feel it is worth going over again. In this new decade of overwhelming social media, with forums such as Facebook, MySpace and Twitter, people now open themselves up to more liability in what they say. No more does testimony in court boil down to "he said, she said."
Now with Facebook, practically taking the world by storm overnight, said communication is permanently embedded and one must live with the consequences once they make their proclamations. Judges and attorneys now refer to social media communications without much scrutiny to its authenticity and validity. Most jurisdictions are taking the communication at face value and things progress from there. No more is Facebook and similar technology considered to be "kids stuff." Mark Zuckerberg, the creator of Facebook said he wanted to change the world and he did. What is impressive to me is that he went so far as to infiltrate and change the legal system to an extent which has always been historically conservative with regard to change.
In recent news, comedian Gilbert Gottfried made some remarks on his Twitter page that made light of the latest tsunami in Japan. Gilbert was subsequently fired from his job as spokesperson for insurance giant Aflac. For those who are unaware, Gottfried provided the voice of the duck which appeared on virtually all of Aflac's commercials. It is up for debate as to whether Gilbert should of been fired for his Twitter comments alone, but what is not up for debate is the fact that communication on Social Media outlets do not go unnoticed.
So if you are a frequent user of Facebook, MySpace, Twitter, and the like, make sure what you say is something you are comfortable with the world knowing. If not, comments made in haste can come back to legally haunt you. Just ask Gilbert "Got-fired."
For more on technology within litigation and other similar legal topics, feel free to visit www.carbonelawyer.com.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
Now with Facebook, practically taking the world by storm overnight, said communication is permanently embedded and one must live with the consequences once they make their proclamations. Judges and attorneys now refer to social media communications without much scrutiny to its authenticity and validity. Most jurisdictions are taking the communication at face value and things progress from there. No more is Facebook and similar technology considered to be "kids stuff." Mark Zuckerberg, the creator of Facebook said he wanted to change the world and he did. What is impressive to me is that he went so far as to infiltrate and change the legal system to an extent which has always been historically conservative with regard to change.
In recent news, comedian Gilbert Gottfried made some remarks on his Twitter page that made light of the latest tsunami in Japan. Gilbert was subsequently fired from his job as spokesperson for insurance giant Aflac. For those who are unaware, Gottfried provided the voice of the duck which appeared on virtually all of Aflac's commercials. It is up for debate as to whether Gilbert should of been fired for his Twitter comments alone, but what is not up for debate is the fact that communication on Social Media outlets do not go unnoticed.
So if you are a frequent user of Facebook, MySpace, Twitter, and the like, make sure what you say is something you are comfortable with the world knowing. If not, comments made in haste can come back to legally haunt you. Just ask Gilbert "Got-fired."
For more on technology within litigation and other similar legal topics, feel free to visit www.carbonelawyer.com.
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
Wednesday, April 6, 2011
Trials and Tribulations
In the legal world, the trial portion of procedure is looked upon as the final frontier. It is the culmination of pleadings, negotiations, conferences, etc. If a case goes to trial, it basically means that the parties could not reach a settlement and therefore they are putting all of their faith and trust in the presiding judge.
Going to trial, whether it be a civil or criminal matter always carries some risks. Unlike a settlement, the parties face an unknown outcome and are essentially rolling the dice, so to speak. A trial is often look at as an all or nothing type of thing. A person can walk out of the court room as happy as a clam or they can be dragged out kicking and screaming.
For this very reason it is extremely important for litigants to enter into negotiations with an open mind and decent attitude. When it comes to reaching a settlement, the parties have, at the very least, some sort of control over their own destiny. This in part will help guarantee them with an outcome they can live with. One or more parties may not get exactly what they were looking for but with a reasonable settlement, they at least have the opportunity to come to some sort of acceptable compromise.
More often than not, however, emotions get the better of us and we as a whole are not quick to compromise when it comes to issues we believe in and feel strongly about. When this occurs, settlement negotiations typically are thrown out the window and it's off to trial, full steam ahead. This is all well and good, but again, going to trial can be risky business and should only be conducted on legal merit and not on haste and raw emotion.
So the next time you or someone you care about is faced with a legal dilemma, make sure heads remain as cool as possible. In doing so, you will have a greater chance to prevail and prosper.
For more on trial procedure and other similar legal topics, feel free to visit www.carbonelawyer.com
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.facebook.com/carbonelawgroup
www.twitter.com/carbonelaw1
www.lakegeorgelawyer.com
Going to trial, whether it be a civil or criminal matter always carries some risks. Unlike a settlement, the parties face an unknown outcome and are essentially rolling the dice, so to speak. A trial is often look at as an all or nothing type of thing. A person can walk out of the court room as happy as a clam or they can be dragged out kicking and screaming.
For this very reason it is extremely important for litigants to enter into negotiations with an open mind and decent attitude. When it comes to reaching a settlement, the parties have, at the very least, some sort of control over their own destiny. This in part will help guarantee them with an outcome they can live with. One or more parties may not get exactly what they were looking for but with a reasonable settlement, they at least have the opportunity to come to some sort of acceptable compromise.
More often than not, however, emotions get the better of us and we as a whole are not quick to compromise when it comes to issues we believe in and feel strongly about. When this occurs, settlement negotiations typically are thrown out the window and it's off to trial, full steam ahead. This is all well and good, but again, going to trial can be risky business and should only be conducted on legal merit and not on haste and raw emotion.
So the next time you or someone you care about is faced with a legal dilemma, make sure heads remain as cool as possible. In doing so, you will have a greater chance to prevail and prosper.
For more on trial procedure and other similar legal topics, feel free to visit www.carbonelawyer.com
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.facebook.com/carbonelawgroup
www.twitter.com/carbonelaw1
www.lakegeorgelawyer.com
Thursday, March 24, 2011
Howard Stern Sues Sirius
Love him or hate him, Howard Stern may have a legitimate lawsuit on his hands. After recently signing a new 5 year contract worth approximately $500 million, the "King of All Media" is gearing up to sue his current employer. While the pending suit gets under way, Stern continues to work for Sirius XM satellite radio, broadcasting his morning radio show every Monday through Thursday.
Not much is currently known regarding the particulars of the law suit at this time but as with most things, it all boils down to the mighty dollar. When Stern signed his initial deal with Sirius back in October 2004, one of the perks of said deal was that Stern was promised certain stock options if the company met certain quotas in terms of subscribers. It has been reported that the quotas were more than met, having exceeded estimated subscriptions by the millions.
Reports claim that Sirius has paid Stern "enough money already" and are under no obligation to pay him any more. The claim stems from Sirius XM not paying out on their agreement to award Howard his stock options. Howard Stern, of course feels as though he has earned said compensation and should get what was initially agreed upon based on the company meeting and ultimately exceeding its business expectations.
The legal dilemma that is raised in all this turmoil is whether Howard and Sirius have a conflict of interest. Certainly the pending law suit makes for an awkward and uncomfortable work environment to say the least. This situation somewhat parallel to the current media frenzy involving Charlie Sheen, producer Chuck Lorre and CBS. Unlike the latter, Howard Stern is continuing to work while said legal issues are dealt with and at the moment is acting extremely professional and keeping things tight lipped.
Time will only tell, but one thing is certain: Howard Stern is Sirius.
For more on Charlie Sheen's legal woes and other similar legal topics, feel free to visit www.carbonelawyer.com
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
http://www.lakegeorgelawyer.com/
Not much is currently known regarding the particulars of the law suit at this time but as with most things, it all boils down to the mighty dollar. When Stern signed his initial deal with Sirius back in October 2004, one of the perks of said deal was that Stern was promised certain stock options if the company met certain quotas in terms of subscribers. It has been reported that the quotas were more than met, having exceeded estimated subscriptions by the millions.
Reports claim that Sirius has paid Stern "enough money already" and are under no obligation to pay him any more. The claim stems from Sirius XM not paying out on their agreement to award Howard his stock options. Howard Stern, of course feels as though he has earned said compensation and should get what was initially agreed upon based on the company meeting and ultimately exceeding its business expectations.
The legal dilemma that is raised in all this turmoil is whether Howard and Sirius have a conflict of interest. Certainly the pending law suit makes for an awkward and uncomfortable work environment to say the least. This situation somewhat parallel to the current media frenzy involving Charlie Sheen, producer Chuck Lorre and CBS. Unlike the latter, Howard Stern is continuing to work while said legal issues are dealt with and at the moment is acting extremely professional and keeping things tight lipped.
Time will only tell, but one thing is certain: Howard Stern is Sirius.
For more on Charlie Sheen's legal woes and other similar legal topics, feel free to visit www.carbonelawyer.com
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
http://www.lakegeorgelawyer.com/
Wednesday, March 23, 2011
How to Overcome a DWI or DUI Charge
DWI and DUI charges can hurt your driving record, your pockets, your career and even get you jail time. If you have been recently charged for DUI or DWI, it is not something to take lightly, but it also does not mean the case is closed before you step into the courtroom.
By hiring a decent defense attorney, one who knows what the DUI and DWI laws actually are in different areas, there are many ways that your case can go in your favor and can even get dismissed all together.
There are three categories that arresting officers and district attorneys can fall short in for DUI and DWI cases. Police Officer Procedures, Court Technicalities, and Testing Issues are all avenues that can help you win your case.
Here is a list of topics that may get you out of DWI or DUI hot water:
IMPROPER PROCEDURES BY POLICE OFFICERS
FAILURE TO OFFER MIRANDA WARNING – When the police have failed to properly issue Miranda Warnings, prosecutors cannot use statements from the defendant in custody for a DWI or DUI.
ILLEGAL STOP OF DRIVER – you can’t be pulled over unless your officer has reasonable to believe that a law has been violated.
ILLEGAL SEARCHING – Any evidence illegally obtained from improper searching is not admissible in court. Police cannot search a suspect or their automobile for a minor traffic offense without a driver’s consent or probable cause.
CONDUCT OBSERVATION PERIOD FAILURE – Most courts require that a driver be observed continuously for a minimum period of 15 minutes or more, before a breath test can be given.
WEAVING WITHIN THE LANES IS LEGAL – moving a little bit without crossing any lines is not breaking any law. A vehicle can’t be stopped for that reason.
ANONYMOUS LEAD OF DWI – when an anonymous citizen reported that the driver could be drunk, this is not reason enough to be pulled over in the first place.
POST-DRIVING ALCOHOL IMBIBING – The officer must prove the blood or breath alcohol at the time of driving and of the arrest. Consumption of alcohol after driving would increase results and were not the true levels when the person was operating the vehicle.
Police Procedure has to be followed, or the case could be dismissed in its entirety.
COURT ISSUES
FAILURE TO PROVE DUI – A defendant’s admission to driving does not prove a charge of DUI.
NO SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.
INDEPENDENT WITNESSES ACCOUNTS – In many cases, independent witnesses can have the charges dropped. Witnesses to accidents, bartenders who served the suspect, and even hospital personnel provide testimonies that prove the defendant’s sobriety in court.
PRIOR DISCIPLINARY RECORD OF THE OFFICER – To attack the officer’s credibility for a suspect’s case, a police officer’s previous disciplinary record can be used in hopes of dismissal.
MEDICAL & HEALTH PROBLEM FACTORS – Many factors can affect the outcome of intoxication test results. Medical problems having to do with eyes, arms, neck, back and legs often throw off the results and validity of many field sobriety tests.
BAD WEATHER – Weather reports that show evidence of low visibility, high winds, and other various extreme conditions are often admissible to explain poor driving.
LACK OF PROBABLE CAUSE – Sometimes the arrest itself is in question. The suspension of a license can be reversed, when a police officer doesn’t have specific facts to support any arrest for DWI or DUI.
INCONSISTENT POLICE STATEMENTS – Statement made by police both verbally and in written reports, may be used to attack officer credibility in a particular case.
MISLEADING POLICE STATEMENTS – Confusing or exaggerated arresting officer statements regarding the consequences of taking or refusing a blood, breath, or urine test, can have the case thrown out of court.
INTERFERING SUBSTANCES – Many items such as mouth wash, asthma spray, cough drops, paints and even fingernail polish contain forms of alcohol. These artificial means of alcohol can hinder proper blood level results and render the test invalid.
STATUTES OF LIMITATIONS – A DWI or DUI misdemeanor charge must be filed within a certain period of time, or the charges can be dismissed.
DWI ON PERSONAL PRIVATE PROPERTY – Often, the court will say that a person who has not driven the car onto a public street, road or highway cannot be charged for drunk driving.
DISCLOSURE OF EXPERT FAILURE – If prosecutor cannot disclose the identity of the state expert, this can be a cause for dismissal.
DUI and DWI TESTING ISSUES
USE OF LACTATE RINGERS – If hospital staff use lactate ringers during the treatment of a suspect, the hospital blood serum results will report elevated readings that are invalid.
TEST EXPERT WITNESSES – Are often required to inspect the validity of blood tests, breath tests, and also field sobriety tests.
FAILURE TO RECORD CERTIFICATION TESTS – the failure to provide the value of the simulator solution used to test validity in breath machines can cause the breath test results to be invalid.
FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. People with outstanding injuries, weight conditions, medical conditions, and those who are 65 years or older cannot be validly judged by these tests.
NON-STANDARDIZED FIELD TESTS ARE NOT LEGAL – touching your finger to your nose, or saying the alphabet, or counting backwards, all fail as valid sobriety tests.
BREATH TESTING IS INACCURATE –experts believe that one breath test alone is not valid. Breath testing is includes a variance as much s +/- 12.5%, non-specificity for ethanol, etc.
INADMISSIBLE PORTABLE BREATH TESTS – Many states and counties prohibit the use of portable breath testing. They do not allow such results to be used as evidence in DUI trials.
IMPROPERLY ADMINISTERED PORTABLE BREATH TEST– Typically, two tests need to be administered to consider the results evidential in nature. The manufacturers of many different portable breath testing devices require this for accuracy in testing.
BLOOD TEST IS INACCURATE – Police-issued blood tests often fail to follow prescribed rules by labs for proper testing, proper analysis, and/or proper recommended guidelines.
HOSPITAL BLOOD TEST IS WRONG – Sometimes a hospital can be wrong. Hospital blood tests can be wrong from time to time and overestimate a person’s actual blood alcohol levels by as much as 25%. Injured patients also throw off the blood results, due to blood loss and other chemical factors.
UNLICENSED BREATH TEST OPERATOR – Many states require the operator of the breath test to hold a valid operator’s license. If they do not, the breath test result can be deemed inadmissible in court.
BREATHALYZER MALFUNCTION – Most state rules declare that malfunction or repair of the instrument within a certain period of time can allow for the results of the suspect’s test to be presumed invalid.
BREATH TEST LICENSE EXPIRED – Most states require an unexpired operator’s license, or the breath test result is invalid and deemed inadmissible in court.
BREATHALYZER NOT APPROVED – The testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or a court can find the results of the said instrument to be inadmissible.
IMPROPERLY ADMINISTERED FIELD SOBRIETY TEST – Field tests that are improperly administered are not valid evidence of intoxication, according to statements made by the National Highway and Traffic Safety Administration.
VIDEO ISSUES
FAILURES TO PRODUCE DISPATCH VIDEOS – Many counties record everything as a standard today. Failure to produce video proof upon request can sometimes cause all evidence to be suppressed in many courtrooms.
BOOKING ROOM VIDEO PROOF – Many police videotape drivers at the station, where their speech and balance appear, in spite of police testimony to the court.
IN-SQUAD VIDEO PROOF – Quite often, driver performance on field tests is being recorded and these tapes sometimes contradict police testimony.
For additional blogs on this topic and other similar legal issues, feel free to visit http://www.carbonelawyer.com/
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
http://www.lakegeorgelawyer.com/
By hiring a decent defense attorney, one who knows what the DUI and DWI laws actually are in different areas, there are many ways that your case can go in your favor and can even get dismissed all together.
There are three categories that arresting officers and district attorneys can fall short in for DUI and DWI cases. Police Officer Procedures, Court Technicalities, and Testing Issues are all avenues that can help you win your case.
Here is a list of topics that may get you out of DWI or DUI hot water:
IMPROPER PROCEDURES BY POLICE OFFICERS
FAILURE TO OFFER MIRANDA WARNING – When the police have failed to properly issue Miranda Warnings, prosecutors cannot use statements from the defendant in custody for a DWI or DUI.
ILLEGAL STOP OF DRIVER – you can’t be pulled over unless your officer has reasonable to believe that a law has been violated.
ILLEGAL SEARCHING – Any evidence illegally obtained from improper searching is not admissible in court. Police cannot search a suspect or their automobile for a minor traffic offense without a driver’s consent or probable cause.
CONDUCT OBSERVATION PERIOD FAILURE – Most courts require that a driver be observed continuously for a minimum period of 15 minutes or more, before a breath test can be given.
WEAVING WITHIN THE LANES IS LEGAL – moving a little bit without crossing any lines is not breaking any law. A vehicle can’t be stopped for that reason.
ANONYMOUS LEAD OF DWI – when an anonymous citizen reported that the driver could be drunk, this is not reason enough to be pulled over in the first place.
POST-DRIVING ALCOHOL IMBIBING – The officer must prove the blood or breath alcohol at the time of driving and of the arrest. Consumption of alcohol after driving would increase results and were not the true levels when the person was operating the vehicle.
Police Procedure has to be followed, or the case could be dismissed in its entirety.
COURT ISSUES
FAILURE TO PROVE DUI – A defendant’s admission to driving does not prove a charge of DUI.
NO SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.
INDEPENDENT WITNESSES ACCOUNTS – In many cases, independent witnesses can have the charges dropped. Witnesses to accidents, bartenders who served the suspect, and even hospital personnel provide testimonies that prove the defendant’s sobriety in court.
PRIOR DISCIPLINARY RECORD OF THE OFFICER – To attack the officer’s credibility for a suspect’s case, a police officer’s previous disciplinary record can be used in hopes of dismissal.
MEDICAL & HEALTH PROBLEM FACTORS – Many factors can affect the outcome of intoxication test results. Medical problems having to do with eyes, arms, neck, back and legs often throw off the results and validity of many field sobriety tests.
BAD WEATHER – Weather reports that show evidence of low visibility, high winds, and other various extreme conditions are often admissible to explain poor driving.
LACK OF PROBABLE CAUSE – Sometimes the arrest itself is in question. The suspension of a license can be reversed, when a police officer doesn’t have specific facts to support any arrest for DWI or DUI.
INCONSISTENT POLICE STATEMENTS – Statement made by police both verbally and in written reports, may be used to attack officer credibility in a particular case.
MISLEADING POLICE STATEMENTS – Confusing or exaggerated arresting officer statements regarding the consequences of taking or refusing a blood, breath, or urine test, can have the case thrown out of court.
INTERFERING SUBSTANCES – Many items such as mouth wash, asthma spray, cough drops, paints and even fingernail polish contain forms of alcohol. These artificial means of alcohol can hinder proper blood level results and render the test invalid.
STATUTES OF LIMITATIONS – A DWI or DUI misdemeanor charge must be filed within a certain period of time, or the charges can be dismissed.
DWI ON PERSONAL PRIVATE PROPERTY – Often, the court will say that a person who has not driven the car onto a public street, road or highway cannot be charged for drunk driving.
DISCLOSURE OF EXPERT FAILURE – If prosecutor cannot disclose the identity of the state expert, this can be a cause for dismissal.
DUI and DWI TESTING ISSUES
USE OF LACTATE RINGERS – If hospital staff use lactate ringers during the treatment of a suspect, the hospital blood serum results will report elevated readings that are invalid.
TEST EXPERT WITNESSES – Are often required to inspect the validity of blood tests, breath tests, and also field sobriety tests.
FAILURE TO RECORD CERTIFICATION TESTS – the failure to provide the value of the simulator solution used to test validity in breath machines can cause the breath test results to be invalid.
FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. People with outstanding injuries, weight conditions, medical conditions, and those who are 65 years or older cannot be validly judged by these tests.
NON-STANDARDIZED FIELD TESTS ARE NOT LEGAL – touching your finger to your nose, or saying the alphabet, or counting backwards, all fail as valid sobriety tests.
BREATH TESTING IS INACCURATE –experts believe that one breath test alone is not valid. Breath testing is includes a variance as much s +/- 12.5%, non-specificity for ethanol, etc.
INADMISSIBLE PORTABLE BREATH TESTS – Many states and counties prohibit the use of portable breath testing. They do not allow such results to be used as evidence in DUI trials.
IMPROPERLY ADMINISTERED PORTABLE BREATH TEST– Typically, two tests need to be administered to consider the results evidential in nature. The manufacturers of many different portable breath testing devices require this for accuracy in testing.
BLOOD TEST IS INACCURATE – Police-issued blood tests often fail to follow prescribed rules by labs for proper testing, proper analysis, and/or proper recommended guidelines.
HOSPITAL BLOOD TEST IS WRONG – Sometimes a hospital can be wrong. Hospital blood tests can be wrong from time to time and overestimate a person’s actual blood alcohol levels by as much as 25%. Injured patients also throw off the blood results, due to blood loss and other chemical factors.
UNLICENSED BREATH TEST OPERATOR – Many states require the operator of the breath test to hold a valid operator’s license. If they do not, the breath test result can be deemed inadmissible in court.
BREATHALYZER MALFUNCTION – Most state rules declare that malfunction or repair of the instrument within a certain period of time can allow for the results of the suspect’s test to be presumed invalid.
BREATH TEST LICENSE EXPIRED – Most states require an unexpired operator’s license, or the breath test result is invalid and deemed inadmissible in court.
BREATHALYZER NOT APPROVED – The testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or a court can find the results of the said instrument to be inadmissible.
IMPROPERLY ADMINISTERED FIELD SOBRIETY TEST – Field tests that are improperly administered are not valid evidence of intoxication, according to statements made by the National Highway and Traffic Safety Administration.
VIDEO ISSUES
FAILURES TO PRODUCE DISPATCH VIDEOS – Many counties record everything as a standard today. Failure to produce video proof upon request can sometimes cause all evidence to be suppressed in many courtrooms.
BOOKING ROOM VIDEO PROOF – Many police videotape drivers at the station, where their speech and balance appear, in spite of police testimony to the court.
IN-SQUAD VIDEO PROOF – Quite often, driver performance on field tests is being recorded and these tapes sometimes contradict police testimony.
For additional blogs on this topic and other similar legal issues, feel free to visit http://www.carbonelawyer.com/
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
http://www.lakegeorgelawyer.com/
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