Albany DWI and DA Soares' New Policy

Kudos to the Times Union for breaking an important legal news story. The Albany District Attorney's office has adopted a new policy regarding plea bargains in drunk driving cases.

For starters, a big chunk of the policy depends on the accused person's blood alcohol content, or BAC. Also, the accused must also complete an "alcohol evaluation" before there will be any plea bargain offer.

If the BAC is 0.14 or lower, the DA may agree to a reduced charge of DWAI, along with a sort-of standard package -- fine, the "Victim Impact Panel" (aka VIP), waive appeal, and do the Drinking Driver Program (or DDP). For those charged with DWAI already (usually 0.05 to 0.07 BAC), this is what is known as "plead to the charge." I'll discuss that concept more later. I should note though, that the policy may be different if the BAC is 0.05 or 0.06.

For 0.15-0.19, the offer is plead guilty to DWI, with the same package as above. For the 0.15-.17 part of the range, the offer is "plead to the charge."

For 0.20 and up, (.18 and up is the relatively new "Aggravated DWI"), the deal is plead guilty ("plead to the charge" again), do 3 years probation along with the package, and a requirement of an "ignition interlock device" for the remainder of the 3 years probation.

There are other details related to cases with accidents or defendants with prior convictions, but I won't get into the details of that here, except that they also require a plea to the charge.

So we have an election year, and the DA has suddenly decided after three years in office that his previous approach to DWI was too soft, and now he's getting tough on drunk driving. Politically, it seems the media should be jumping all over him for playing election year politics with people's lives. Either that, or nail him for being too soft on DWI in his first three years in office.

But let's talk about why this matters. The biggest problem initially is the "plead the charge" offers. That's not an offer. A defendant doesn't need the DA's offer to plead guilty to the charge. All they have to do is walk in and tell the judge they plead guilty. You don't even need a lawyer to do that. If you plead guilty to the charge, you'll get the same deal that the DA's policy includes, and in some cases you'll do better. An offer is a reduction to a lesser charge. for most of the Soares' policy, there's no offer.

I had a client who was in an accident, someone was injured, and she was charged with DWI. This was an active duty soldier. The offer was plead guilty to the charge and do 3 years probation. For those who don't know, probation typically requires someone to stay in the area where they're on probation - you know, "don't leave the county." That's kind of tough to do if you're on active duty in the military, and this soldier was getting ready to be deployed overseas.

In that case the offer was reasonable for the circumstances of the incident, except for the soldier thing. For some reason the ADA refused to agree to have him plead guilty without probation. I like this particular ADA. He's usually reasonable, often more so than others. But I guess he had a thing for accident cases and just wouldn't budge. The client did not want to fight the charge, so I had her enter a plea of guilty. There was a "pre-sentence investigation" (PSI) where my client met with a probation officer who made a sentencing recommendation to the judge.

Aside from this DWI incident, this client turns out to be a really good person. The probation officer recognized that she did not need to be supervised by the probation department -- they deal with people who have far more serious problems, and the client was already in a heavily supervised environment. The recommendation was even better than that - no fine. I'm still not sure a judge can do this, but there was no fine, saving the client $500.

For DWI lawyers, "plead to the charge" is unacceptable. Faced with that offer, a good DWI lawyer will insist on the entire process, including a trial if necessary (as long as we have a client willing to pay, of course). We win a lot of these cases, more than half of the ones we fight (warning - your mileage may vary - okay officially: prior results do not guarantee future performance - we might lose your case). I should define win also ... if as a result of fighting the case we get a better deal (such as a speeding ticket), that's a win. This usually happens because something in the case has gone well and the ADA knows the case is in trouble. But we win for real too. We won a jury trial a couple months ago (BAC of .32, offer was plead to the charge - he wasn't driving, listening to the radio in the parking lot with the engine running). We've gotten evidence suppressed in a bunch of cases - this usually means the results of the chemical test (BAC), and that usually means the prosecutor can't go forward. We've gotten cases dismissed on "speedy trial" grounds.

If the case isn't going well, we can always make the "plead to the charge" deal before trial (even during trial). And if we lose at trial, the PSI might suggest a lesser sentence than the deal anyway -- they rarely suggest worse.

More and more DWI lawyers are fighting. As a result, courts are getting busier and the front line prosecutors are getting overwhelmed. We've seen ADAs get fired for making one mistake - if it hits the media anyway. The office already had high turnover, and it seems to be getting worse. Some other DAs have adopted similar policies, but in practice their front-line ADAs have more flexibility.

The increased number of hearings and trials shows what we've known for quite a while. The police make a lot of mistakes. We're also finding that a lot of jurors don't like DWI cases. Maybe some of them drink?

David Soares and Citizen Action

I just got an e-mail for a David Soares fundraiser, and I just have to debunk the propaganda. Here are some of the claims, and my comments:

In his first term in office, David has fulfilled his campaign promises by:

Shutting down crack houses through our Safe Homes, Safe Streets Program to improve the quality of life in our neighborhoods

I don't remember a campaign promise to shut down crack houses. I thought he was in favor of drug policy reform and harm reduction. How is evicting families supporting harm reduction?

Being "tough on crime and smart on prevention"

I also don't remember a campaign promise to be tough on crime. I remember he supported drug policy reform, but haven't seen that in action. More on that below.

Sticking to his commitment to "one standard of justice"

This is so laughable I don't know where to start. Okay I do. Hevesi stole over $100K and did no jail time. One standard?

Creating a public integrity unit to hold government and law enforcement officials accountable

Again, laughable. The case against the Guilderland police chief has vanished into a black hole in the "public integrity unit." A complaint was filed against another town employee and nothing has happened on that either. Have they actually prosecuted anyone?

Supporting Rockefeller Drug Law reform

This is his biggest betrayal. Under Soares, some of the ADAs insist on community service for minor marijuana cases, which is illegal under CPL 170.56. No DA's office that I know of anywhere in the greater area, and I'm talking out to Utica and down to Kingston, does this. He's worse on marijuana than other DAs. And they keep indicting small time drug dealers on felonies. Where's the reform. Soares actually has the power to do something, and he does nothing.

Promises Kept… More to do...

Right. And I forgot to mention how Soares hired Richard Arthur, a Working Families Party hack, to work in the DA's office. From everything I've seen, the guy is completely unqualified. The job is a political payoff.

Rensselaer Train Station

Several years ago a new train station was built for Amtrak in Rensselaer. I don't remember all the details, but it cost a huge amount of money. $55 million sticks in my head, but maybe that was before the cost overruns.

I'm sitting now in the station waiting for a train. On the drive up I noticed that the old station buildings are still there, and they don't look so good. Seems like there was no plan as to what to do with the old buildings when they built the new ones. You would think, with all the traffic that goes right by them, both in cars and on foot, that there would be a value in turning them into retail space. Or maybe tearing them down and putting in some stores or restaurants there.

Nothing doing. It's gotta be five years now. That's the brilliance of government planning for you.

It's also obvious that the new station is not being maintained all that well. Not terrible, but the waiting area chairs look like crap. They're also uncomfortable. They probably didn't budget for the cost of upkeep for things like that. The rest of the place looks okay, but not outstanding. It hasn't been here that long though.

On the plus side there appears to be free WiFi. That is appreciated.

What do lawyers do? Diversifying the revenue stream

An interesting issue has come up in our office recently. How much should a small law firm like ours do to diversify our revenue stream? Other businesses have this kind of issue, but in some ways this is special to lawyers.

Our law firm in Albany has a strong main practice handling traffic cases in upstate New York. We get roughly ten new traffic cases a week. One nice thing about this is that it's steady revenue.

Going along with traffic, we get a fair number of criminal and especially DWI cases. This is also reasonably steady, but the volume is lower so the peaks and valleys are more obvious. April has been a particularly slow month in that area, which is part of what brings this to mind.

We also have our personal injury practice, which is even lower volume and the timing of revenue is borderline random. We can go months with no revenue in personal injury and then settle three cases within a couple weeks.

So far that seems like a good diversity of revenue. But now our associate may have a new client with some commercial debt collection cases. I have a fair bit of knowledge about debt collection work. My clerkship in Supreme Court exposed me to that, and I've done a little work in consumer debt collection, mostly as a referee in foreclosure sales but also representing a couple of debtors.

Initially it seems like a good idea. Why not have another revenue stream? Don't you want to make more money? Well, yes, of course. I do worry about our firm becoming overly complicated, but for now this particular client and this particular line of cases shouldn't be too bad. If it's a low volume, then it's no big deal. If it becomes bigger then we may have to hire another lawyer or clerical staff, but that's hardly a problem if the money's coming in.

I'm not fond of the debt collection business, but mainly that's my reaction to what I've seen in consumer debt collection. This particular client has high-end debt collection cases involving commercial debt and commercial property, so it means little or no negative feelings. Anyone is going to feel at least a little bad kicking a little old lady out of her home, but getting commercial property back from a business isn't bothersome at all.

Of course, it's a lot better having this problem than not having any clients. That's for sure.

Vermont Traffic Courts

I got motivated and entered all the traffic courts in Vermont in the past week or so. Not too many of them. Vermont has fourteen counties. Each county has two courts -- District Court and Superior Court. As one might think, District Court handles lesser offenses while Superior Court handles the more serious ones. But in an interesting twist, Vermont Superior Court does the small claims.

There is also a statewide Vermont Traffic Court, also known as Vermont Judicial Bureau. It does more than traffic. Some day we hope to find out which cases are heard there versus the regular district courts.

More Traffic Court News

Our Traffic Court website has shot up in the world a bit. According to Alexa, the site is now among the top 350,000 websites in the world. That's a big jump, but not really because of an increase in the importance of our site.

Alexa changed the way it measures websites. They had been criticized for some time for relying too much on their own "toolbar". It's unclear exactly how they've changed their measurement, but it appears they are adding other techniques. For us it's great, but others are unhappy with the change.

Who knows if it really means anything. We know that visits to our site have grown. We're very close to a consistent 60,000 unique users per month. We've added a bunch of new courts in California, Florida and Ohio. Sooner or later those pages will start to attract more attention and the site traffic should go up a bit more.

San Diego Criminal Court - The Marine Widow Case

We finished the San Diego Superior Courts, and I came across a great story in the process. It's apparently called the Marine Widow case, and that link is to a story about it. Heard in San Diego Criminal Court.

Short version: Marine dies. Wife responds by getting a boob job with the life insurance money, joining wet t-shirt contests, and shagging other soldiers. Also buys herself out of substantial credit card debt. Some chemical tests showed high levels of arsenic in the dead marine's body, so they charge wifey with poisoning him. She gets convicted but reversed on appeal because her lawyer was defective. On the second trial, it turns out that the chemical tests were crap. The numbers on some were so high they were impossible, and on others they were normal.

What did we have here? Reckless prosecution, apparently failing to disclose evidence indicating innocence. Incompetent defense lawyer, but fortunately saved by a more than competent defense lawyer. Apparently Allen Bloom is the go-to guy in San Diego. And an attractive woman and mother of four gets stuck in jail for well over two years unjustly. American justice at work!