Wednesday, November 30, 2005

Tough DWI moment

Had a tough moment this morning. Client is from out of the area, got a DWI here. Relatively minor case. BAC was .10. No priors. This is a routine case where a good NY drunk driving lawyer would expect to get the charges reduced to a DWAI. The consequences are still significant, but it's a violation.
Because my client is from out of the area, I had him sign a waiver of appearance letting me take care of everything for him. This is proper under CPL 340.50(2). But judges don't like it.
I've done this in front of about 10 judges so far. Most have accepted it without much concern. A couple have not liked it, but gone along with it.
So this morning I was in front of a judge in Albany City Court. This is a good judge, who I like. But he's got his own ideas about how things should be, and he's firm about it. He was not happy that my client wasn't there.
I understand his side of it, but there's that darn 340.50(2), saying my client doesn't have to be there.
Short result -- looks like the judge is insisting my client come up tomorrow morning, 9 a.m.
I had warned my client about this, and fortunately the judge didn't just issue a bench warrant for my client's arrest.
Just another day as a DUI lawyer in Albany

Tuesday, November 29, 2005

Speeding Tickets in New York

Just some thoughts on speeding tickets. Got a call this morning. I get calls like this regularly. The caller, from New York City, got a speeding ticket in the Town of Bethlehem. She wanted to know how much to pay. Unlike other states, New York traffic tickets do not list the fine.

Here's how it works in New York traffic courts. First you plead -- guilty or not guilty. While the ticket says to appear in Court on a particular date, it is far more sensible to plead by mail. You don't have to go.

A side note here - that date is not rigidly enforced in most courts. In general one needs to be careful about court dates, but this one is far less important. If you're late, don't ignore it. Just send a letter to the Court stating your plea. If you are late enough, you will get a notice from DMV that if you don't appear, your license will be suspended. This is a good time to hire a lawyer, if you're that late, to make sure your license is not suspended.

Back to the process. If you plead guilty, the judge will set a fine and send you a notice. You will also get points on your license (if it was a moving violation), and you may get an extra surcharge from DMV if you get 6 points or more within 18 months. You also may lose your license if you get enough points or speeding tickets.

If you plead not guilty, the Court will set a trial date. In many courts a lawyer can negotiate a reduction for you by mail. You don't have to go to Court, and neither do we. In almost all courts a lawyer can appear for you, so you don't have to go. Or you can go yourself. In some courts they will not negotiate with someone who does not have an attorney. And in general, a lawyer should get you a better deal than you can get for yourself. A good lawyer knows what kind of deal to ask for.

Contrary to popular opinion, in most courts if the cop does not show up for trial, the ticket will not be dismissed. I did get one dismissed last night for this reason, but many courts will just adjourn for a new date. Not fair? Correct, but life isn't fair.

Sunday, November 20, 2005

Lawyer marketing on the web

I frequently check who else is marketing themselves on the web in my area. I got a kick today out of this one site - I won't give it an actual link (as that might boost their rankings), but it's legalshield -dot- org. It's a prepaid legal service plan.

On their page, they write that their members (i.e. their customers) "receive the best legal council possible."

Their use of the word "council" is questionable. You would hope your lawyer knows how to spell the word correctly - counsel.

Another one that amuses me is ticketkiller -dot- com. Your "guaranteed" ticket beater, they promise step by step instructions on how to beat your speeding ticket.

I just roll on the ground laughing when I read this stuff. I've attended seminars put on by traffic court lawyers who are more experienced than me, and I've never heard one say that they can guarantee anything. In general, good traffic attorneys advise their clients to take the best deal we can get for them, because the odds are against us in a trial. We only recommend trying a case in rare circumstances - such as when the best deal offered means you'll lose your license anyway.

Working in traffic court on a regular basis, I can say for sure there are no guarantees. You think the ticket will be dismissed if the cop doesn't show? That's actually not true in most courts.

So what is their guarantee, anyway? Read their site. They will refund you the $38 you paid them (assuming they actually live up to their guarantee). What about the extra fines? What about the $300 surcharge from DMV? How about the increased insurance premiums? Some guarantee.

The plain and simple truth is that if you are going to Court on a traffic matter, you should hire a lawyer. If not me, hire someone else. We will generally save you more money than you will pay us, and often the savings will be over $1000.

I wince when I see someone plead guilty to a 6-point speeding ticket without a lawyer. That's going to be about $300 in fines, another $300 in a surcharge from DMV, over $1000 in increased insurance rates, and you're now more than halfway to losing your license. And you could have hired a lawyer for $300 who would save you over $1000 after his fee.

Friday, November 18, 2005

Wall Street Journal and Iraq

Today's Wall Street Journal editorial got me going. I sent an letter to the editor, but they never print my letters. Here's what I wrote:

Dear Sirs:

In today's (11/18) editorial, you repeatedly refer to the lessons of Vietnam. One way you put it is "Don't fight wars you don't intend to win."

The biggest lesson of Vietnam was that we should not have gone. Reading your editorial, it would appear you think the mistake in Vietnam was backing out.

It's not whether you "intend to win". In a democracy, it is whether you believe public support for the war will last as long as necessary. This war never had the full support of the American people, and we never should have gone.
While I'm at it, here's another one I wrote back in April:

As a criminal defense lawyer, I'm tired of seeing executives whine about Eliot Spitzer's prosecutorial tactics (Holstein, "Manager's Journal", 4/19/2005, page B2). These CEOs should spend a week in local criminal courts watching how ADAs treat urban and trailer park defendants. Spitzer's tactics are mild by comparison. The AG's conduct does not create a presumption of guilt. A perp walk, where the
defendant is marched in front of TV cameras wearing a jail jumpsuit
and chains, is far more effective.

CEOs do have a right to due process. They can demand a trial. Unlike
most defendants, they don't have to sit in jail for 6 months while
they await that trial. Also unlike most defendants, CEOs usually get
deals with no jail time and with shareholders paying the bills.

While I think little of Spitzer running for Governor, his use of the
AG's office to support his political ambitions is no worse than any
other elected official. If his aggressive conduct is making executives
more careful, maybe that's a good thing.

Tuesday, November 15, 2005

DWI cases

I seem to be getting more DWI cases lately. I think my website has been doing better, but I'm not sure if that explains it all.

I've got three cases pending now where we're actually fighting the charges. In most cases you encourage your clients to take a deal. In two of my cases the clients have DUI charges that are recent enough that any regular plea deal (to DWI or DWAI) would mean loss of a drivers license for a significant period of time. And in all three, we have good cases to put to trial.

In one, the defendant was pulled over for running a stop sign in a parking lot. Problem for the prosecution is that V&T Law 1100(b) makes the stop sign law generally inapplicable in a parking lot. If the stop is invalid, the ensuing blood-alcohol test is thrown out and we win. Client blew a 0.09, which is at the bottom end of DWI. The prosecution's response to our motion was not impressive. They claimed that the stop was valid because of the defendant's "erratic driving". But the DWI bill of particulars has a checkbox for "erratic operation" and it is not checked off.

In another, the defendant passed 4 of 6 field sobriety tests. The Trooper gave him a breathalyzer anyway. He blew a 0.07, and is charged with DWAI. A DWAI case is harder for the prosecution. They must prove the defendant was impaired by the alcohol. For regular DWI (0.08 and above), simply proving the blood alcohol content is enough. In this case we can fight the admissibility of the breathalyzer itself and the question of impairment. We have at least one excellent witness to testify the defendant was not impaired, and then we have the defendant passing the field sobriety tests.

In the last case, the defendant's car broke down near his home. He walked into his apartment. The police came later (at least 40 minutes, maybe more -- I don't have the papers in front of me). Client blew a fairly high BAC (maybe 0.14, but I don't remember for sure). The problem for the prosecution here is that they can't prove what his blood alcohol was when he was in the car. I anticipate testimony that my client drank a substantial amount after he went into his apartment. This one will probably be the most interesting of the bunch.

The real goal in all of these is to persuade the DA to agree to a reduction that takes the case "out of alcohol", so it doesn't affect the defendant's license. The client will generally prefer the certainty of a deal to the risk of hearings and trial, even when they have a good case.

Personal Injury TV show

Wow I haven't posted in a while. Well, we went on a trip to Los Angeles for a week, so that's a partial excuse. As part of the trip, I "pitched" my idea for a personal injury TV series. I met with eight different companies/agencies at the Screenwriting Expo. I explained my idea for the show, and they seemed to like it. It seemed to help that I have genuine experience as a personal injury lawyer.