Wednesday, December 31, 2008

Blog post of funny traffic stops

The linked blog post shows some funny traffic stops. They're not all funny. #1 is pretty hilarious. Other good ones are #20, 17, 15, 14, and 11. The rest are so-so.

Sunday, December 28, 2008

Consequences of Aggressive DUI Enforcement

So, you think aggressive DUI enforcement is a great thing, huh? I got this message from a friend the other day. I edited it a bit.

I was driving on I-80 in New Jersey. I missed my exit and had pulled onto the shoulder to read the map when a State Trooper parked behind me. I was arrested for DUI because I looked red-eyed and my legs were wobbly from exercise and sleep deprivation thus resulting in poor balance on the field sobriety tests. They took me to the station and breathalyzed me twice. After being interviewed by 3 different cops I was eventually let go because I WAS SOBER. The problem then was my car had been impounded and everything had closed for the night. I had to spend $138 on a hotel My car cost $220 to get back, plus $40 on a taxi.

I'd love for someone to find me the statistics on all the people who have been subjected to this kind of treatment. Good luck with that. The winners write the history books. The DUI enforcers - the winners - don't keep those stats, or certainly not anywhere we might find them. Even if we found some, how would we know they're accurate?

I've known this friend for a few years now. He's from a part of the country where they have a noticeably different accent. He also skips to the beat of his own drummer - he's different. Not bad, just different. He has his own way of looking at things and doing things. But that describes somewhere between 25 and 50 percent of the population. Unfortunately, many cops upon encountering someone like this will erroneously conclude that the person is intoxicated or on drugs.

Several months ago I had a conversation with a police officer friend of mine. I asked him what he would do if someone he arrested blew a 0.05 BAC. Under NY law, that is prima facie evidence you are not impaired. His answer was that he would then assume the person was impaired by drugs. They have tests to check for that (DRE - Drug Recognition Expert (or Evaluator)). So I guess my friend was lucky in NJ that he wasn't subjected to even more tests.

For all those who beat the drum for more and more DUI enforcement, does any of this bother you?

Wednesday, December 24, 2008

Can't Afford a Lawyer?

It's a common phrase heard in the legal community. I can't afford a lawyer. The statement is usually followed by a request for free advice or pro bono representation.

I did a quick search on Google for "can't afford a lawyer" - there are 63,900 results. By contrast, "can't afford a doctor" has 6720 results, and "can't afford a gardener" has 672. I have to admit I'm surprised there were so many for gardener. Also seems odd that one is exactly ten times the other. It'll probably change in a day or so.

The "can't afford a lawyer" statement often comes from people who appear to have money. They're accused of possessing marijuana for example. I'm not up on the latest prices but it is my impression that marijuana costs quite a bit more than cigarettes, and cigarettes aren't cheap. If you can afford marijuana, then you can afford a lawyer. What the person really means is: "I don't want to pay for a lawyer." Well then you've made your choice. I can't afford to give you free advice or represent you pro bono either.

There's a sharp contrast between "can't afford a lawyer" and the situation being such that it's not worth hiring a lawyer. I sometime get calls from people who had an accident and their car was damaged. It was the other driver's fault and that driver's insurance company is only offering $2000 for the car, and the car's worth $3000. You might have a good case, but the cost of a lawyer is significantly more than the value of the dispute. Fortunately for small amounts like this you can go to small claims court.

But if you're charged with a crime, you should hire a lawyer. Does it cost a lot? Usually yes. Is it worth it? Usually yes. Some people will search for the cheapest lawyer they can find. Think about that one. A well-respected lawyer notes that no one looks for the cheapest heart surgeon. I agree that heart surgery is generally a more serious matter than most criminal cases but a criminal case is still a pretty big deal.

Since I mentioned pro bono, I've got to mention a riff of jokes I heard as a play off of that term. Pro bono is when lawyers represent people for free. Usually this is a public policy thing or something to help the poor. I do some pro bono work on drug policy and also helping minor party candidates with ballot access. But here are some other variations - some are mine, some are ones I heard:

No bono: Your client doesn't pay you.

Low bono: You don't get paid in full.

Slow bono: You get paid late.

Quid pro quo bono: Your client pays you with some other service in barter.

Show bono: You get paid with tickets to a musical.

Sunny bono: Your client offers you a weekend in their crappy condo in Florida.

Sonny bono: Your client sings to you.

Snow bono: Your drug dealer client pays you with cocaine.

Ho bono: Your prostitute client pays with ...

Bono bono: You get a U2 CD.

If any readers have more, post a comment.

Tuesday, December 23, 2008

DWI: To Blow or Not to Blow

One thing comes up a lot in DWI seminars. A client calls you late at night. They've been arrested and the cop wants them to blow into the "Breathalyzer". In most of NY the device is actually a Datamaster, but question is the same. And to be clear, I'm talking about the breath test in the station. The one in the field is commonly known as an alcosensor or field breath screen.

The answer varies from lawyer to lawyer, though some things are pretty straightforward. The most obvious one is that you shouldn't drink and drive. Okay, we've got that out of the way.

Beyond that, you have to look at the situation. One big question is: How bad do you need to drive?

If you refuse the breath test they will take your license. You get a chance at getting it back at a DMV hearing within about 2 weeks, but you usually lose that hearing.

For people who badly need to drive, this consequence is so overwhelming that it's a bad idea to refuse.

However, with the new Aggravated DWI law in NY and plea bargaining problems in some counties (especially Albany), in some cases it may actually be better to refuse. The penalties for Aggravated DWI are more severe than the "common law" DWI that you typically get if you refuse. This applies if your BAC is over .18, and the plea bargaining restrictions vary but in Albany it starts at .20. If your BAC is in that range, then you're probably not making thoughtful decisions anyway.

But if you believe, as I do, that the breath tests are highly unreliable, the danger of blowing a .20 or above might make it sensible to refuse.

On the other hand, if you don't need to drive, it may make more sense to refuse. One lawyer I know advises his clients not to blow. He believes juries will understand when the client says: "My lawyer told me not to blow. I followed his advice."

Many lawyers believe you should blow in almost any circumstance. The biggest exception is if there was an accident and there might be a dead body. In that case the consequences of a high BAC reading on the machine (prison) is typically worse than losing your license.

Based on my experience, I lean towards believing most clients should blow. Driving is important for almost everyone. And the simple truth is that we win a lot even in cases where the client blew a high BAC. Also, you might end up blowing a low BAC.

Then there are innovative approaches. I've heard a bunch. I'm not recommending anyone actually try these, but I'm kinda looking forward to the day someone comes in my office having done them. Please note this is not real legal advice - it's more humorous than anything else.

One of my favorite ideas comes from a judge (now retired). He said he carries a flask of liquor in his glove compartment. If he gets pulled over, he says he'll hand the cop the keys, open the flask and start drinking. The theory is that it renders the breath test result invalid. I don't think it'll work, but maybe some day we'll see.

Another idea is to go limp. If you're going to do this you should do it before the cop gets to your window. The theory on this one is that they have trouble stating their theory that you were drunk. They can't do field sobriety tests, and they don't get the other "clues" like glassy/bloodshot eyes, impaired/slurred speech, and impaired motor coordination. It's also hard for them to say you refused to blow. If they know what they're doing they'll get a judge to order a blood draw. But even so, they often make mistakes in that process. Still, this is a pretty risky strategy.

Maybe some of our readers will chip in with their own ideas.

The best approach is the obvious one. Don't drink and drive. I tell my clients to keep the phone numbers for taxi companies handy so they will have a way to get home. I do this myself even though I rarely drink. A taxicab ride is a lot cheaper than a DWI.

Thursday, December 18, 2008

Pringle Hearing and the DWI Prompt Suspension

In handling our DWI cases, the "prompt suspension law" has been bothering me, along with a number of other issues. I first wrote about this a couple years ago as part of a post about judges who have policies. So now I'm going to rant about what's wrong with the prompt suspension and how Pringle v. Wolfe (88 N.Y.2d 426 (1996)) is being applied (or misapplied).

For those who don't know, here's what happens at the start of most DWI cases. The defendant shows up for the court date on the ticket. If the defendant pleads guilty (to DWI or DWAI), then the judge suspends the defendant's license. The court almost always grants a "20-day stay" which allows time to get into the Drinking Driver Program (DDP). By getting into the DDP, the defendant gets a conditional license which lets you drive to work, for work, and some other driving. You get your full license back in 90 days on a DWAI. That's what happens to the guilty people.

For those who show up and plead not guilty, it's a mixed bag. Many judges will suspend the driver pursuant to the prompt suspension law (Vehicle & Traffic Law § 1193[2][e][7]). If you have a lawyer or know what you're doing, you can ask for a Pringle Hearing. That will usually let you keep your license for a few days. You almost always lose the Pringle Hearing because the deck is stacked against you (I'll get into that). Thirty days after the suspension starts you can go to DMV and get a conditional license similar to the DDP one. Some drivers will be able to get a hardship privilege for the 30-day period, but that's difficult and the privilege is very limited -- to and from work only. It doesn't let you drive for work. If you're unemployed, it doesn't let you drive to look for work either.

So, for the innocent (remember that whole innocent until proven guilty thing?), you either can't drive at all or have extremely limited driving for 30 days, and then your driving is somewhat limited while the case is pending - which can take a year or more. The guilty get their full license for 20 days, then get the milder suspension for 90 days. This is the root of the problem, but there are many branches.

Underlying all of this is the real purpose - the prompt suspension discourages people from fighting the DWI case. Innocent people who need to drive plead guilty so they can drive.

There are at least a couple constitutional issues. For starters there's procedural due process - you're supposed to get notice and an opportunity to be heard. You show up to court and the judge tells you he's going to suspend your license. In many cases that's your notice and most people don't know to ask for the Pringle Hearing (your opportunity to be heard). In some courts the judges require you to make a written motion for your Pringle Hearing. You get the opportunity to be heard only if you make a formal application for it. And some judges will suspend you before the Pringle Hearing starts.

Then within the hearing, the standard for suspension is simply whether the "accusatory instrument" (the ticket) is facially valid (they wrote it correctly) and whether there's a valid chemical test showing your BAC was over the limit (0.08). There are other issues that should be considered, but many judges are not interested in them. They don't care about probable cause, or if the chemical test sheet shows irregularities that are unexplained. I just had a hearing where the chemical test showed that the "reference standard" (a bottle of solution that is confirmed by a lab to be 0.10) tested at 0.09 and the temperature was off by 0.1 degrees celsius. I argued that the State should have to prove by expert testimony that this was a valid chemical test. Instead the police officer, who got trained 3 months ago, said that he was trained such variation was acceptable. There's no foundation for his expertise. Nada. He's not an expert. He doesn't know the difference between vertical and horizontal (he demonstrated that in the hearing). Allowing junk science with no foundation into a courtroom further violates the defendant's procedural due process rights.

The process does allow the driver to "rebut" the findings. But this is a ridiculous shifting of the burden. Instead of the State having to show that its tests and evidence are valid, the defendant has to show the tests and evidence are invalid. The State is taking away a substantial right and it should be the State's burden.

The burden shifting also takes us into another realm - substantive due process. When the State infringes a fundamental right, it's means must be narrowly tailored to a compelling interest. Here the Courts will likely say that maintaining highway safety fits. Of course it seems like the government keeps finding more and more compelling interests. The larger problem is the lack of tailoring.

If the concern is protecting highway safety, then how is it tailored if the guilty ones get to continue driving on an unlimited license for 20 days and continue somewhat limited for 90 days, but the innocent drivers can't drive (or are very limited on the hardship privilege) for 30 days and are then limited for an indefinite period of time that often exceeds a year?

Our civil rights are being trampled. Crossing the border is a nightmare to protect us from illegal aliens who want to work on our farms, build our buildings, and take care of our gardens and children. Millions of New Yorkers are subjected to intimidating traffic stops (and worse) to protect us from those who drive 80 mph on roads designed for cars to go 120 mph. With DWI, thousands upon thousands of drivers are rudely interrupted from their daily lives and subjected to "field sobriety tests" (also junk science) and more, and many innocent drivers are suspended for a year or longer. I do appreciate the desire to keep us safe from drunk drivers. The criminal process takes care of that without the need for the prompt suspension law.

Here's what the Pringle case says about that:
To compel the State to provide another level of procedural protection would require plenary hearings and would effectively convert the license suspension proceeding into a trial on the merits of the underlying criminal charge. Such a procedure would be prohibitively expensive and cumbersome, and would subvert the State's compelling interest in promoting highway safety. In view of the temporary duration of the license suspension, such elaborate procedural protections are not constitutionally mandated.

The license suspension may be temporary, but it is also indefinite. I've had clients go a year and a half. Prohibitively expensive and cumbersome? How about for the innocent defendant? Why does the State's half-assed approach (letting the guilty drive while suspending the innocent) to safe roads outweigh the innocent driver's need to drive?

Pringle, by the way, relies on cases involving a refusal to take the chemical test. One case it relies on is Mackey v. Montrym, 443 US 1 (1979), which states:

Nor is it any answer to the Commonwealth's interest in public safety that its interest could be served as well in other ways. The fact that the Commonwealth, for policy reasons of its own, elects not to summarily suspend those drivers who do take the breath-analysis test does not, as the District Court erroneously suggested, in any way undermine the Commonwealth's strong interest in summarily removing from the road those who refuse to take the test. A state plainly has the right to offer incentives for taking a test that provides the most reliable form of evidence of intoxication for use in subsequent proceedings. Indeed, in many cases, the test results could lead to prompt release of the driver with no charge being made on the "drunken driving" issue. And, in exercising its police powers, the Commonwealth is not required by the Due Process Clause to adopt an "all or nothing" approach to the acute safety hazards posed by drunken drivers.

This still seems to me to be a procedural due process analysis. I wonder how it would fare under substantive due process. Perhaps we'll see.

Wednesday, December 17, 2008

Speed Cameras in New York State: Coming Soon?

New Update (January 2010): Speed cameras are back in the Governor's proposed 2010 budget.
Update: It appears that the speed cameras were left out of the final budget. Maybe next year.
New York State is hungry for money. Speed cameras are coming. The full text of the proposed new law is at the bottom. Here are some details:

a. A new statute would be created, § 1181-a of the Vehicle and Traffic Law. This law holds vehicle owners liable for speeding - even if they're not driving the car.

b. The law would authorize the State Police to place up to 60 speed cameras ("photo-monitoring systems") in work zones and "designated stretches of highway". I'm not sure how the stretches of highway are to be designated. Subsection 1. Might be a defense that the relevant highway was not "designated". Don't count on the process being fair here, by the way.

c. They are supposed to place signs 300 yards in advance to warn people that the device is there. Also subsection 1. Thus you may have a defense that there was no warning sign.

d. The fine, per subsection 5, is $50 for regular speeds, and $100 for speeding in a work zone. There's an interesting potential gap here. The $50 is for § 1180(d) and the $100 is for § 1180(f). There's no mention of § 1180(b), which is the usual charge for 55 mph zones. 55 mph is the default speed limit in NY, so if you get a speed camera ticket in a place where there's no speed limit sign posted, you might be able to argue that there is no appropriate fine.

Another interesting point is that the fine is not variable. If you are going 1 mph over the limit or 60 mph over the limit, it's the same fine.

e. Speed camera tickets will not go on your driving record and cannot be held against you by insurance companies. Subsection 6.

f. The proposal also contains a complicated process for how the ticket will be handled. Basically, the State sends you a notice and if you don't respond, you're guilty. If you do want to fight it, it will take you enough effort and you'll almost always lose, so most people will just find it easier to send in the $50. This is going to be a nightmare for rental car companies (subsection 10).

It's unclear how this will apply to vehicles from other states and/or countries. Will DCJS (the agency handling the ticket) be able to find out who the owner is? For other states this might not be too hard, but for Canada and Mexico it might be a bigger problem.

Another big question is what happens if you don't pay? Nothing I've seen so far says they can suspend your license for not paying (as is common for regular speeding tickets). Do those suspension rules apply here? Can you be arrested for not paying? Do they enter a judgment against you in the County Clerk's office?

The real idea here is obvious to me. The speed camera law is designed so that people will not fight their tickets and will just pay the fines. They're hoping the system will be cheap to run and will generate lots of revenue. For example, there'd be no overtime for police coming to Court.

My suggestion is that everyone should at least challenge submit the written challenge (subsection 8), so that they have to hire as many "liability review examiners" as possible and work them to death.

Figure 60 speed cameras writing an average of 6 tickets an hour (one every ten minutes). Hmm. 360 tickets an hour. 8640 tickets a day. About 3 million a year. $50 a pop works out to an extra $150 million a year in revenue. If they can up it to 10 an hour, that's $260 million. If they go nuts and write 60 tickets an hour (one ticket every minute), that'd be well over $1 billion a year. Then, of course, in a couple years they'll up the fines to $100 for regular and $200 for work zones. Now we're talking real money.

Makes me think of the Bastille, and/or the Boston Tea Party. But will the peasants ever rise up against the Leviathan? Now I'm mixing way too many metaphors.

Credit to our senior associate, David Cooper, for uncovering this proposed law.

The text of the proposed § 1181-a, designated S.56/A.156 (Senate bill number 56, Assembly bill number 156) is below:

S. 56/A. 156

PART S P.42-46

§ 3. The vehicle and traffic law is amended by adding a new section

1181-a to read as follows:

§ 1181-a. Owner liability for operation in excess of certain posted speed limits.

1. Notwithstanding any other provision of law, and in accordance with this section, rules and regulations may be promulgated by the division of state police, the division of criminal justice services, and any agency, division or authority so designated by the division of state police, to establish a photo-monitoring program and to impose monetary liability on the owner of a vehicle that is operated in excess of a maximum speed limit in violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article for failing to obey posted speed limits in work zones and designated stretches of highway. The superintendent of state police shall determine the locations in which the photo-monitoring program shall be established in consultation with the commissioner of the department of transportation. No more than sixty operating photo-monitoring systems shall be in place at any given time. Signs alerting motorists to the presence of photo-monitoring devices shall be placed approximately three hundred yards in advance of the location of such device.

2. The owner of a vehicle shall be liable for a civil penalty imposed pursuant to this section if such vehicle was used or operated by the owner or was used or operated with the permission of the owner, express or implied, and operated in excess of a maximum speed limit in violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article and such violation is evidenced by information obtained from a photo-monitoring system, provided, however, that no owner of a vehicle shall be liable for a penalty imposed pursuant to this section where the operator of such vehicle has been charged with a violation of section eleven hundred eighty of this article for the same incident.

3. For purposes of this section, the term "owner" shall mean any person, corporation, partnership, firm, agency, association, lessor or organization who, at the time of the violation and with respect to the vehicle identified in the notice of liability:
(a) is the beneficial or equitable owner of such vehicle; or
(b) has title to such vehicle; or
(c) is the registrant or co-registrant of such vehicle which is registered with the department of motor vehicles of this state or any other state, territory, district, province, nation or other jurisdiction; or
(d) subject to the limitations set forth in subdivision ten of this section, uses such vehicle in its vehicle renting and/or leasing business; and includes (e) a person entitled to the use and possession of a vehicle subject to a security interest in another person. For purposes of this section, the term "photo-monitoring system" shall mean a vehicle speed sensor that automatically produces one or more photographs, one or more microphotographs, a videotape or other recorded images of vehicles traveling at the location of such device. For purposes of this section, the term "vehicle" shall mean every device in, upon or by which a person or property is or may be transported or drawn upon a highway.

4. A certificate, sworn to or affirmed by an agent of the division, agency or authority which charged that the violation occurred, or a facsimile thereof, based upon inspection of photographs, microphotographs, videotape or other recorded images produced by a photo-monitoring system shall be prima facie evidence of the facts contained therein and shall be admissible into evidence in any review of the liability for such violation.

5. An owner found liable for a violation of paragraph two of subdivision (d) of section eleven hundred eighty of this article pursuant to this section shall be liable for a monetary penalty of fifty dollars. An owner found liable for a violation of subdivision (f) of section eleven hundred eighty of this article pursuant to this section shall be liable for a monetary penalty of one hundred dollars.

6. An imposition of liability pursuant to this section shall be based upon a preponderance of evidence as submitted. An imposition of liability pursuant to this section shall not be deemed a conviction as an operator and shall not be made part of the motor vehicle operating record, furnished pursuant to section three hundred fifty-four of this chapter, of the person upon whom such liability is imposed nor shall it be used for insurance purposes in the provision of motor vehicle insurance coverage.

(a) A notice of liability shall be sent by first class mail to each person alleged to be liable, pursuant to this section, as an owner for a violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article. Such notice shall be mailed no later than forty-five days after the alleged violation except as provided in subdivision ten of this section. Personal delivery on the owner shall not be required. A manual or automatic record of mailing prepared in the ordinary course of business shall be prima facie evidence of the mailing of the notice.

(b) A notice of liability shall contain the name and address of the person alleged to be liable as an owner for a violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article, the registration number of the vehicle involved in such violation, the location where such violation took place, the date and time of such violation, the identification number of the photo-monitoring system that recorded the violation or other document locator number.

(c) The notice of liability shall also contain information advising the person charged of the manner and time in which such person may request a copy of the photographs, microphotographs, videotape or other recorded images produced by a photo-monitoring system and the certificate that charged that the violation occurred. Such request shall be submitted within forty-five days of mailing of the notice of liability.

(d) The notice of liability shall contain information advising the person charged of the manner and the time in which such person may challenge the liability alleged in the notice. Such notice of liability shall also contain a warning to advise the person charged that failure to answer or challenge in the manner and time provided shall be deemed an admission of liability and that a default judgment may be entered as a final decision of liability thereon.

(e) Failure to answer a notice of liability within forty-five days of mailing of the notice shall result in the entry of a default judgment and the immediate conversion of the notice of liability into a final decision of liability against the owner.

8. Review of a challenge to the liability imposed upon owners by this section shall be conducted by a liability review examiner. Liability review examiners shall be appointed by the commissioner of the division of criminal justice services and shall be employees of the division of criminal justice services. The commissioner of the division of criminal justice services may appoint as many liability review examiners as are needed for review of challenges to liability pursuant to this section, within amounts appropriated therefor. Written challenges to liability shall be submitted to the division of criminal justice services by owners within forty-five days of mailing of the notice of liability or within forty-five days of mailing of the photographs, microphotographs, videotape or other recorded images and the certificate, whichever is later. The commissioner of the division of criminal justice services shall promulgate rules and regulations governing the review of challenges to liability imposed upon owners pursuant to this section which shall, at a minimum, require a liability review examiner to inspect the photographs, microphotographs, videotape or other recorded images produced by a photo-monitoring system and the certificate, or any other written information the examiner deems relevant, review the owner's written challenge to liability and the accuracy of the information alleged in the notice of liability, and issue a final decision of liability within thirty days of receipt of the challenge.

9. If an owner receives a notice of liability pursuant to this section for any time period during which the vehicle was reported to the police department as having been stolen, it shall be a valid defense to an allegation of liability for a violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article that prior to the time of the violation, the vehicle had been reported to the police as stolen, and that it had not been recovered by such time. For purposes of asserting the defense provided by this subdivision it shall be sufficient that a certified copy of the police report on the stolen vehicle be sent by first class mail to the division having jurisdiction.

10. An owner who is a lessor of a vehicle to which a notice of liability was issued pursuant to subdivision seven of this section shall not be liable for the violation of paragraph two of subdivision (d) of subdivision (f) of section eleven hundred eighty of this article provided that he or she sends to the division serving the notice of liability a copy of the rental, lease or other such contract document covering such vehicle on the date of the violation, with the name and address of the lessee clearly legible, within thirty days after receiving the original notice of liability. Failure to send such information within such thirty day time period shall render the lessor liable for the penalty prescribed by this section. Where the lessor complies with the provisions of this subdivision, the lessee of such vehicle on the date of such violation shall be deemed to be the owner of such vehicle for purposes of this section and shall be subject to liability for the violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article, provided that the division mails a notice of liability to the lessee within thirty days after receiving such notice from the lessor. For purposes of this subdivision the term "lessor" shall mean any person, corporation, firm, partnership, agency, association or organization engaged in the business of renting or leasing vehicles to any lessee under a rental agreement, lease or otherwise wherein the said lessee has the use of said vehicle for any period of time. For purposes of this subdivision, the term "lessee" shall mean any person, corporation, firm, partnership, agency, association or organization that rents, leases or contracts for the use of one or more vehicles and has use thereof for any period of time.

11. Except as provided in subdivision ten of this section, if a person receives a notice of liability pursuant to this section it shall be a valid defense to an allegation of liability for a violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article that the individual who received the notice of liability pursuant to this section was not an owner of the vehicle at the time the violation occurred. If the owner liable for a violation of paragraph two of subdivision (d) or subdivision (f) of section eleven hundred eighty of this article pursuant to this section was not the operator of the vehicle at the time of the violation, the owner may maintain an action for indemnification against the operator.

12. Nothing in this section shall be construed to limit the liability of an operator of a vehicle for any violation of any provision of law.

13. Notwithstanding any other provision of law, all photographs, microphotographs, videotape or other recorded images prepared pursuant to this section shall be for the use of governmental agencies or authorities in the discharge of their duties and shall not be made available to the public except as expressly provided for in this section.

§ 4. This act shall take effect immediately.

Tuesday, December 09, 2008

Plaxico Burress - Are Hunting and Target Shooting Illegal in New York State?

Update: Thanks to George P. Conway for the comment. Penal Law §265.20 sets forth a list of exceptions. I'm not sure these exceptions clearly apply to loaded firearms. That would seem to be the natural conclusion, but it's not completely clear.
At the bottom of this post is an image of the first page of the felony complaint in the Plaxico Burress gun case. He's accused of violating Penal Law § 265.03, a Class C felony. The statute reads as follows:

§ 265.03. Criminal possession of a weapon in the second degree
A person is guilty of criminal possession of a weapon in the second degree when:
(1) with intent to use the same unlawfully against another, such person:
   (a) possesses a machine-gun; or
   (b) possesses a loaded firearm; or
   (c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this [fig 1] subdivision if such possession takes place in such person's home or place of business.

When this case first broke I couldn't figure out why he was being charged with a felony. I heard someone say that the law had recently been amended.

Here's the deal. Subsection (3) was added in 2006, effective November 1, 2006. The new law makes it illegal to possess a loaded firearm, except in your own home or business.

Um ... does that mean it's now a felony to hunt or target shoot with a firearm in New York State? How does this apply to those who have a valid pistol license under Penal Law §400? You can carry a pistol, but you can never load it?

§265.03 used to include only the first two paragraphs. What I suspected was that Burress was charged with the "intent to use unlawfully against another." And the complaint below does indicate that. I'm not sure how shooting yourself in the leg by accident fits with intent to use against someone else, but that apparently doesn't matter now that we have Subsection (3).

The next question for Plaxico's lawyers is whether §265.03(3) violates the Second Amendment. Since the US Supreme Court now acknowledges the right to keep and bear arms (RKBA) as an individual right, that's going to create a lot of issues in New York.

One thing you hear about the Burress case is that he did not have a NY pistol license. But residents of other states cannot get a NY license. Penal Law §400(3)(a) spells out the application process:
Applications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper;

If you don't reside in the state, or are not principally employed in the state (Plax resides and works in NJ), then there is no applicable city or county. This creates two constitutional issues. The obvious one is the Second Amendment. But there's also a Privileges and Immunities clause issue - a state must accord the same privileges and immunities to residents of other states that it provides to its own residents. If the state provides a way for residents to get a license, then it should provide a way for non-residents to get a license as well.

A guy named David Bach challenged this issue back in 2003 and lost, but the District Court there relied on the notion that the Second Amendment does not create an individual right. The Second Circuit did not address it that way, holding instead that ""the Second Amendment's "right to keep and bear arms" imposes a limitation on only federal, not state, legislative efforts. Bach v. Pataki, 408 F.3d 75 at page 84. It is unclear whether that analysis holds up in light of DC v. Heller, the recent Supreme Court decision.

I'm still interested in knowing how this applies to all the hunters and target shooters in New York State. Is there some other exemption that doesn't appear in §265.03?

Profile: The Master

Here's another Albany lawyer profile. Keep in mind these are generally semi-fictional.

The Master is one of the top criminal defense attorneys in the Albany area. All the judges, cops and criminal lawyers know his name, but not everyone recognizes him on sight. He flies just below the public radar. His name does get in the paper every once in a while, but he doesn't knock people over in order to get on camera.

He's been doing this for a while. As far back as two decades ago he was already well respected by those in the know. In some ways he's like the Michael Clayton character. He knows how to talk to cops, and they respect him. Maybe it's because they want a good relationship with him in case they get in trouble. Sometimes he can resolve the case before his client is even arrested. But he's more than that. He can walk into a courtroom and do as well as anyone else, and better than most. Also like Clayton, he probably has a dark side. Whatever it is he keeps it well hidden and under control.

Talking to the Master, you get the feeling he learned from great lawyers early in his career. He's something of a throwback. He seems unconcerned with the business side of being an attorney. In the old days you did good legal work and the business came. It still works for him.

He's gone beyond those teachings though. It's as if lawyering was a martial art, and he's developed his own forms. He really does have a certain karma or magnetism - maybe he's studied Zen or something. He even has a little bit of Yoda in his face. Along the way he's picked up just about every little trick there is, and he's created some new ones. Each technique on its own doesn't amount to much, but he's got thousands of them. He probably couldn't list them all himself - he just feels the situation and applies the right tactic at the right moment. Add them all together and it matters. For others a case might seem unwinnable. But for the Master, every step in the process is an opportunity to catch the police and prosecutors in a mistake. He turns the impossible cases into 50-50 shots.

In a world where so many lawyers help their clients plead guilty, it's nice to see another lawyer who fights. He probably should have some disciples.

Sunday, December 07, 2008

Florida Speeding Tickets

Just added a page to the Redlich Law Firm website about Florida speeding tickets There seems to be a lot of tickets written there, so much so that I saw a TV show (or internet version of a TV show) about one of the traffic courts there.

Interesting thing for us concerns how we handle NY tickets for Florida drivers. A common reduction on speeding tickets in NY is the infamous 1110a. This appears to count for more points in Florida than a simple speed. NY lawyers who represent FL drivers should be careful about that.

Saturday, December 06, 2008

DWI Defense Perspectives

I had the honor of speaking at a DWI seminar this past week. There were some excellent speakers, and a few of us presented a sharp contrast on how to handle DWI cases.

My topic was low BAC cases. I talked about some things lawyers can do when the defendant's blood-alcohol content is low. Mainly I was focused on BACs below 0.10, but some of the ideas apply when the BAC is up to maybe 0.12. My position was and is that defendants should always fight low BAC cases. I talked about a number of reasons why these cases should be fought, and about specific ways the defense can attack them.

My favorite point here regards "field sobriety tests" (where the police wave a pen in front of your eyes, have you walk a line, and have you stand on one leg, etc.). You can get the FST manual from the feds: Field Sobriety Test Manual. The "participant manual" is the one you want. The manual says that the tests are "highly reliable" indicators as to whether the subject has a BAC over 0.10. My personal opinion is that these tests are bogus, but if you believe they are scientific, that has a real meaning when the BAC ends up at 0.10 or lower.

If the subsequent chemical test (breath or blood) shows a BAC of 0.08 for example, then the defendant should have passed the FSTs. In most cases I've seen the defendant fails all the FSTs. I've seen this with a BAC as low as 0.05. Since the FSTs are the bulk of the supposed proof of probable cause for arrest, then a BAC below 0.10 means that the FSTs were done incorrectly (which you also show on cross of the police officer during the suppression hearing).

Two other speakers presented rather different perspectives on handling DWI cases. Both were there to talk about plea bargaining. One went into great detail on the various issues you can bring up in the course of plea bargaining to show why this particular defendant should get a deal. The talk was pretty good not only for DWI cases but for criminal defense in general.

The other speaker was focused on the plea bargaining policies we're seeing more and more. In many cases the offer is to plead guilty. He was very matter of fact about it, and had an excellent point about how clients just want to get the case resolved and put it behind them. He stressed the importance of making sure your client understands all the consequences and how the lawyer not preparing them in that way makes them unhappy with the lawyer and the result. Bad for business.

The sharpest contrast was between me and the two of them. There I was advocating for fighting these cases and they treated fighting a case as an afterthought. At one point the final speaker even said that the chance of winning a high BAC case is "1 in 100".

I disagree. We have been winning quite a bit more than that. As a ballpark I'd say we win half of our DWI cases. And some of the ones we don't win are because the client gives up. They really do want to get their case over with quickly and get it behind them. It's important to make sure your client understands how long it can take, and all the consequences they'll have to endure while the case is pending.

One way of getting better deals is the friendly approach. If you get along well with the prosecutors and judges, if you have the right political connections, and if you do your homework (as the 2nd speaker described), this can lead to better deals. But this will not work too well when there are policies in place like we now have in DWI cases, or where (as the 3rd speaker mentioned) the case has gotten media attention.

The other way of getting better deals is by fighting and winning. Prosecutors are overworked. They don't want more work and having to do hearings and trials is a lot more work. Some of them do enjoy the challenge, but many are just tired and want to go home. They don't have the time to prepare for the case as well as the defense lawyer. The prosecutor walks into court with a hundred cases, while the defense lawyer has just one.

The other thing about prosecutors is, like the rest of us, they don't like losing. If a lawyer fights and wins repeatedly, prosecutors are going to get tired of losing to him or her. It's difficult in cases where there is a policy governing the plea process.

My view, and the view of defense lawyers who fight, is that where the offer is to plead guilty to the offense charged, that's not a plea bargain. It's a plea, but it's not a bargain. My client can plead guilty without a deal. They don't even need me for that. But I didn't make this stuff up. I learned it in DWI seminars past.

Tuesday, December 02, 2008

More Verizon and Debt Collection

I've written in the past about Verizon and their debt collection practices. They're back again.

I got a call this morning about an old disputed cell phone bill. The caller said she was from NES. I'm thinking this is Nintendo calling trying to sell me a Wii, but no. NES stood for something else, National something Systems?

So she tells me this is about my "debt" of $473. She tries to intimidate me by telling me my social security number and asking me if it's correct. I refused to answer that one of course. Then she tells me she knows I'm self-employed. I'm not sure what that has to do with anything. All of this, of course, in a nasty tone.

Meanwhile I'm laughing throughout the call. I asked her how old this debt was. She answers "2001". So it gets even funnier for me, since the statute of limitations on breach of contract is 6 years. I suppose I should find these calls scary but it's really just pathetic.

The underlying story is this: I switched from Verizon Wireless to Sprint because I wanted a Palm Treo smartphone and Verizon didn't sell it. Verizon sends me a bill for my monthly usage (about $130), and two termination fees of $170 each. I figured I was responsible for "a" termination fee, not termination fees. I called Verizon to try to resolve the issue. They said the fee was per line, and we had two lines.

Well, I didn't agree to pay two termination fees. I only agreed to pay "a" termination fee. I asked her to send me proof that I'd agreed to this. She mailed me something that said "a termination fee may apply" in big bold print on the front, and I did see that in a microfont on the back it said "per line."

I didn't think that was fair and said I'd pay the $300 I owed but I refused to pay the extra $170. Verizon refused to accept my $300. Okay.

It's been over six years now and they can't get over it. At this point, of course, I wouldn't pay a dollar to get rid of this. I was willing to pay what was fair back then, but after six years of harassment I'm not paying anything. I suppose it should be annoying me but instead it's just too darn funny.

What's really wrong about this is that they do it to regular people who don't know enough to laugh off the calls.

Monday, December 01, 2008

Keith Olbermann on Gay Marriage

I've always wondered why discrimination against gays isn't inherently gender discrimination. It's okay for Jim to marry Mary, but not to marry John. Isn't that discrimination against John because of his gender?

But below is an argument for gay marriage by Keith Olbermann. Powerful stuff.