Thursday, July 30, 2009

NY DWI, Crawford and Melendez-Diaz

It looks like NY DWI cases will become more interesting in light of Melendez-Diaz (129 S.Ct. 2527), which just came down from the Supreme Court in late June. That case follows on the 2004 Crawford (541 US 36, 124 S.Ct. 1354) decision on the Confrontation Clause in the Sixth Amendment.

The defendant in a criminal case has the right to confront his accusers. Melendez-Diaz holds that lab technicians who certify things like the nature and quantity of a substance (cocaine in the case) are subject to Crawford. The prosecution merely offered a certificate from the lab without bringing the actual technician. Since the defense did not have the opportunity to confront and cross-examine these witnesses, the evidence should not have been allowed and the conviction was reversed.

This matters for DWI cases in New York. It is routine for the prosecution to rely on certificates to prove that the breath test device (commonly called a breathalyzer but in NY most police use a "Datamaster") is reliable. This includes not only calibration of the device, but also of the "reference solution." Per Melendez-Diaz, the prosecution will now have to bring in the individual who did these calibrations, so the defendant can cross-examine that person.

For those who might argue that this doesn't apply to this kind of DWI evidence, Justice Scalia's opinion squarely addresses this (129 S.Ct. at 2533):
As the dissent notes, three state supreme court decisions from the early 20th century denied confrontation with respect to certificates of analysis regarding a substance's alcohol content. ... But other state courts in the same era reached the opposite conclusion.

Thus, in rejecting the dissent's arguments, Scalia specifically noted the situation with certificates regarding alcohol tests -- this is exactly what the reference sample is, and is also analogous to the calibration of the device. DWI defense lawyers should be ready to argue Melendez-Diaz in suppression hearings and at trial. This should really come up in a pre-trial Ayala hearing.

Wednesday, July 22, 2009

Do Points Transfer? Out-of-state tickets are not that simple ...

If you have a ticket in New York, please check out our New York Traffic Lawyer page.
This is one of the most common questions we get: Do points transfer? Or: "Will the points transfer to my home state?"

The short and misleading answer is No. The points themselves do not transfer to other states.

So what does happen? In most situations, the state where you got the ticket will report any conviction to your home state. Your home state might then assign points to the violation according to its own rules.

Example: You are an Ontario driver and you get a speeding ticket in New York State, for going 85 mph in a 65 mph zone.

If you plead guilty or are convicted at trial of the 85/65, it will count for 4 points against you in NY. NY will report to Ontario. Ontario will count it against you per the Ontario system. 20 mph over the limit is about 32 km over the limit. In Ontario, 31-45 km over is 4 points.

If it had been 80/65, then it would still be 4 points in NY, but only 3 points in Ontario.

If your lawyer (yes, that's a hint) gets the ticket reduced to something less, there's a good chance it won't count for points against you in Ontario. A speed of 15 km (9 mph) or less in Ontario is no points, even though it would be 3 points in NY.

Different states handle tickets from other places differently. Quebec and Ontario recognize NY tickets and maybe tickets from a couple other states. Most other Canadian provinces do not recognize NY tickets. Maybe BC recognizes WA tickets?

New Jersey recognizes out-of-state tickets, and they generally count for 2 points there, no matter how many points they are in the state where you got the ticket. Could be a 3-point or 11-point speed in NY? Either way, 2 points in NJ. Your lawyer (again, a hint) may be able to get you a deal to something that doesn't count for points in NJ.

NY generally does not recognize out-of-state speeding tickets. I've been told it does recognize tickets from Quebec and Ontario. We have seen a Quebec speeding ticket on a NY driving record and we have seen out-of-state DUIs as well.

Florida recognizes out-of-state tickets. One common deal NY lawyers get for drivers is actually more points in FL than a low speed. So make sure you ask the lawyer you call what deal they think they can get for you in NY and how it will affect you in FL.

North Carolina is one of the trickiest. A speeding ticket that might be considered minor in NY could get you suspended in NC. Watch out! Virginia can also be difficult.

Every state is different and there can be many complications. So you might want to discuss this with a lawyer in the state where you got the ticket, and maybe with a lawyer in your home state as well.

And don't ask: "Do the points transfer?" It's not the right question. You should ask: "How will this affect me in my home state?"

Update: See new post on Out of state tickets for Maine drivers.

Wednesday, July 01, 2009

Short URLs

Making life easier for phone calls with clients. We registered a new domain name: It's quicker to tell them that than And the domain just redirects to our traffic page.