It never fails to amaze me. People will call me at the last minute before they have to show up for trial. Today I just got a call about a trial 100 miles away on Thursday morning. It's Tuesday afternoon now.
Here's the deal. If you got a ticket, hire a lawyer right away. I charge less money, take care of more of it for you, make sure the whole process is done right, and save you a lot of trouble.
If you call me later, my fee may be higher (if I have to adjust my schedule), and I have to deal with the mistakes you made along the way (like pleading guilty or asking for a supporting deposition). Save money and get it done right. Hire a traffic lawyer right away.
Tuesday, May 16, 2006
Another lawyer blog
I was just contacted by another NY lawyer who has a blog. His blog is http://www.jamestownlawyer.blogspot.com. I enjoyed reading it and recommend it.
Saturday, May 13, 2006
New York DMV - Negative Units
A NY DMV friend and I were just talking about the "negative unit" system. Down below I've pasted 15 NYCRR 136.6, which contains the scoring of negative units for safety factors. I'm not sure it will line up right, but we'll see. The first number is the number of units during the period from 1-3 years after you get them. The second number is how many you have in the first year.
Apparently in some circumstances you can denied reinstatement or relicensing, if you have too many negative units (more than 25 pursuant to § 136.4(a)(3). In other words, you get revoked (say for a DWI, youth DWAI, or too many points/speeds). The revocation period ends and you apply for your license back. DMV doesn't send you back your license, because you have too many negative units. The one-year revocation you thought you had turns out to be longer than you thought.
The DMV website lists the point system, but not the negative unit system. Very interesting and I hope to learn more about this. Please post comments if you have any thoughts.
15 NYCRR 136.6
Section 136.6 Weighing of safety factors.
(a) There shall be assigned to each safety factor a negative unit as follows:
Safety factor Assigned negative units
over one year within one
to three year of
years of application
application
(1) for each reportable accident of record with a --5 --8
finding by the referee of gross negligence in
the operation of a motor vehicle in a manner
showing a reckless disregard for the life and
property of others
(2) for each reportable accident of record with --3 --4
conviction involvement or with a finding by the
referee of a violation of the Vehicle and
Traffic Law
(3) for the first and second speeding conviction --3 --4
of record [FNa1]
(4) for the third and subsequent speeding --5 --8
conviction [FNa1]
(5) for reckless driving --5 --8
(6) for each conviction of record for leaving the --8 --11
scene of a personal injury accident of record
(7) for each alcohol-related offense of record as
follows:
(i) conviction for violation of subdivision (1)
of section 1192 of the Vehicle and Traffic Law:
first offense --5 --8
-------------------------------------------------------------------------------
second offense --8 --11
third or subsequent offense --11 --14
(ii) conviction for violation of subdivision (2),
(3) or (4) of section 1192 of the Vehicle and
Traffic Law:
first offense --8 --11
second or subsequent offense --11 --14
(iii) chemical test refusal --6 --11
(8) for each conviction of homicide, criminally --11 --14
negligent homicide, or assault arising out of
the operation of a motor vehicle
(9) (i) for each incident of driving during a --10 --12
period of alcohol-related license suspension or
revocation
(ii) for each other incident of driving during a --8 --10
period of license suspension or revocation
(10) for each conviction or finding by the --3 --4
commissioner's referee of a violation of
section 392 of the Vehicle and Traffic Law
(11) for each other conviction of record for a --2 --3
moving violation
[FNa1] For each speeding violation of 25 miles per hour or more over the posted
speed limit, add one point.
(b) The point reduction program shall not apply to any of the negative units listed in subdivision (a) of this section.
(c) For the purpose of this Part, the time periods for the computation of safety factors shall commence as of the date on which the incident occurred.
(d) In any case where two or more safety factors which are not independent of each other arise out of a single incident, only one of these safety factors shall be taken into consideration in a review of the total record. The safety factor which shall be taken into consideration in these cases shall be the safety factor having the greater weight, except that where two safety factors are of equal weight, either one may be taken into consideration.
Examples: (1) Where an accident and a conviction for reckless driving arise out of the same incident, only the reckless driving conviction, which is the safety factor having the greater weight, is considered in a review of the total record, because these safety factors are not independent of each other.
(2) Where a first conviction of subdivision 2 of section 1192 of the Vehicle and Traffic Law and a finding of a chemical test refusal arise out of the same incident, only one of these two safety factors having equal weight is considered in a review of the total record because these safety factors are not independent of each other.
(3) Where a person is convicted of reckless driving and the incident occurred during a period of license revocation, both of these safety factors shall be taken into consideration in a review of the total record, because these safety factors are independent of each other.
(4) Where a person is convicted of speeding and failure to keep right, where both violations occurred at the same time, both of these safety factors shall be taken into consideration, because these safety factors are independent of each other.
Apparently in some circumstances you can denied reinstatement or relicensing, if you have too many negative units (more than 25 pursuant to § 136.4(a)(3). In other words, you get revoked (say for a DWI, youth DWAI, or too many points/speeds). The revocation period ends and you apply for your license back. DMV doesn't send you back your license, because you have too many negative units. The one-year revocation you thought you had turns out to be longer than you thought.
The DMV website lists the point system, but not the negative unit system. Very interesting and I hope to learn more about this. Please post comments if you have any thoughts.
15 NYCRR 136.6
Section 136.6 Weighing of safety factors.
(a) There shall be assigned to each safety factor a negative unit as follows:
Safety factor Assigned negative units
over one year within one
to three year of
years of application
application
(1) for each reportable accident of record with a --5 --8
finding by the referee of gross negligence in
the operation of a motor vehicle in a manner
showing a reckless disregard for the life and
property of others
(2) for each reportable accident of record with --3 --4
conviction involvement or with a finding by the
referee of a violation of the Vehicle and
Traffic Law
(3) for the first and second speeding conviction --3 --4
of record [FNa1]
(4) for the third and subsequent speeding --5 --8
conviction [FNa1]
(5) for reckless driving --5 --8
(6) for each conviction of record for leaving the --8 --11
scene of a personal injury accident of record
(7) for each alcohol-related offense of record as
follows:
(i) conviction for violation of subdivision (1)
of section 1192 of the Vehicle and Traffic Law:
first offense --5 --8
-------------------------------------------------------------------------------
second offense --8 --11
third or subsequent offense --11 --14
(ii) conviction for violation of subdivision (2),
(3) or (4) of section 1192 of the Vehicle and
Traffic Law:
first offense --8 --11
second or subsequent offense --11 --14
(iii) chemical test refusal --6 --11
(8) for each conviction of homicide, criminally --11 --14
negligent homicide, or assault arising out of
the operation of a motor vehicle
(9) (i) for each incident of driving during a --10 --12
period of alcohol-related license suspension or
revocation
(ii) for each other incident of driving during a --8 --10
period of license suspension or revocation
(10) for each conviction or finding by the --3 --4
commissioner's referee of a violation of
section 392 of the Vehicle and Traffic Law
(11) for each other conviction of record for a --2 --3
moving violation
[FNa1] For each speeding violation of 25 miles per hour or more over the posted
speed limit, add one point.
(b) The point reduction program shall not apply to any of the negative units listed in subdivision (a) of this section.
(c) For the purpose of this Part, the time periods for the computation of safety factors shall commence as of the date on which the incident occurred.
(d) In any case where two or more safety factors which are not independent of each other arise out of a single incident, only one of these safety factors shall be taken into consideration in a review of the total record. The safety factor which shall be taken into consideration in these cases shall be the safety factor having the greater weight, except that where two safety factors are of equal weight, either one may be taken into consideration.
Examples: (1) Where an accident and a conviction for reckless driving arise out of the same incident, only the reckless driving conviction, which is the safety factor having the greater weight, is considered in a review of the total record, because these safety factors are not independent of each other.
(2) Where a first conviction of subdivision 2 of section 1192 of the Vehicle and Traffic Law and a finding of a chemical test refusal arise out of the same incident, only one of these two safety factors having equal weight is considered in a review of the total record because these safety factors are not independent of each other.
(3) Where a person is convicted of reckless driving and the incident occurred during a period of license revocation, both of these safety factors shall be taken into consideration in a review of the total record, because these safety factors are independent of each other.
(4) Where a person is convicted of speeding and failure to keep right, where both violations occurred at the same time, both of these safety factors shall be taken into consideration, because these safety factors are independent of each other.
Criminal Defense: The Show-Up Identification
Most people are familiar with the "line-up" process used by police, where a witness is brought in to identify the suspect. Six people who generally fit the description are lined up. One is the suspect. The witness is not told which one. The witness views all six, and attempts to identify which one is the person he/she observed at the crime scene. That's what you see on TV.
There's another process. I was completely unaware of this until my current case. So it's probably new to most of you.
It's called the show-up identification. If a suspect is caught near the crime scene, the witness is brought from the crime scene to the scene of the arrest.
There's a lot of cases on this. They always start off talking about how this method is disfavored because it is so much more unreliable than the line-up. And then almost all of the cases say "but in this case it's okay because ...." There's so many excuses that, in lawyer's parlance, the exceptions have eaten the rule.
I'd be rolling on the ground laughing if my client wasn't facing a potential life sentence.
One reasonable thing about it is the supposed purpose - in case the police have the wrong guy, the show-up identification allows that person to be released quickly, and allows the officers to continue searching for the real perpetrator. Conversely, a positive ID allows the police to call off their search.
All of which would be fine and dandy if that was the real purpose of the show-up identification. Since the real purpose is to avoid having to do a line-up, and to get a positive ID on the suspect regardless of actual guilt (the show-up is so suggestive that the witness will almost always say "that's the guy"), I think the process is total bunk.
And since many criminal court judges seem to bend over backward to let the police and prosecution do whatever they want (I'm a little biased here), they get away with it.
Why is the show-up suggestive?
In a line-up the witness is asked if they can identify the perp from a group of six similar looking people.
In a show-up, the witness is shown the suspect, generally in cuffs and surrounded by police, and asked "That's him, isn't it?"
Anyway, there are a lot of cases on this. A recent case with a defendant named "Brisco" went on appeal all the way to NY's Court of Appeals, which affirmed. Then Mr. Brisco filed for habeas in federal court, and was let out by the federal judge. The federal judge analyzed and discussed the process in extremely thorough detail, to a far greater extent than the appellate courts did. The case is Brisco v. Phillips, 376 F.Supp.2d 306 (EDNY 2005). Every criminal defense lawyer should read it. It would be nice if judges, police and prosecutors read it too, especially if they care about protecting constitutional rights.
Constitution Schmonstitution. :-)
There's another process. I was completely unaware of this until my current case. So it's probably new to most of you.
It's called the show-up identification. If a suspect is caught near the crime scene, the witness is brought from the crime scene to the scene of the arrest.
There's a lot of cases on this. They always start off talking about how this method is disfavored because it is so much more unreliable than the line-up. And then almost all of the cases say "but in this case it's okay because ...." There's so many excuses that, in lawyer's parlance, the exceptions have eaten the rule.
I'd be rolling on the ground laughing if my client wasn't facing a potential life sentence.
One reasonable thing about it is the supposed purpose - in case the police have the wrong guy, the show-up identification allows that person to be released quickly, and allows the officers to continue searching for the real perpetrator. Conversely, a positive ID allows the police to call off their search.
All of which would be fine and dandy if that was the real purpose of the show-up identification. Since the real purpose is to avoid having to do a line-up, and to get a positive ID on the suspect regardless of actual guilt (the show-up is so suggestive that the witness will almost always say "that's the guy"), I think the process is total bunk.
And since many criminal court judges seem to bend over backward to let the police and prosecution do whatever they want (I'm a little biased here), they get away with it.
Why is the show-up suggestive?
In a line-up the witness is asked if they can identify the perp from a group of six similar looking people.
In a show-up, the witness is shown the suspect, generally in cuffs and surrounded by police, and asked "That's him, isn't it?"
Anyway, there are a lot of cases on this. A recent case with a defendant named "Brisco" went on appeal all the way to NY's Court of Appeals, which affirmed. Then Mr. Brisco filed for habeas in federal court, and was let out by the federal judge. The federal judge analyzed and discussed the process in extremely thorough detail, to a far greater extent than the appellate courts did. The case is Brisco v. Phillips, 376 F.Supp.2d 306 (EDNY 2005). Every criminal defense lawyer should read it. It would be nice if judges, police and prosecutors read it too, especially if they care about protecting constitutional rights.
Constitution Schmonstitution. :-)
Speeding ticket fines: Is NY the highest?
I got a call from Ontario the other day. Woman was charged with 96 mph in a 65 mph zone. I gave her the bad news. Maximum fine is $600. $55 mandatory surcharge. On top of that the DMV "Drivers Responsibility Assessment" is $450, for getting 8 points within 18 months. Total of about $1100.
Her response: "New York is brutal."
A while back I looked at NJ fines, and I think they top out at about $250. The insurance rates there are the big deal. So I'm wondering if NY is the worst. Perhaps my readers can help out with this one? I still can't believe I have readers. :-)
The DMV assessment is new as of 11/18/2004. Apparently the State was trying to raise revenue, and its initial plan was to take the ticket revenue away from the towns. That didn't go over well, so they came up with this idea.
So really it's just another set of taxes. A completely unfair, arbitrary and brutal set of taxes. It does make it easier for me to sell my services, but it still ain't right.
Her response: "New York is brutal."
A while back I looked at NJ fines, and I think they top out at about $250. The insurance rates there are the big deal. So I'm wondering if NY is the worst. Perhaps my readers can help out with this one? I still can't believe I have readers. :-)
The DMV assessment is new as of 11/18/2004. Apparently the State was trying to raise revenue, and its initial plan was to take the ticket revenue away from the towns. That didn't go over well, so they came up with this idea.
So really it's just another set of taxes. A completely unfair, arbitrary and brutal set of taxes. It does make it easier for me to sell my services, but it still ain't right.
More on speeding tickets for out-of-state drivers
Out of state drivers continue to get speeding tickets in NY. Back in October I posted a few times about how this can affect them in their home states.
They keep calling. I've had some more call from Pennsylvania recently. Speeders from NJ and MA continue to call as well.
So far it seems that most states recognize NY speeding tickets, so most out-of-state drivers benefit from having a NY lawyer get them a reduction. In one case I got a call from a Delaware driver. He had pled guilty to a ticket for 85 in a 55 zone here in NY. Delaware suspended his license. Ouch!
For most tickets, we are able to get reductions to non-speeding violations that either don't show up at all in the home state or have a lesser impact if they do show up. I've never had a client call back and report that a reduction I've gotten them did show up. (Update: As of 6/23/2007 we have had one client (out of hundreds) report that a NY 1110(a) showed up on his NJ record and it counted for 2 points. We now shoot for 1175 of the V&T Law - we have seen a similar violation on an NJ record with no points).
If you're ticketed for a high enough speed, we're probably not getting you out of speed. But as our Delaware friend learned, we may save your license. And in any event, with high speeds in NY, we will save you more money on fines than we charge you.
They keep calling. I've had some more call from Pennsylvania recently. Speeders from NJ and MA continue to call as well.
So far it seems that most states recognize NY speeding tickets, so most out-of-state drivers benefit from having a NY lawyer get them a reduction. In one case I got a call from a Delaware driver. He had pled guilty to a ticket for 85 in a 55 zone here in NY. Delaware suspended his license. Ouch!
For most tickets, we are able to get reductions to non-speeding violations that either don't show up at all in the home state or have a lesser impact if they do show up. I've never had a client call back and report that a reduction I've gotten them did show up. (Update: As of 6/23/2007 we have had one client (out of hundreds) report that a NY 1110(a) showed up on his NJ record and it counted for 2 points. We now shoot for 1175 of the V&T Law - we have seen a similar violation on an NJ record with no points).
If you're ticketed for a high enough speed, we're probably not getting you out of speed. But as our Delaware friend learned, we may save your license. And in any event, with high speeds in NY, we will save you more money on fines than we charge you.
Wednesday, May 03, 2006
Lawyer joke
My trial today reminded me of a good lawyer joke:
The jury is brought in for the verdict. The defendant and his attorney are standing as the foreperson announces "Not Guilty". The defendant whispers "Thank you Jesus".
The attorney leans over and whispers:
"My name is Warren, and you're welcome."
The jury is brought in for the verdict. The defendant and his attorney are standing as the foreperson announces "Not Guilty". The defendant whispers "Thank you Jesus".
The attorney leans over and whispers:
"My name is Warren, and you're welcome."
Not Guilty!
Some time ago I discussed representing innocent criminal defense clients. I briefly mentioned a case, and we just got the verdict today: Not Guilty!
The client was originally charged with Grand Larceny for allegedly "stealing" (quotes for a reason) a capuccino machine from the place where he worked. The biggest problem for the prosecution is that he did not steal the item. He gave it to a customer. Testimony from the various witnesses left some issues unclear, but it was pretty clear that employees had been told to throw out garbage in a particular area (to make room for something new), and the client thought this item was garbage. It had not been used in the entire time he worked there and it was covered with dust.
Unlike my experience in a vaguely similar case in another county, the prosecutors here recognized early that they did not have the best case. One of the local prosecutors consented to a fairly low bail in a brief phone call. The prosecutor who was then assigned was very cooperative. He dropped the case to a misdemeanor. He offered reasonable deals from the very beginning. He provided me with all the information he had without the need for any formal discovery process (which saved my client roughly $1000 in fees).
The client insisted on getting a jury verdict. I find this a strong indicator of innocence - when a client refuses good offers from the prosecution. Guilty clients are generally looking for a deal. Give them anything with no jail time and they'll jump at it. When your client rejects an ACOD (effectively a dismissal, but not "on the merits"), that's a good sign the client believes in his own innocence. Unfortunately you can't tell the jury about this.
So we had the trial. The judge and the prosecutor were both very professional. The prosecutor did his best with the case he had. The client took the stand at the end and did very well. I thought he sounded a bit canned (like he practiced certain lines too much) on my direct questioning, but he did a good job of making eye contact with the jury. He was fantastic on cross. The prosecutor had built the case on the theory that he was a disgruntled employee who was trying to damage the employer. "I wasn't disgruntled - I had just gotten a raise." I almost wish I had prepped him to do that, but it was simply the truth and he said it in such a matter of fact way.
I should mention that, while I enjoyed working with the judge and prosecutor, I didn't agree with everything they did. I think the prosecutor should have agreed to a dismissal on the merits early on. I also disagree with a number of the judge's trial rulings. But then again, I don't have their job and I'm highly biased on this because it was my case. It was a pleasure to work with them and it is the hallmark of good lawyers and judges to have such disagreements and work through them politely while treating each other with respect.
The client was originally charged with Grand Larceny for allegedly "stealing" (quotes for a reason) a capuccino machine from the place where he worked. The biggest problem for the prosecution is that he did not steal the item. He gave it to a customer. Testimony from the various witnesses left some issues unclear, but it was pretty clear that employees had been told to throw out garbage in a particular area (to make room for something new), and the client thought this item was garbage. It had not been used in the entire time he worked there and it was covered with dust.
Unlike my experience in a vaguely similar case in another county, the prosecutors here recognized early that they did not have the best case. One of the local prosecutors consented to a fairly low bail in a brief phone call. The prosecutor who was then assigned was very cooperative. He dropped the case to a misdemeanor. He offered reasonable deals from the very beginning. He provided me with all the information he had without the need for any formal discovery process (which saved my client roughly $1000 in fees).
The client insisted on getting a jury verdict. I find this a strong indicator of innocence - when a client refuses good offers from the prosecution. Guilty clients are generally looking for a deal. Give them anything with no jail time and they'll jump at it. When your client rejects an ACOD (effectively a dismissal, but not "on the merits"), that's a good sign the client believes in his own innocence. Unfortunately you can't tell the jury about this.
So we had the trial. The judge and the prosecutor were both very professional. The prosecutor did his best with the case he had. The client took the stand at the end and did very well. I thought he sounded a bit canned (like he practiced certain lines too much) on my direct questioning, but he did a good job of making eye contact with the jury. He was fantastic on cross. The prosecutor had built the case on the theory that he was a disgruntled employee who was trying to damage the employer. "I wasn't disgruntled - I had just gotten a raise." I almost wish I had prepped him to do that, but it was simply the truth and he said it in such a matter of fact way.
I should mention that, while I enjoyed working with the judge and prosecutor, I didn't agree with everything they did. I think the prosecutor should have agreed to a dismissal on the merits early on. I also disagree with a number of the judge's trial rulings. But then again, I don't have their job and I'm highly biased on this because it was my case. It was a pleasure to work with them and it is the hallmark of good lawyers and judges to have such disagreements and work through them politely while treating each other with respect.
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