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.

Friday, November 21, 2008

Profile: The Glory Hound

The following is another in my occasional Profiles in the Albany NY legal community. Keep in mind these are generally semi-fictional.

The Glory Hound is well known to most attorneys in the area. He is a vigorous promoter of both himself and a cause or two. He brims with self-confidence. Listening to him, he has inside knowledge about all the movers and shakers at the local, state and federal level. This one's a drunk but hides it well; that one's a drunk and doesn't hide it well; another one is having an affair and her spouse threw her out of the house; and so on. At times it seems hard to believe he can be so well-connected in so many places. And yet his comments sometimes turn out to be true. Maybe it's not just ego, or maybe he really is connected??

As the name suggests, the Glory Hound is obsessed with getting press and with people reading whatever is written about him. He expresses disappointment if you didn't read that article about him in today's paper - even if it's an obscure local paper that he shouldn't expect you to read. He craves controversy, perhaps because it gets him more attention from the media.

He is not an idiot. The Glory Hound is well versed in the law. When you discuss cases with him he has good suggestions and asks the right questions. He may not be the best lawyer in the world, but he's no slouch in a courtroom. At times he seems to have lost touch with the lives of regular people, but he still has a lot of friends who believe in him. He is also quite charming.

Hated by some, loved by others, and puzzling to many, the Glory Hound is hard to be sure about. Is he as rich as he claims he is? Does he really know all those people? What makes him tick? He should probably write an autobiography to answer these questions and many others. And given his need for attention, it's surprising he hasn't written it already.

This is not meant as an attack. When I see him, a smile comes to my face. I am drawn to him. He just has natural charisma. Maybe he's just more interesting than the average Joe, perhaps because he believes that himself so strongly.

And he probably wants me to put his name on this profile. :-)

Monday, November 17, 2008

Dewey Cheatham & Howe

Just came across this cool website - a play on the most famous fictional law firm, Dewey Cheatham & Howe. This is clearly the product of a demented mind. :-)

Saturday, November 15, 2008

Craig Watkins: A Great Prosecutor

Solid article in the Wall Street Journal today about a prosecutor in Dallas. Craig Watkins was elected DA there in 2006. He's made a name for himself by thoroughly reviewing dubious convictions and using DNA evidence for that purpose.

He actually created a unit within his office, the "Conviction Integrity Unit," to review cases. They've cleared six innocent men so far. Some of the article includes criticism of Watkins by other prosecutors.

I suppose this is no shock to anyone who reads my blog, but I think Craig Watkins is a model prosecutor. This is what every DA should do. I've seen plenty of cases where prosecutors won't back off of crappy cases. They ought to read what this guy is doing.

Friday, November 14, 2008

Costa Rica: Some Thoughts

Over the past few days I posted the details (and some photos) of our trip to Costa Rica. Now's the time for some reflection.

First, for those who want to read the posts in chronological order:
Day 0
Day 1
Day 2
Day 3

My first thought is that Costa Rica lived up to its billing. Great climate and lush greenery everywhere. The people really are friendly. The cost of living is very low, and I can see why so many Americans retire there. We talked to one couple who travel to Costa Rica because it's cheaper than Mexico. Fancy restaurants in Costa Rica cost less than everyday sitdown restaurants here in Albany, and the food is excellent.

The petty crime problem is a turn-off. In most of the US you can park your car and not worry about someone breaking into it. In CR it's apparently so common that you're an idiot if you leave anything in your car. This is a challenge for a country that is relatively poor (compared to us) and that has an admirable practice of avoiding too much incarceration.

Costa Rica seems to have everything going for it - a good education system, great climate, and so much more. But while their economy is fairly strong by Central American standards, they're still way behind us and well behind Mexico.

So what's different about Costa Rica that holds its economy back? The first thing that comes to my mind is infrastructure. It stands out most when it comes to the roads. Imagine driving on a major highway and having to stop for a one-lane bridge. They have a lot of these in Costa Rica. Nearly all their roads are one-lane each way.

Here in the US (and in Europe and Japan as well) infrastructure makes all of us more productive. It is far easier to get to Boston from Albany (170 miles) than it is to get from San Jose to Jaco (73 miles). All the time that Ticos (the nickname for Costa Ricans) spend in cars is time they could spend being productive.

You see infrastructure take different forms in different places. Here in the US a lot of it is roads. In Japan and Europe you see extensive train networks. And that's just the transportation infrastructure. I've read about significant power outages in CR (though we didn't see any). Power outages are pretty rare in the US, and I don't remember any when I lived in Japan. That's an infrastructure issue.

When I complain about government wasting our money on this blog, I usually don't complain about infrastructure projects. There was the infamous bridge to nowhere in Alaska. But it's important to realize that infrastructure investment has strong benefits. It doesn't have to be built by the government. In fact, they are building a new road in CR to the Jaco area, and it's being done by a private consortium who will get their money back by charging a toll. This might be a better way. But even if it's built by the government, it's better than blowing that money on misguided wars or other boondoggles.

I also get the sense that the "rule of law" is not followed as tightly as it generally is here in the US. I used to work for the Honorable Robert P. Best, a Justice of the Supreme Court in Fulton County. On Law Day (May 1st) he would talk about the importance of the rule of law. As I grow older and learn more in life, Judge Best just keeps getting smarter.

Having sensible laws that are enforced in a consistent manner is a very important trait of a civilized society. When people are subject to arbitrary government, they are less willing to invest and make plans for the future.

Back to Costa Rica, I really wanted to go to the northwestern part of the country, to visit the Guanacaste coast (near the Papagayo Peninsula) and also to the Arenal area (a nice lake and an active volcano). But that would have been difficult for a short trip starting from San Jose. There is a closer international airport in Liberia, but it's not easy to get to that airport from Albany. If and when we go again, we will fly into Liberia and see that part of the country.

Some other thoughts:

- I was a bit surprised about how pedestrians walk so close to traffic. Seems very unsafe. We would see someone walking with a very small child, perhaps 2 or 3 years old, and the kid would be walking right on the edge of a narrow road. I think there are a lot of car-pedestrian accidents and those are the most deadly. Not sure how easy it would be, but I suspect CR would be better off if they improved pedestrian safety, both through education and widening roads.

- We saw a lot of dogs, especially small dogs. Not sure why, but I'm guessing they provide some degree of security, barking in case someone tries to break into your house.

- I read an article in the November 7 Tico Times called "Disarming Young Ticos". If I remember correctly, there are less than 50 juveniles incarcerated in this country of 5 million people. That's amazing in contrast to the US, where we probably have more than that in Albany County (population less than 500,000). The US grossly overuses incarceration as a policy tool. Will we ever find our way out of this trap?

Do you have any thoughts about Costa Rica? Please post your comments.

Wednesday, November 12, 2008

Costa Rica Day 3: Better Driving and More Xandari

On the morning of Day 3 we enjoyed one final breakfast at Gaia. Another nice meal, including fresh local fruit. I thought the croissant french toast was better the day before, but it was still good.

Before breakfast we checked out Gaia's nature trail. We only got a little way in and decided it was too challenging. It did look quite beautiful though.

After breakfast we set out for the drive back to Alajuela and Xandari. This points to one downside of Costa Rica. There's a park on the way but we decided not to stop there. We had our luggage in the SUV, and the advice is not to leave anything in your car when you park somewhere. If we go to CR in the future, we will rent a sedan so any luggage will be hidden in the trunk.

The drive went well this time. It was a Monday, so the weekend beach traffic wasn't there. We did get lost again in Alajuela, due to the lack of road signage. Thanks to another gas station attendant, we did find our way back to Xandari. The resort has some things to do. First, there's a great trail. It's challenging, but at the bottom you get to see some nice waterfalls. Picture of the biggest one below:

It's a lot of steps going down, plus a lot of downhill terrain with no steps and mushy ground. Some spots are not good for those with a fear of heights. But we made down and back up.

Xandari also has two pools, one with a jacuzzi. It wasn't nearly as warm as Gaia (still pleasant) so we did the jacuzzi instead of the pool. My pool pictures didn't come out that good, but they were nice, though not elaborate like the one at Gaia.

After the pool we had a nice dinner, goofed around on my laptop on the lobby Wi-Fi, and had a nice dinner. Note that the TruPhone app on my iPhone no longer worked on the Wi-Fi at Xandari. Not sure what the problem was. I just tested it now at home and it works here. Heather's iPhone e-mail app did work on the Wi-Fi too.

After our experiences getting lost in Alajuela, we had Dollar come pick up our car and Xandari drove us to the airport the next morning. Had a very nice conversation about the local economy, mostly in Spanish, with our driver. It was a good trip.

In the next couple days I'll post some final thoughts about our Costa Rica trip. It sure was an adventure, and I'm glad we went. It was also nice to come home. I'd like to say our kids missed us as much as we missed them, but they had a great time with their wonderful grandparents.

Sunday, November 09, 2008

Costa Rica Day 2: Manuel Antonio and the Americana Fea

After a good night of sleep, we had a nice breakfast at Gaia's restaurant. This resort really pampers the guests. Lots of staff available at all times to help with whatever you need or want. The restaurant has a fantastic view of the ocean and many miles of coastline. My skills at photography were not up to the task, but here's the best shot I took:

After breakfast we went on a tour of Manuel Antonio National Park. The resort provided a guide, William. He was born in Nicaragua, moved to CR at age 9, and it seems like he works a lot. He also knows a tremendous amount about the flora and fauna of Manuel Antonio, and he has remarkable eyesight. He could spot small camouflaged animals (including bugs) from substantial distances. Thanks to William, we saw a wide variety of animals. We also got to see three different kinds of monkeys - Howler, Whiteface, and Squirrel Monkeys. Pictures below (click on any photo to enlarge):

Howler Monkey:

Leaf Cutter Ant:

Capuchin (or Whiteface) Monkey:

Bats (look closely on the tree trunk):

Squirrel Monkey:

When we saw the Squirrel Monkeys, there was a large group of fairly young Americans nearby. They got very close to the monkeys and one woman actually picked up a stick and tried to poke a monkey. A guy in the group was telling her to stop and she kept doing it. A new take on the ugly American - La Americana Fea.

There was a tremendous variety of trees, other plants and animals. We saw "land crabs." We didn't know there was such a thing before. Lots of color, though of course, mostly a lush green. The trail leads to beaches that are stunning. It was a weekend day, and many people who seemed native to the country walked right through the trail to get to the beach.

On the way there and back, we noticed a beach area outside the park that had some street vendors, along with regular shops and restaurants. So we had a nice lunch at the resort (the food there is excellent) and then they drove us back to that area. We bought a few touristy things from the street vendors. I'm sure they were ripping us off on the prices, but it was much cheaper than anything that you'd see in a US tourist trap, and haggling worked too. We sat on the beach for a while. This was another nice spot. Very pleasant.

Once we got back we spent about 20 minutes in Gaia's pool. This was another spectacular feature of the resort. The pool has multiple levels. A couple of them are "infinity" pools where the water level is just a touch higher than the wall on one side, so it looks like the pool doesn't end - and the view in that direction is the ocean. The water goes over the edge and forms a 15-20 foot waterfall to the lower pool, which has another one that drops off just a few feet. It was quite humid and the water felt great. Below are a couple shots of the pool (it was so humid the lens fogged on the second shot):

Before dinner we treated ourselves to a "couples massage". We both got a massage in the same room. We enjoyed that. Dinner was good too. I don't remember the details as I write. After dinner we enjoyed a quiet evening in our room and got to sleep fairly early.

A couple things about our room. I particularly liked the combination jacuzzi tub/shower. The jacuzzi jets were weak, but it was still a nice feature. The shower head was great - excellent pressure, and an interesting shape. It was cylindrical and the jets were in a line. Also, there's a window on one side. When you open it you can see out onto the terrace and beyond into the flora and even the ocean. The other thing is that our suite had a rooftop terrace. You go out of your room and go up a flight of stairs, and there is a terrace where you have an even better view, similar to the view from the restaurant. There's a table and chairs, a couple of lounge chairs (with wet cushions from the rain the previous night - they don't dry out because of the humidity), and a reflecting pool (which was empty - one minor failing in an otherwise fine stay).

Oh, and I didn't find a working WiFi signal in the room, but there were multiple ethernet jacks and they worked well. I did not check the rest of the resort for WiFi, so I don't know about that.

Stay tuned for Day 3. :-)

Saturday, November 08, 2008

Costa Rica Day 1: Poas Volcano, Uglier Driving and Gorgeous Gaia

On our first full day in Costa Rica (for Day Zero, see Costa Rica: Ugly Driving) we woke up a little late. The previous day was a long one, and we both had trouble sleeping.

When we did get up, we had a pleasant breakfast at our resort, Xandari Alajuela. There is a complimentary breakfast. It's like a Continental breakfast, but with a few more items than you get at most places, and it was all delicious. There was some kind of Costa Rican muffin/quiche thing that was extra good. We also got fried bananas (or was it plantains?) and they were excellent. One of the nice things about Xandari, by the way. Menu prices were very reasonable. The plantains were $2. One small-world moment. Started chatting with a woman at breakfast. She grew up in Glens Falls, and her husband in Corinth.

After breakfast we drove up to the Poas Volcano National Park. It was a reasonably short drive from Xandari, but driving in Costa Rica seems to take longer than it should. This opened up a new problem. You're going along and there's a sign: "Parque Nacional Volcan Poas - 27 km". For the non-metric inclined, 1 mile is 1.6 km, so 30 km is a bit less than 20 miles. Okay, so we're doing pretty good. Next sign says 25 km. Then the next sign says 30 km. Um ... shouldn't we be getting closer? I'll mention a couple more like this later, but in short, no one in Costa Rica seems to know how far away anything is. If you ask them, they'll guess, but they'll almost surely be wrong. If the guys putting the signs up on the highways can't get it right, why should anyone else?

So, driving up and down and all around, narrow roads, people walking extremely close to the roadway, odd traffic behavior, etc. We did eventually get to the park. It was quite nice. Here's where I should start to mention how beautiful Costa Rica is. If you read about Costa Rica, it's one of the first things you'll see. And it's pretty much true. Populated areas are generally less attractive as there are many unsightly structures and objects, but outside those areas there is an awful lot of green.

Driving and walking up to the volcano, we saw lush vegetation all over. The country is really just one big garden. What little we've seen so far anyway. After parking, we walked up a paved (and wheelchair accessible) path to see the crater. Very interesting. The bottom of the crater is filled with water. Apparently the water is hot, highly acidic, and you can see a plume of steam coming off of it. See the following picture:

We were lucky that we had good views while there. Not the best though. On a really good day you can see the Caribbean from there, which is a rather long distance. We could only see the crater and not much beyond it. We also walked up to the Laguna, which is another crater also filled with water.

The Laguna hike is tougher, with steeper hills and steps in a number of places. We walked about 2 miles in total, a workout. We appreciated the downhill return.

We drove back down to Xandari for lunch. I got us mostly lost on the way down, but fortunately found our way back. Xandari has done a good job of posting signs for itself in a number of places. And their distance markings are the most accurate we've seen here.

After lunch we headed out on the most adventurous part of the trip so far. We drove to Quepos on the Pacific coast. I got lost again trying to get us on our way to Quepos, but we eventually got on the right track. I kept stopping and asking people for directions. This is a key point. I speak Spanish fairly well. If you don't speak Spanish, getting directions will be a lot more difficult. Many Ticos (Costa Ricans) speak English, but they're better at Spanish and some struggle with English. Anyway, the best directions came from a gas station attendant. Then I had a sense that I was about at the turn and ran into a restaurant to ask a waiter. He gave me the clearest directions - he pointed to the road I thought we were supposed to turn onto and said to follow it all the way. I had guessed correctly, but you'd think they'd put a sign??

A little ways further we saw a sign saying that we had 155 km to go to Quepos. The longest 155 km I've ever driven, and not just because I've never thought about a trip in km before. Just now I checked a Costa Rica driving distance calculator and it says 175 km, so that explains a little of it (assuming the calculator is right).

The first part of the drive from Alajuela was unpleasant. The roads were narrow, winding, and crowded. We kept seeing signs to Jaco (on the way to Quepos) and to Quepos as well. The distances continued to vary. We also saw plenty of billboards in English about buying condos or other property. I suspect that business is slow these days. At a certain point as we were getting closer to Jaco, we took a ramp around onto a new road, and all of a sudden it was fairly straight and flat and empty. We were able to go 80 km/hr (50 mph) for some consistent stretches.

We had been driving for a while and passed through Jaco. We were looking for a couple of places to stop and take a break. We were cruising along and then traffic stopped ahead. There was a minor landslide and we could see some boulders in the road. A guy in uniform (probably a police officer) and some young men cleared things up, all while keeping watch to make sure nothing fell on them.

We drove on. Finally we saw Xandari Pacific. This is by the same people who run our first hotel. It was very beautiful, and the beach is right there. It seemed like there was no one staying there. They probably do better in high season. We had a drink and enjoyed the view, and then headed back out on the road. I asked the waiter how far to Quepos, and he said 30 km. As we were driving out to turn back onto the main road, a sign said 45 km. They're consistent though.

Traffic came to a stop at Parrita (very close to Quepos). They are apparently building a new bridge, and traffic was routed over a narrow one-lane bridge in place of whatever the old one was. Once we got past that it was smooth driving again. Then it got dark and started to rain. And rain. And then it started to pour. Finally, after what seemed like many hours (but was really less than four hours including our stop at Xandari Pacific), we arrived in Quepos and found our hotel, Gaia Hotel and Reserve.

Gaia seems to be built on a hill. The main facility and the rooms are on top. You park and they drive you up in the hill in golf carts. We got a quick tour, took a short break in our room, and then had a very nice dinner from the hotel's restaurant, but we got room service because of the downpour. The food was excellent. We also had our first good night of sleep.

More about Gaia in the next post, about Day 2.

Costa Rica: Ugly Driving and Beautiful Xandari

I've been thinking about Costa Rica for years. Driving my wife crazy. Well, I was goofing around with my Northwest Airlines frequent flyer miles on their website and (with spousal approval) booked a short trip to Costa Rica. And now we're here.

We arrived after a fairly long flight - a bit longer because the plane had to fly around Hurricane Paloma. Then we had a minor adventure getting our rental SUV (4wd suggested due to rough roads). On that point, I have to say that Dollar Rent-A-Car's idea of a luxury SUV is not the same as mine. We got a large Mitsubishi that is competent on the road, but it's not luxurious by any stretch of the imagination. But what should I expect for $40/day?

Going to our hotel at night, we got our first experience driving in Costa Rica. It ain't easy. The directions were reasonably clear, but the streets do not appear to have names. For that matter, one-way streets are not clearly marked. As we discovered when a motorcycle cop advised me that I was going "contravia" (wrong way). Fortunately he was a nice guy or had more important things to do, so he gave me directions and went on his way.

After that slight detour we found our resort. We spent the first night at Xandari in Alajuela. The resort is gorgeous and so was our room. Very spacious with a large terrace and expansive views of the Central Valley.

Customer service at Xandari was outstanding. Our plans had us arriving fairly late. So they e-mailed me a few days to let me know their kitchen would be closed and asking if we'd like anything in our room waiting for us. We ordered a few dishes and they were all very good. We stopped back for lunch the next day after a morning trip and that was great too. We'll be back there in a couple nights so maybe I'll post something more about that in my restaurant review blog later on. Below is a photo of the view from our terrace the next morning:

For the digerati, Xandari has wifi in the lobby area. I used it to check e-mails and then used TruPhone on my iPhone to make a few calls. TruPhone costs 3 cents a minute. My cell phone roaming in CR is $2.29 a minute, so that was a nice trick, though TruPhone was a bit erratic on one of the calls.

That was the beginning. More to come.

Monday, October 27, 2008

TruPhone for iPhone

I read about an "app" for the iPhone called TruPhone. It allows you to make calls over the internet when you have a WiFi connection. We have a weak cell signal at our house. I downloaded TruPhone to my iPhone and tried it out using our home WiFi. The call was crystal-clear - far better than what I'm used to at home on the cell. Another plus is that we're going on a trip soon and may not be able to use our cell phones where we'll be - being able to use TruPhone in that situation will be very nice.

Note that you can't receive TruPhone calls on an iPhone (at least not yet), but you can make calls.

I've only used it once, but for now I'm amazed and sold! Check it out: truphone for iphone.

Wednesday, October 22, 2008

Van Nuys Traffic Court and Britney Spears

Apparently Britney Spears had her day in Court recently. 10 of 12 jurors felt she was not guilty of driving with a suspended license, so she's neither guilty nor "not guilty." As best we can tell, the case was heard in Van Nuys Traffic Court.

Monday, October 13, 2008

Why hire a traffic lawyer?

If you want a good reason to hire a traffic lawyer, watch this show of people going to traffic court by themselves. It's called Speeders Fight Back and it's on TruTV.

The site also has a list of future episodes.

The show is set in what looks like Plantation Traffic Court, part of the Broward County Court system.

Wednesday, October 08, 2008

Criminal Defense Lawyer Thoughts

It's a sad reality that hard economic times are not bad for criminal defense lawyers. Desperate people are more likely to commit crimes. Cash-strapped governments at all levels increase traffic enforcement and fines. All of this leads to a greater demand for our services.

Lawyer Thoughts

Having one of those pensive moments.

- Sometimes being a lawyer feels like walking through a minefield. We have a map of all the mines, but the map is in the form of 10,000 large books. You can't carry them all with you, and it's kinda hard to remember everything.

- When you step on one of the mines, your fate (or your client's) is in the hands of someone like a judge. Fortunately, most of the judges apply common sense and use their discretion to get to a fair result. Unfortunately, there are a few judges who do not have common sense, or don't care about fairness.

- Big corporations can afford to hire big firms. They get a team of lawyers at $400 per hour or more who scrutinize every detail to make sure they don't step on any mines, and to catch the opponent if they step on or close to any mines themselves. This is one of the ways that the legal system tends to be tilted against the little guy. On the other hand, the big firms sometimes make big mistakes.

Saturday, October 04, 2008

Criminal Defense: Some of our clients are criminals

A few years ago I did a post about representing innocent clients in criminal defense cases.

The other day I spoke to the Pre-Law Association at U Albany. One of the stories I told them (which I'll go into another day) involved the most criminal client I've ever represented. This guy was the opposite of innocent.

Sometimes we represent innocent clients. They really didn't do anything wrong. It happens, and more than I would have thought. The police make a lot of mistakes, and quite a few people who are arrested really are innocent. The innocent client stands out from all other clients in one key way. Guilty clients want to know what kind of deal we can get for them. It's one of the first questions they ask. Innocent clients never ask that question. In my experience these are the cases most likely to be fought.

Then there's the clients who did what the police said, but they're not what I would call criminals. These are mostly good people who either had a bad day, or have a mental health problem, or did something that shouldn't be a crime. They're not deliberately trying to do something wrong. This is what criminal defense lawyers see most of the time. And we mostly get them deals.

Going up the scale, sometimes we get clients who are ... well ... criminals. They know exactly what they are doing. One example that comes to mind is the guy who was stealing from supermarkets. He had a plan for how he did it, and I'm pretty sure he'd done it before. While he was a criminal, he still had some redeeming qualities. He worked well with us. He was respectful to the Court and the police. He had a "partner" in his crime and they were loyal to each other. He understood why he had been arrested and that the consequences were fair. I'm not saying I'm inviting the guy to my house for a party or anything, but I wouldn't be afraid to see him on the street or worry that he'd hurt someone. I even think there's a good chance this experience will straighten him out. But there's also a pretty good chance he'll steal again. Just my opinion. These garden-variety criminals mostly obey the law, and mostly respect society's rules, but they sometimes break the law, do it on purpose, and are trying consciously to get away with it.

We represented another guy who had a more serious criminal history. He was charged with a fairly minor crime for most people, but because of his criminal history he got a significant prison term. This guy came from a part of American culture where going to prison is just a part of life. He was very matter of fact about it. Like the shoplifter, he was respectful to everyone in the process. He was really a pleasant fellow, and we actually liked him.

Then there's Mr. X. He was the worst. I'm pretty sure his behavior was partly influenced by a substance abuse problem, but there was something more. Much more. He did not work well with us at all. He lied and lied more. He was extremely disrespectful to everyone involved, even to the person who paid my fee.

We are all, to some extent, self-centered. I'm probably worse than average on this (people who know me well will laugh hysterically at this understatement). Mr. X was the most self-centered person I have ever met. No one else mattered at all. The world is his candy store and everything we work for is something he'll just take without asking or paying. In the wrong circumstances you better not get in his way.

With all that in mind, I'm still a criminal defense lawyer. I fought hard for him. Thanks to some problems with the police work, compounded by a massive error by one officer at one stage, we had a real chance of winning the case. And then our client did something that sank him, and he took a deal.

At sentencing, I did my best as well. There was not much to do since there was a plea agreement. But the judge had some discretion because of some things that had happened. I argued for him the very end, passionately. The client got a lengthy prison sentence according to the deal. I didn't say what I really thought. The sentence wasn't long enough. I wouldn't want this guy to ever get out.

His crime was nowhere near what might get someone a death sentence in the US, but the experience gave me a new perspective. I am personally opposed to the death penalty in its current form. In the past I was opposed to it completely.

The problem with the death penalty is that the criminal process is not trustworthy. We will execute some innocent people. Police make mistakes, and yes, some will lie to get a conviction. I don't think it should be about the individual offense.

The death penalty (if we're going to have one at all) should be about the defendant. When a defendant has crossed a certain threshold, say three serious felony convictions, then maybe that should open the door to the death penalty. The defendant would be examined by expert witnesses both for the prosecution and the defense. Each side makes an assessment about him - there's probably a better way of phrasing this, but the standard would be: "Is this guy ever going to be worth a shit." Okay, maybe in nicer terms: "Is there any hope that this defendant will ever be a productive and honest member of society." Let a jury of twelve decide that one.

Are police tougher on out-of-state drivers?

Just read an interesting statistical analysis about speeding tickets by Professors Michael Makowsky and Thomas Stratmann. They both appear to be economics professors at George Mason University.

They analyzed a database of Massachusetts speeding tickets. Police there can choose to issue a fine or just a warning on the ticket. They found that police are more likely to fine out-of-town drivers and even more likely to fine out-of-state drivers. It's an interesting discussion, if you can wade through the statistical mumbo jumbo.

The paper is available online at:

Sunday, September 28, 2008

The Secret to Writing a Lawyer Blog

Someone on a social networking site asked a question about writing a lawyer blog, and about writing posts that will generate traffic versus posts that will appeal to a niche. I think I have the secret, and it's not really a secret.

To paraphrase Crash Davis from Bull Durham: Don't think meat. Just write.

I've written blog posts about all kinds of things. Some are highly focused on what my law firm does, but some are all over the map. I have never written a blog post just to generate traffic for its own sake. I'm certainly aware of keywords in some of my posts, but I rarely worry about that.

Write good content. Write in your own words, but at the same time in a way that is understandable for your target audience. If you're writing to regular people, you have to explain the Latin or the abbreviations (or leave them out). A huge challenge here is to remember what you didn't understand when you weren't a lawyer, and then figure out how to explain it to the person you were then.

Write about something you think is interesting, and explain why you think so.

Don't listen to people who say you should write a blog post every day, or twice a week. Write when you have something to say. Take your time saying it so you make it good. I have long gaps in my blogging and am confident that has not been a problem.

One of my most "successful" blog posts was about a play in the 2008 Superbowl. It had nothing to do with law. By successful I mean mainly a post that had a lot of views. But also, I really enjoyed writing it and the research that went with it. If you're blogging just for traffic or link value, etc., then you won't enjoy blogging. In the long run that means you won't do it well and you'll probably quit.

Finally, take all of my advice with a grain of salt. On the one hand, this lawyer blog is successful. It ranks well on searches, gets substantial traffic, and generates revenue for my firm. On the other hand, I don't really know why it works. I'm only guessing.

Thursday, September 11, 2008

Traffic Court - New Heights!

Our traffic court site continues to grow. The latest news is that we broke 200,000 page views in the last 31 days. Monday was the biggest day in the site's history, with over 4600 visits and over 4300 "unique" visitors. Tuesday was over 4200 visits, making it the strongest regular Tuesday ever (excluding Tuesdays after a 3-day weekend), and the 4th biggest day in site history, just a nick behind July 7th (an abnormal Tuesday).

We think we've finished all of the California Traffic Court pages, and we're darn close to finished with NY and VA. We continue making good progress on Ohio, Florida, Texas and Pennsylvania. Washington State is also in our sights. We will soon pass 4000 traffic courts on the site.

Wednesday, September 10, 2008

Albany DWI Seminar

You know the world's in trouble when I'm speaking at a seminar. There will be a Lorman CLE on DWI in Albany on December 4th. I will talk about handling low BAC cases. Should be interesting.

Sunday, September 07, 2008

Vote for Steven Vasquez

The congressional primary is Tuesday - voting is from 12 noon to 9 pm. Please make sure you get out and vote.

And Republicans -- vote for Steven Vasquez. There are three big reasons why you should:

1. Steven supports small government, and he really means it. His opponent talks the talk, but he is part of the GOP establishment that has ballooned government in NY, and the US, for over a decade. You can see this in the campaign itself. Steven's campaign has run lean, spending almost all of the campaign funds on campaigning - lawn signs, mailers, and phone calls to voters.

2. Vasquez has worked hard on the campaign. I met Steven in 2007 while we were both working on the Ron Paul campaign. He worked tirelessly for Ron Paul, and then continued to work on the congressional race. He has built a team of loyal volunteers who believe in him. If you want someone who will work for you in Washington, Steven is the choice.

Sunday, August 31, 2008

10 Great Things About Albany

People supposedly like top 10 lists, so here goes, in no particular order ...

10. Albany is a fairly short drive to several cool places. New York City is a bit more than 2 hours. Boston is 3 hours. Four hours to Montreal, and a bit more than that to Niagara Falls. These days you can skip right by Buffalo. Closer to home, we have the Adirondacks, the Catskills, the Berkshires, and the Green Mountains of Vermont, all of which have some pretty good skiing. Lake George and Saratoga are just north of here, with a bunch of fun stuff mainly in the warmer months.

9. The cost of houses in Albany is reasonable. You can buy a house for $100K or less if you're not too picky. Bigger suburban houses are in the $200-400K range and McMansions are not much more than $500K. With recent economic problems, you might be able to get one for less than that. There are places in the country that are cheaper, but compared to nearby Boston and New York City, it's dirt cheap here. We bought our house for under $200K back in 1999. It's a 2200 sq.ft. 4 bedroom Colonial on a half-acre cul-de-sac lot backed up to 12 acres of woods.

8. The Albany area has good restaurants. I write an amateur Albany restaurant review blog because I eat out so much. Due to its ethnic heritage, the Italian restaurants are particularly strong. Strangely this does not translate into Irish and Polish restaurants. Years ago we didn't have much in the way of Asian cuisine other than Chinese or Indian, but that has changed dramatically. Japanese and Thai restaurants are popping up all over. We even have a couple places serving Korean food, though they don't brag about it. And just within the last five years or so we started seeing some high-end restaurants with fancier menus, wine lists, and of course, prices.

7. We get four seasons of weather. For some this is not a plus, and I'm not as thrilled about winter as I used to be. Summers here do have some hot days, but it's usually not too hot and cools off some at night. We do get some very cold winter days but they're rare. Then there are the occasional 2-foot snowfalls. As a kid growing up here that meant a break from school, and I still love them. The snowblower helps. Spring is always welcome, and in the fall we get to see the leaves change colors. Then we get to rake them - or pay someone else to do it.

6. Albany has clean air. I've traveled to quite a few places and the only place I remember having fresher air is Alaska. New York City's air can get oppressive on a hot summer day. I remember London being dirty - but that was 20 years ago so maybe it's better. And don't get me started on LA. The winter air here in Albany is especially refreshing.

5. Great schools are all around us. While some criticize the city schools in Albany, Schenectady and Troy, they're not terrible. Plenty of kids come out of them and do well. The suburban school districts are very well regarded, especially Guilderland (my hometown - I have to brag), Bethlehem, North Colonie, and Niskayuna. We also have some strong private schools including Albany Academy and Emma Willard. Then you have the colleges and universities. U Albany is big and has a lot going for it. RPI is a strong engineering school. Union College is a well respected liberal arts school. And of course, both RPI and Union have other strengths. We also have Siena, St. Rose, Skidmore, and I'm probably forgetting a couple. The colleges bring a youthful atmosphere which has positives and perhaps some negatives as well. And there are also the professional schools - Albany Law School (my alma mater) which seems to account for half or more of the local lawyers, Albany Medical College, and the Albany College of Pharmacy - all at one intersection. RPI, U Albany and Union have MBA and other professional programs too.

4. Albany is the center of New York State government. Yes, this does make the local news more entertaining, but that's not the biggest benefit. It means a steady supply of relatively secure jobs. As a libertarian I should be upset about this, but it does seem to make for a pleasant community. The jobs also keep many of the young college grads here, supporting that youthfulness I mentioned above.

3. Everything is 20 minutes away. It seems like no matter where you live in the Albany area, you can get to almost anything else in twenty minutes or less. It's something about the road system. For some trips you go on local roads and it goes slower but you don't have to drive as far. For longer distances you get on a freeway and cover most of the distance at 55 mph (for those of you who don't speed). Traffic does slow up in some spots during the rush hours, but it doesn't compare to places like New York, Boston or LA.

2. Albany has a substantial history. For a lot of places in the US, and the rest of the world, the documented history doesn't go back all that far. California history is mostly within the past 100 years. Albany's European-derived story goes back, way back, to the very early 1600s. And the history and culture of those who were here before us is maintained. I remember being taught about the Mohawk Indians back in elementary school. The Hudson River made Albany a key location for military and commercial reasons. That geographic issue is less relevant today, but the Port of Albany is still used.

1. The Albany area has beautiful scenery. I'm not much on urban views, but I personally like the Empire State Plaza, especially as it comes into view from I-90 as you travel here from the east. There's also a lot of impressive "classic" architecture in the city, including the State Capitol and more. But the really great stuff is the natural scenery. My personal favorite is John Boyd Thacher State Park and walks on the Indian Ladder Trail there, with two substantial waterfalls. There are so many other beautiful spots, like Grafton Lakes State Park, Lake George, the Sacandaga Reservoir, great trails along the Mohawk and Hudson Rivers. A friend just took me and my daughters out on a boat ride on the Erie Canal this summer. It was gorgeous.

Okay, I've got one more ...

0. It's not crowded. Look, I grew up in the suburbs. When we moved to Guilderland the population was less than half of the present number. And still, in most places you go there aren't too many people. You have to look for places that are crowded. You can generally find parking in downtown Albany. You rarely have to wait for a table, except maybe on Friday nights. Local amusement parks like Hoffmans Playland and the Great Escape do not overwhelm you with the human hordes. That isn't so great for the businesses, I suppose, but for me it just makes things a little more pleasant in Albany.

There's more good things to say about Albany, but I think I've covered a lot.