Saturday, May 31, 2008

Smelly Returns

Almost a year ago I wrote a blog post about a DWI lawyer I referred to as Smelly. This was not a reference to any odor, but rather a play on his name. I've never even met the guy, and have only talked - briefly - with one lawyer who has worked with him.

I mentioned in that post a perception among DWI lawyers about him. Well, now I found some gold. See the website and video below:

So, do you want a lawyer who claims to have created the biggest DWI law firm in New York State in just 20 weeks, and who is trying to sell his business model to others?

Or do you want a DWI lawyer who sticks to his local area, keeps all his DWI work inside his firm, publishes the names of all his attorneys on his website, and is focused on getting you the best result possible?

It's not just us. There are a number of good DWI lawyers, both here in Albany and in other parts of the state, who focus on representing their clients instead of on building and selling a business model.

And by the way, the lawyer I mentioned who worked with this firm ... we interviewed him and didn't hire him. That firm doesn't publish the names of the attorneys who work for him ... and so you don't know who will be handling your case. With our firm you know - it'll be me, my associate Christian (our young gun who manages our DWI cases), or my senior associate David (a former prosecutor who manages our traffic practice). I don't need to hide who they are because they're good.

The interesting thing about him selling his marketing model is the throwback to a variation of that. For years a law firm here advertised themselves as "The Heavy Hitters." It turned out that there were (and still are) plenty of other "Heavy Hitters" in other markets, as close as Syracuse. You can read more about the Heavy Hitter thing by clicking on the previous link. The Heavy Hitter thing is an advertising model put forth by Group Matrix. Check out the Group Matrix video. About halfway through you'll see a familiar local firm. :-)

Monday, May 19, 2008

New York Traffic Courts: The Surcharge Tax Increase

Note: For help, please check out our New York Traffic Lawyer page.
Change is brewing in the surcharges for various offenses in the NY traffic courts and criminal courts. I've posted a portion of the schedule below that's most relevant to what we do, in the usual traffic ticket and DWI cases, will discuss these massive tax increases further below. I should also note that this schedule is for town and village courts. They may be $5 less in city courts, as they are now.

What you can see for starters is that the surcharge for simple traffic tickets has gone from $55 to $85. That is a whopping 55% tax increase (the $30 increase being 55% of the original $55 surcharge, which is not shown in the chart). Equipment violations go from $35 to $55 (57% increase). And that's not the bad news. The big monsters are on the DWI offenses. For a simple DWAI, the surcharge was $80. That is going up to $280 - a 250% tax increase. For DWI misdemeanors, the surcharge goes to $400 from what I remember as $110, and that's a 264% increase.

To give some context, the maximum fine for a speed from 11-30 mph over the limit is $300, and $150 is a typical fine. With the surcharge, that raises the final number from $205 to $235. That doesn't seem all that bad, but it's still more taxes.

With the DWAI it's huge. Fine range for a DWAI is $300-500, and many judges fine the minimum on first-time offenders. Thus, a typical plea means $380 in court fines and surcharges (not counting the other costs you get hit with). Now that $380 goes to $580. With a DWI, the minimum fine is $500, $610 with the current surcharge. That goes to $900 now.

Along with other changes in the court system, like DAs adopting policies that limit plea bargaining, this will encourage more defendants to hire lawyers, especially in DWI cases. It is now easier for me to make the economic case to a potential client. They DA policies mean they have little to lose (except our fees) by fighting a DWI case. At the same time, they have more to gain if we win, because they will avoid the now-higher surcharges.

With all the concerns people have about the economy, criminal defense appears to be recession-proof. What's really going on here is the legislature and the governor need revenue from somewhere. They think they can get away with hiding tax increases in fines, surcharges and assessments. And they're probably right. By sticking it to the speeding and drinking taxpayers, they are also making economic life easier for the Albany Lawyer, and others like me.

Please don't think for a second that I approve of these policy changes. They will help me financially but I was doing fine already. This is a gross perversion of any sensible tax policy. Liberals supposedly favor progressive taxes, where those with higher income or wealth pay higher taxes. These fines, surcharges and assessments are applied to all with no sensitivity to their economic circumstances. In reality, wealthier people are more likely to hire a lawyer to help them, and we do save them money overall. So these tax increases actually hurt the middle class and the poor harder.

Thanks to our faithful commenter, pml, for e-mailing the chart to me.

Saturday, May 17, 2008

Albany DWI and DA Soares' New Policy

Kudos to the Times Union for breaking an important legal news story. The Albany District Attorney's office has adopted a new policy regarding plea bargains in drunk driving cases.

For starters, a big chunk of the policy depends on the accused person's blood alcohol content, or BAC. Also, the accused must also complete an "alcohol evaluation" before there will be any plea bargain offer.

If the BAC is 0.14 or lower, the DA may agree to a reduced charge of DWAI, along with a sort-of standard package -- fine, the "Victim Impact Panel" (aka VIP), waive appeal, and do the Drinking Driver Program (or DDP). For those charged with DWAI already (usually 0.05 to 0.07 BAC), this is what is known as "plead to the charge." I'll discuss that concept more later. I should note though, that the policy may be different if the BAC is 0.05 or 0.06.

For 0.15-0.19, the offer is plead guilty to DWI, with the same package as above. For the 0.15-.17 part of the range, the offer is "plead to the charge."

For 0.20 and up, (.18 and up is the relatively new "Aggravated DWI"), the deal is plead guilty ("plead to the charge" again), do 3 years probation along with the package, and a requirement of an "ignition interlock device" for the remainder of the 3 years probation.

There are other details related to cases with accidents or defendants with prior convictions, but I won't get into the details of that here, except that they also require a plea to the charge.

So we have an election year, and the DA has suddenly decided after three years in office that his previous approach to DWI was too soft, and now he's getting tough on drunk driving. Politically, it seems the media should be jumping all over him for playing election year politics with people's lives. Either that, or nail him for being too soft on DWI in his first three years in office.

But let's talk about why this matters. The biggest problem initially is the "plead the charge" offers. That's not an offer. A defendant doesn't need the DA's offer to plead guilty to the charge. All they have to do is walk in and tell the judge they plead guilty. You don't even need a lawyer to do that. If you plead guilty to the charge, you'll get the same deal that the DA's policy includes, and in some cases you'll do better. An offer is a reduction to a lesser charge. for most of the Soares' policy, there's no offer.

I had a client who was in an accident, someone was injured, and she was charged with DWI. This was an active duty soldier. The offer was plead guilty to the charge and do 3 years probation. For those who don't know, probation typically requires someone to stay in the area where they're on probation - you know, "don't leave the county." That's kind of tough to do if you're on active duty in the military, and this soldier was getting ready to be deployed overseas.

In that case the offer was reasonable for the circumstances of the incident, except for the soldier thing. For some reason the ADA refused to agree to have him plead guilty without probation. I like this particular ADA. He's usually reasonable, often more so than others. But I guess he had a thing for accident cases and just wouldn't budge. The client did not want to fight the charge, so I had her enter a plea of guilty. There was a "pre-sentence investigation" (PSI) where my client met with a probation officer who made a sentencing recommendation to the judge.

Aside from this DWI incident, this client turns out to be a really good person. The probation officer recognized that she did not need to be supervised by the probation department -- they deal with people who have far more serious problems, and the client was already in a heavily supervised environment. The recommendation was even better than that - no fine. I'm still not sure a judge can do this, but there was no fine, saving the client $500.

For DWI lawyers, "plead to the charge" is unacceptable. Faced with that offer, a good DWI lawyer will insist on the entire process, including a trial if necessary (as long as we have a client willing to pay, of course). We win a lot of these cases, more than half of the ones we fight (warning - your mileage may vary - okay officially: prior results do not guarantee future performance - we might lose your case). I should define win also ... if as a result of fighting the case we get a better deal (such as a speeding ticket), that's a win. This usually happens because something in the case has gone well and the ADA knows the case is in trouble. But we win for real too. We won a jury trial a couple months ago (BAC of .32, offer was plead to the charge - he wasn't driving, listening to the radio in the parking lot with the engine running). We've gotten evidence suppressed in a bunch of cases - this usually means the results of the chemical test (BAC), and that usually means the prosecutor can't go forward. We've gotten cases dismissed on "speedy trial" grounds.

If the case isn't going well, we can always make the "plead to the charge" deal before trial (even during trial). And if we lose at trial, the PSI might suggest a lesser sentence than the deal anyway -- they rarely suggest worse.

More and more DWI lawyers are fighting. As a result, courts are getting busier and the front line prosecutors are getting overwhelmed. We've seen ADAs get fired for making one mistake - if it hits the media anyway. The office already had high turnover, and it seems to be getting worse. Some other DAs have adopted similar policies, but in practice their front-line ADAs have more flexibility.

The increased number of hearings and trials shows what we've known for quite a while. The police make a lot of mistakes. We're also finding that a lot of jurors don't like DWI cases. Maybe some of them drink?

Tuesday, May 13, 2008

David Soares and Citizen Action

I just got an e-mail for a David Soares fundraiser, and I just have to debunk the propaganda. Here are some of the claims, and my comments:

In his first term in office, David has fulfilled his campaign promises by:

Shutting down crack houses through our Safe Homes, Safe Streets Program to improve the quality of life in our neighborhoods

I don't remember a campaign promise to shut down crack houses. I thought he was in favor of drug policy reform and harm reduction. How is evicting families supporting harm reduction?

Being "tough on crime and smart on prevention"

I also don't remember a campaign promise to be tough on crime. I remember he supported drug policy reform, but haven't seen that in action. More on that below.

Sticking to his commitment to "one standard of justice"

This is so laughable I don't know where to start. Okay I do. Hevesi stole over $100K and did no jail time. One standard?

Creating a public integrity unit to hold government and law enforcement officials accountable

Again, laughable. The case against the Guilderland police chief has vanished into a black hole in the "public integrity unit." A complaint was filed against another town employee and nothing has happened on that either. Have they actually prosecuted anyone?

Supporting Rockefeller Drug Law reform

This is his biggest betrayal. Under Soares, some of the ADAs insist on community service for minor marijuana cases, which is illegal under CPL 170.56. No DA's office that I know of anywhere in the greater area, and I'm talking out to Utica and down to Kingston, does this. He's worse on marijuana than other DAs. And they keep indicting small time drug dealers on felonies. Where's the reform. Soares actually has the power to do something, and he does nothing.

Promises Kept… More to do...

Right. And I forgot to mention how Soares hired Richard Arthur, a Working Families Party hack, to work in the DA's office. From everything I've seen, the guy is completely unqualified. The job is a political payoff.