Tuesday, October 27, 2009

NY Tickets and NJ Insurance

We spoke recently with a NJ insurance agent. He had received a ticket in NY which was an 1110a. This was a "road-side writedown" where the cop was giving him a break from a speed.

The agent told us that an 1110a would increase insurance rates by as much $900 per year for three years. He said he wished the cop had written him for a low speed because ...

NJ insurance companies treat a first-time low speed essentially as a free pass. While it does count for points on a NJ record, it does not impact insurance rates.

The agent said that for anything out-of-state 15 mph or above, even though it's only 2 points, the insurance companies do raise rates based on the speed and not just the points. He also verified that the 2-point deal we get for NJ clients in NY does not count for points in NJ and does not affect insurance rates.

Thursday, October 22, 2009

The Supreme Court on the DWI Exception to the Constitution

The Supreme Court decided not to hear an appeal on a drunk driving case that was dismissed. Virginia's highest court threw out the conviction in Harris v. Commonwealth (a pdf file). It found that the stop was unconstitutional - based only on an anonymous tip.

Chief Justice Roberts (and Justice Scalia) felt the Court should have reviewed the case. Below are some excerpts of Roberts' opinion). His writing is in italics and mine is in plain text. Citations are generally omitted.

[T]he Virginia Supreme Court overturned the conviction. It concluded that because the officer had failed to independently verify that Harris was driving dangerously, the stop violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.

The "special context" is troubling. It fits with criticism I've read in the past of a DUI exception to the Constitution (usually credited to California DUI lawyer Lawrence Taylor), as well as similar concerns about a "drug war" exception for drug cases.

In Florida v. J. L. ... we explained that anonymous tips, in the absence of additional corroboration, typically lack the “indicia of reliability” needed to justify a stop under the reasonable suspicion standard. ... But it is not clear that J. L. applies to anonymous tips reporting drunk or erratic driving. J. L. itself suggested that the Fourth Amendment analysis might be different in other situations.
There is no question that drunk driving is a serious and potentially deadly crime, as our cases have repeatedly emphasized. ... The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases.

With all due respect to Chief Justice Roberts and Justice Scalia, this argument is just plain rubbish. I'd buy the argument if there was a tip about a terrorist with a nuclear weapon in his car, but taking it to the level of drunk drivers is going way too far.

Roberts' concern about the danger of the drunk driver was resolved in this case - the driver was stopped and taken off the road that night. Once they were in Court, the imminent danger was gone.

Perhaps a more moderate step here would be for Congress to legislate civil immunity for police making stops of suspected drunk drivers. Of course, that would prevent innocent people from suing to enforce their own constitutional rights. But it appears Roberts and Scalia don't care about that.

The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers “one free swerve” before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Nice emotional touch. I'm waiting for the day when Roberts and Scalia explain their rules to the families of innocent defendants abused by cops and prosecutors.

Courts sometimes have to balance competing interests. Roberts and Scalia apparently feel that protecting the public from drunk drivers is more important than protecting people from police abuse. But the language of the Fourth Amendment is clear. It doesn't mention any exceptions, not even for the perceived terrorists - Indians and British loyalists - of that period in our history. Conservatives are supposed to let legislatures do the balancing. So much for Scalia supporting the text of the Constitution.

Drunk driving is a real problem. Eviscerating the Constitution is not the best solution. I've proposed other ideas in the past on my Stop Wasting Money blog. Mass transit is my favorite, but there's more.

To see the opinion, also in pdf: Virginia v. Harris

Sunday, October 18, 2009

Speeding Ticket Story: A Tough Situation

Most of our speeding ticket cases are straightforward. We get hired, get all the information in order, contact the court and prosecutor, negotiate a reduction to something less, and let the client know the result and what they need to do. There's more to it than that, but that's the essence.

Every once in a while we get a client who needs a trial. This story is an example of that.

I'll call her Marina - not her real name. In her late 20s, she is a fashion designer in Manhattan. Marina also has at least one bad habit - she likes to drive fast.

She called us for a high speed - 92 in a 55 - an 8-point speed. But that's not the worst of it. She already had one speeding conviction within the last 18 months, along with a 3-point moving violation. Marina also had another high speed pending, in New York City. The location matters, because in the NYC traffic courts there are generally no deals. So there was a high likelihood that Marina would have a second speeding conviction within 18 months. In our case, if we could not get it out of speeding, she'd have a third speed and her license would be revoked.

The location of our ticket also mattered. In this particular court, the judge is known for being difficult. Not that he's unpleasant, but he rejects deals he doesn't like. And he doesn't like high speeds. This was also in a county where the deputy sheriffs prosecute their own tickets - the DA will normally not negotiate these tickets. It gets even worse. The deputy who wrote the ticket sees himself as Super Deputy. Please note he is not the same as the one in my previous blog post, Supercop. He's also much more pleasant and friendly than that guy.

Putting this all together, we knew it was likely we'd have to do a trial. We charged Marina significantly more than our usual fee. She didn't hesitate.

I showed up for the trial date. Super Deputy was late, giving me hope that he wouldn't show and we'd get a dismissal. He was teasing me. When he did show up, he would only offer a 6-point speed. The points would suspend Marina's license, but worse, the third speed would mean revocation. I suggested a 5-point violation for passing a stopped school bus. She's still get suspended, but that's a lot better than a revocation. No deal. Super Deputy used a typical excuse - the judge won't go for it. Right.

So I got ready for a trial. But the judge would not let us go forward because Marina wasn't there. So the trial was adjourned.

I had a great conversation with Super Deputy before I left. He seemed very prepared for trial, more so than most cops I've seen. On the bright side, he had been accepted into a job in a nearby city police department - with significantly better pay. He was waiting for the next opening, but that would be months away. Would the case be adjourned long enough that he'd be gone?

No such luck. When we showed up for the next date, which had been adjourned a few months, he was still a deputy. With the rough economy, the city had a hiring freeze.

We waited for a couple hours while the rest of the traffic cases were resolved, then started the trial. Super Deputy did not handle it well. I made appropriate objections to a number of things he did and said, and he got rattled. At one point I made an objection (hearsay I think), and he said: "Your honor, I don't know what defense counsel wants me to do."

The Assistant DA stuck around to watch. After Super Deputy got completely rattled, he finally offered to step in and conduct the prosecution. We went outside to chat, and he agreed to reduce to the school bus violation.

Walking out, I asked Marina if she understood what happened. Her response: "You just saved my ass."

As we walked out of the building, there was a guy out front with an umbrella who greeted Marina. He waited while we had a last bit of conversation, then escorted her to a $100,000 Mercedes. She got in the back and he got into the driver's seat. She had a driver ... from Manhattan. I'm wondering if the car ride up and back cost more than my fee.

Thursday, October 15, 2009

The Ghost of Altamont

Halloween is coming up, so it's time for a ghost story:

Friday, October 09, 2009

DWI Story: Listening to the Radio While Intoxicated

For a new kick, I'm starting a series of stories about past cases I've handled. This one's a DWI story, from a few years ago. As part of my pattern for stories about cases, some elements will be fictionalized mainly to protect the client. In this case there was a trial, so the truth is really a matter of public record, though practically it would be difficult to find the record if you don't know where to look.

Client was accused of DWI. His BAC (blood-alcohol content) was reported to be 0.32, four times the legal limit. This occurred before the Aggravated DWI law, so it was only the regular DWI charges under 1192(2) and 1192(3). Due to the high BAC, the prosecutor would not agree to a reduction to DWAI. I would not have recommended my client take that deal, but he would have if it had been offered because he did not want the fight.

I would not have recommended it because he was not guilty. The client had an argument with his teen daughter. She wanted him to drive him somewhere. He refused because he was too drunk. To get away from the argument, he went out to the parking lot, got in his car, started it, and turned on the radio. He did not move the car. He was not going anywhere in the car and hadn't driven it in hours. At the time the police arrived, his wife was sitting in the back seat with the door open.

A neighbor heard the argument and called the police. An officer arrived at the scene, and went to the apartment. The daughter answered the door and said there was no problem. Asked where her parents were, she said they were outside.

The officer then went outside, met up with another officer arriving at the scene, and they went over to the client's car. Seeing that the car was running and that he was intoxicated (we did not dispute that), they arrested him for DWI. Yes, my client was arrested for listening to the radio while intoxicated.

So we fought the case. The first major step was the suppression hearing. This is where the prosecution has to show that the stop and arrest were proper. If not, the evidence is suppressed, and that makes it hard to prove anything.

The big issue is whether the police had "reasonable suspicion" for the stop. Well, actually, there's even the question of whether this was a stop. The car wasn't moving.

The police clearly had a reason to come to the door of the apartment - a civilian complaint. But once they talked to the daughter, who said everything was fine, what was the reason for approaching a car sitting in a parking lot? Now I guess if it wasn't a traffic stop, then maybe you don't need reasonable suspicion for a stop. But if it's not a stop, then how can you say the defendant was driving?

But before we get to that, there was another problem. The time for the hearing arrived and there was no police officer. After about 15 minutes the prosecutor said he was on his way. He showed up a half-hour later in an undershirt and gym shorts, looking like he'd just woken up. The hearing went ahead. The officer - I'll call him Officer A - testified that he arrived, went to the apartment, talked to the girl, and Officer B arrived as A was walking out to the parking lot.

After the hearing I argued that it was either a traffic stop without reasonable suspicion, or if it wasn't a stop that he wasn't driving and then the arrest was without probable cause. Some judges find such logic irrelevant to their main job of doing whatever the prosecutor and police want, so suppression was denied. I'm being a little cynical on that. I like this judge very much for a variety of reasons, but I did not agree with the decision.

So we went to trial. It'd take too long to tell the whole trial story, so I'll just hit some highlights. First, my associate knew one of the jurors - said that the juror got hammered at a wedding and then drove home. That's the kind of juror the defense wants. The juror did disclose that he knew my associate.

Second, Officer B testified that he went to the apartment, talked to the girl, and Officer A arrived as B was walking out to the parking lot. They did not get their stories straight. Also, B testified that my client was walking out as he was walking to the apartment. One juror later told me that he thought it was significant B did not notice the client was intoxicated while passing him in the hallway. I didn't see that as important, but that's one of the things about juries - you never know what will grab their attention.

Third, my client and his wife testified well. The prosecutor's cross-examination did not go well. This is a very difficult thing for a prosecutor in a criminal case. They have no idea what the defendant will say and have difficulty preparing.

In a civil case, like our personal injury cases, both sides testify at a deposition well before trial. So the lawyers all know what everyone's story is. When you cross-examine someone, you know the answers to your questions before you ask them. There's a "rule" about cross - never ask a question if you don't know the answer. Much tougher for a prosecutor who doesn't know the defendant's story.

Two or three times during cross, the prosecutor asked what he thought was a winning question and each time the client nailed the answer. He'd explain what happened and the jurors nodded their heads like what he'd said made perfect sense (because he did make perfect sense - helps to have a good client).

Throughout the trial I focused on one thing with the jury - my client was accused of DRIVING while intoxicated. He wasn't driving. It is true that under NY law judges say you can technically be guilty. Judges are one thing, but it's pretty heavy lifting for a prosecutor to sell that one to a jury.

The jury came back with "not guilty" pretty quickly.

I just remembered one of the funnier moments in the trial. During jury selection there was an older man with a strong European accent. The prosecutor started asking him questions and the man said: "You're not going to like me. He (pointing at me) gonna like me." He went on to explain that he did not like the DWI laws. The prosecutor asked if he drinks and drives. "Of course." He provided details too. Asked about the holidays, he said: "I go to family. I have 5 or 6 drinks, put the kids in the car, and drive home. No problem." I wish I could remember that better because there was more and it was hilarious. The whole courtroom was laughing. The prosecutor decided to exclude him from the jury. I consented.

Oh, and one more detail. I was a little worried about one thing. I like trials where the jury is likely to identify with my client. Here it was an all-white and mostly blue-collar jury. My client was foreign, from a continent that is often accused of stealing blue-collar jobs, and he had a strong accent. I'm pleased to report the jury seemed to have no problem identifying with him.