Thursday, December 30, 2010

DWI: A Problem With Plea Bargaining Policies

As a criminal defense lawyer sometimes we get cases where we have pretty good but not overwhelming evidence that our client is innocent.

In some counties, I contact the prosecutor and explain the evidence. Sensible prosecutors will agree to a deal where my client pleads guilty to a lesser offense that's better than the original charge. Yes ideally it would be dismissed but this compromise tends to make everyone happy.

Then there are counties where the District Attorneys have strict plea bargaining policies.

An example is a recent DWI case where we had great evidence. Police documents indicated our client may not have been driving (something they have to prove beyond a reasonable doubt). On video, one of the cops said he was surprised the breath test result was so high because our client seemed sober. And he looked and sounded completely sober. This took place in a county where the DWI has a strict policy on plea bargaining for DWI cases. Due to policy, the only offer was for our client to plead to the charge (link is to a previous post about such policies).

A reduction to DWAI would have been reasonable and my client would have accepted it. I'd prefer a dismissal or a better deal of course, but it would have been reasonable.

Since that was not possible, we did not discuss the evidence with the DA. We simply prepared for trial. When trial came, the flaws suddenly became apparent and the case was dismissed.

The policy led to a lot of waste. My client spent a lot of time and money. The judge and court staff wasted time. So did the prosecutors. If they made deals on cases like this, they'd have more time for the stronger and more important cases. This is a DA's office that has blown some big ones.

Perhaps the worst, about 30 prospective jurors sat in court for hours.

I appreciate the concern about drunk drivers. Through my work I've seen the harm more than most. But the punitive approach is wrong, especially with defendants who have clean records. The focus should be getting drunk drivers off the road and into treatment. Plea bargaining accomplishes that.

Saturday, December 25, 2010

Bar Exam and Real World Experience

Okay, so I'm studying for the Florida Bar Exam. I am encountering one problem repeatedly. I think I'll get past it, but it's a little funny so I'll share ...

Here's a sample question from the review course:
Bob is showing off his new gun to Ted. Thinking there are no bullets in the gun, Bob reenacts a scene from his favorite movie – points the gun at Ted and pulls the trigger, hitting and killing Ted. With what crimes can Ted Bob be convicted? Please evaluate fully, including any and all defenses that may apply.

The sample partial answer deals with First Degree Murder, and concludes that Bob cannot be convicted because he did not intend to kill him (because he thought there were no bullets in the gun).

Okay, maybe in the fantasy land of law school and/or bar exams that might be the case. But in the real world of criminal lawyers, the key word here is "can," not "should":

1. Simple - The jury can infer intent from the facts. Bob pointed the gun at Ted. He pulled the trigger. There was a bullet in the gun and it hit and killed Ted.

Yes in the abstract we know Bob thought there were no bullets in the gun. But how does the jury know that? Because Bob says so? Right. How many defendants would be acquitted if that was persuasive to a jury?

2. Detailed - Police came to the trailer park and took Bob down to the police station. Strangely they didn't believe Bob thought there were no bullets in the gun. After 7 hours of interrogation without an attorney (Bob didn't think he needed one because it was just an accident), Bob said he was sorry and admitted that he was mad because Ted ate the last french fry and he wanted to get back at him. Also, Bob's jail roommate gets extra good time credit by testifying at trial that Bob admitted he did it on purpose.

In other words, Bob can be convicted of First Degree Murder because the criminal justice system is not always about justice.

I'll do my best to stick to the fantasy answer, but maybe I'll slip in the real world answer at the end ("It should be noted that in the real world ...").

Tuesday, November 30, 2010

Don't Drink and Drive!

Our public service announcement on WTEN for the holidays. I hope everyone follows this advice.

Monday, November 22, 2010

Judicial Diversion for drug felonies

This revolution has started with a whimper, not a bang.

In the spring of 2009, New York adopted a new Article 216 of the Criminal Procedure Law. It became effective in October of 2009.

This is a huge development in New York for handling drug offenders with treatment instead of incarceration, through Judicial Diversion. Or it should be. In some counties the courts are applying it faithfully. We've had reasonably good experience in Orange County and have heard good things about Westchester.

In other counties the judges and/or prosecutors are fighting it. Sadly, Albany County is one of these.

Here's what we have been saying in our memos:

Dear Judge ______:

Please accept this letter memorandum regarding judicial diversion. As we have discussed in Court, Mr. _____ seeks to participate in judicial diversion as laid out in the new CPL Article 216.

Judicial Diversion under Article 216

Pursuant to § 216.05(1), Mr. ______ can undergo a court-ordered alcohol and substance abuse evaluation. Per that subsection, this is “for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance abuse or dependence, alcohol abuse or dependence and any co-occurring mental disorder or mental illness.” We have already provided such an evaluation, by Dr. _____.

If the Court prefers to save judicial resources, we are happy to have the Court rely on Dr. _______’ report.

§ 216.05(3)(a) permits a hearing if requested, “on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment ….” Mr. _____ requests such a hearing.

§ 216.05(3)(b) lays out certain factors to be considered at such a hearing. Under subdivision (i), the Court would “consider and make a finding of fact” as to whether the defendant is eligible per § 216.00. It is undisputed that Mr. _____ is eligible.

Under subdivision (ii), the Court would consider whether Mr. ______ “has a history of alcohol substance abuse or dependence.” Dr. _______ finds that he does.

Under subdivision (iii), the Court would consider whether “such … abuse or dependence is a contributing factor to the defendant’s criminal behavior.” It should be noted here that the standard is not whether such abuse or dependence was “the proximate cause” of the crime. It is a very low standard – whether it was “a contributing factor.” Dr. _____ does find that his “substance abuse was a contributing factor.

Under subdivision (iv), the Court would consider whether “judicial diversion could effectively address such abuse or dependence.” Dr. _____ finds that Mr. ______ is “a good candidate for judicial diversion.”

Under subdivision (v), the Court would consider whether “institutional confinement of the defendant is or may not be necessary for the protection of the public.” There is no indication in this case that Mr. ______ poses any danger to the public, and Dr. _____ finds that institutional confinement is not necessary.

Thus, on all five factors specified in § 216.05(3)(b), Mr. _____ fits, and should be offered judicial diversion pursuant to § 216.05(4). I note here that Mr. ______ does not claim “exceptional circumstances” under § 216.05(4)(b) so any diversion would involve a plea of guilty.

Judicial Diversion is not the same as Drug Court

During the course of handling Mr. ______’s case and other cases, it seems that many court personnel think that Judicial Diversion is the same as or similar to drug court. It isn’t.

Judicial Diversion is governed by Article 216 of the CPL, which has several substantial provisions. By contrast, “drug court” is not well defined in the statutes. As Professor Preiser put it in the commentary to CPL 180.20:

The new procedure permits transfer of cases to another court within the same county that has been designated to operate a special “drug court” program. The program did not require any particular substantive authority, as diversionary programs have been in operation in this state for many years without specific legislation. The present statute merely facilitates use of a diversionary program by creating a mechanism for economies of scale through legislative authorization for transfer of cases; thus supplementing jurisdictional limitations of local criminal courts. Note that there is no provision as to how a “drug court” is to operate. The sole requirement is a motion by defendant, consent of the district attorney and exercise of judicial discretion to transfer the action. Presumably the operation is a matter of local county option. This would include, such matters as: whether a plea of guilty is to be required prior to or post transfer; whether there is to be a specified sentence upon a guilty plea, if entered, that will be carried out if defendant does not perform acceptably in the program; or whether a guilty plea, if entered, may be withdrawn upon successful completion of a program. A parallel provision for offenses below felony grade was added as CPL § 170.15(3).

There are many differences between drug court and judicial diversion.

Drug court is controlled at the county level with almost no state statutory guidance. Judicial diversion is covered by Article 216 which contains detailed instructions.

Drug court requires consent of the District Attorney, under CPL 180.20(3). Judicial diversion does not require the DA’s consent except where the defendant seeks to participate without entering a plea. CPL 216.05(4)(a).

Drug court covers both misdemeanors and felonies. Judicial diversion applies only to felonies. CPL 216.00(1).

Drug courts often include random visits to the defendant’s home with surprise drug tests. Judicial diversion “may include … periodic court appearances, which may include periodic urinalysis.” 216.05(5). Subsection 8 also provides:

The court may require the defendant to appear in court at any time to enable the court to monitor the defendant's progress in alcohol or substance abuse treatment. The court shall provide notice, reasonable under the circumstances, to the people, the treatment provider, the defendant and the defendant's counsel whenever it orders or otherwise requires the appearance of the defendant in court.

Monitoring of defendants under judicial diversion is much less stringent than under drug court. Please note that Dr. _______’s treatment plan includes random drug screens under the supervision of treatment personnel, so court drug screens may be unnecessary.

Probation supervision is common in drug court. It is optional in judicial diversion after the treatment is complete, and only applies where it is attached to subsequent withdrawal of the guilty plea. 216.05(10). Probation supervision is not included in the list of release conditions specified for diversion in 216.05(5).

While Judiciary Law § 212(r) does envision that judicial diversion cases would be assigned to judges who handle drug treatment courts, that is a directive to OCA, is only for supervision of such cases, and only “to the extent practicable.”

Judicial diversion does not mean putting the defendant in drug court nor the equivalent of drug court. It is not a one-size-fits-all treatment plan. 216.05(5) indicates it:

shall include: participation in a specified period of alcohol or substance abuse treatment at a specified program or programs identified by the court, which may include periods of detoxification, residential or outpatient treatment, or both, as determined after taking into account the views of the health care professional who conducted the alcohol and substance abuse evaluation and any health care professionals responsible for providing such treatment or monitoring the defendant's progress in such treatment.


In Mr. _____’s case, Dr. ______ has recommended a detailed program of treatment. He is a health care professional and has agreed to be responsible for providing and monitoring such treatment.

There do not appear to be any objections to Dr. ______’s recommendations.

Consistent with § 216.05, the Court should set conditions for Mr. _____ following Dr. ______'s recommendations, including:

[insert treatment recommendations]

While defense counsel feels it’s unnecessary (due to the treatment recommendations), 216.05(5) does permit the Court to require periodic court appearances with urinalysis. Defendant consents to this if the Court wishes to impose such condition.

Further, this program does not impose any costs on the state or county, and is thus consistent with the effort under 216.05(7) for costs to be borne by health insurance where possible.

Finally, while Article 216 is fairly new, the Court may wish to review the recent case of People v. Jordan, 908 NYS2d 844 (Westchester Co. Ct., August 2010) (defendant facing 23 count indictment offered diversion).

I respectfully submit that, absent any evaluation to the contrary, Dr. ______’s report is persuasive and unrebutted and a hearing may be unnecessary if the Court is willing to offer judicial diversion to Mr. _______.

Sunday, November 14, 2010

Albany Lawyer: What we do

I'm not sure I've ever written up a summary of what we do in our firm. We cover a few areas of law.

Personal Injury Lawyer

We handle a small number of personal injury cases, usually from car accidents and motorcycle accidents along with a few other areas.

Most of these cases are in or near the Albany area, but we do take some further away. We keep the number small by only accepting cases where the injuries are serious.

Criminal Defense

We handle a broad variety of criminal cases. The two most common areas we see are from drunk driving (DWI and DWAI) and marijuana possession.

Other cases we see include:
Petit Larceny (usually shoplifting)
Grand Larceny (mostly alleged employee theft or contractor disputes - both usually strong cases for the defense)
Aggravated Harassment (typically when someone keeps calling, e-mailing or texting their ex)
Criminal Possession of a Weapon (often in the Albany Airport)
Federal Criminal Defense (border-related offenses and drugs)

Our criminal defense practice is almost entirely within the greater Albany area (within about 100 miles). We do handle some cases further away, especially minor marijuana offenses. But for more serious cases, it becomes too expensive for most clients to pay us to travel.

Traffic Lawyer

We handle speeding tickets and other traffic offenses across most of New York State, covering almost every court north of New York City. We don't handle New York City or Long Island.

In addition to simple traffic tickets we see some criminal traffic cases involving aggravated unlicensed operation and reckless driving. We usually get these reduced to non-criminal violations.

Saturday, October 09, 2010

CLE on Solo/Small Firms - Guess Who?

November 8th I will be on a panel speaking about "Using a website and social media to build your practice":

NYSBA Solo/Small Firm Success CLE.

It will also be shown here in Albany via video conference.

You'd think they could set this up so I wouldn't have to go to New York City. But then, I get to go to New York City. Haven't figured out yet if they're paying for my train ride. Hmm ....

Tuesday, October 05, 2010

Republican vs. Democrat

Here is our new TV commercial for the Warren Redlich for Governor campaign:

Or on YouTube: Republican vs. Democrat.

The version that will air on TV is: New York: Republican vs. Democrat

Friday, October 01, 2010

Traffic Court site sees more growth

Our website is growing nicely. The image below shows the number of visitors from January 1, 2006 (shortly after we started measuring) to the present. We have helped nearly 4 million different people find information about traffic courts, with over 10 million pageviews.

September is the biggest month yet, with over 240,000 visits by over 210,000 different people (some visit more than once). It was a roughly 4% increase over August, despite August having an extra day.

September 2009 had less than 150,000 visits, a year-on-year increase of over 60%. The third quarter shows a 20% increase compared to the second quarter.

Saturday, September 18, 2010

Christine O'Donnell?

Some time ago, I acquired the domain name in an auction on GoDaddy.

A candidate for US Senate in Delaware had allowed her domain name to lapse. I bought it fair and square in that auction. I've done the same with a few other websites, both here in Albany and distant. The idea originally was to preserve the historical record of those campaigns.

Due to some controversy that developed, and a dishonest tactic used by O'Donnell (claiming a copyright violation) to try to shut down the site, I have changed a bit. With her site in particular, I removed all copied content and substituted original content. She likes that less apparently.

Anyway, I was stunned when national Tea Party groups turned to her campaign. She caught fire. I saw a result - traffic to my site about her shot up. It saw maybe 20 visits a day for a long time. Then it jumped to as many as 800 visits. A couple days before the primary it climbed to 2000 visits, then 2500. On primary day it was over 7000 visits. And the day after it was 25,000. Wow!

The graph below shows the hockey stick effect.

Traffic has gone down somewhat since then, but it's still in the thousands per day. I've added Google ads and am getting fairly good revenue. As a lark I've added a Christine O'Donnell Nude page just to see how many perverts there are in our country.

Tuesday, August 31, 2010

Out-of-state tickets for Maine drivers

We are frequently asked by clients if NY tickets will affect them in their home state. Below is an image showing a Pennsylvania ticket on a Maine driving record, and it looks like this violation did not count for points. So if it's the best that you can do for a Maine driver, an 1110(a) isn't terrible.

Our biggest blog post on this topic is Do Points Transfer from July of 2009.

Friday, August 06, 2010

AdWords, YouTube and Adult Content: This is funny!

As part of my campaign for Governor of New York State, I did a quick video to show why I don't fit in with typical politicians.

You can see it on YouTube as NY Politics: Top 10 List

One of the things I'm doing in the campaign is a very small amount of advertising. In particular I'm advertising this video on YouTube through Google AdWords. Last night I got a message that my ad had been "disapproved."

Investigating, I found that the disapproval was due to "adult content." So now I'm scratching my head. The ad reads like this:

NY Politics: Top 10 List
Bill Clinton, Eliot Spitzer, and
Warren Redlich? Governor?

I don't see any adult content there.

The image accompanying it has a picture of President Clinton and Monica Lewinsky, with the text: "#6: Never had cigar with intern"

So I understand the story behind that could be seen as adult content, but the image itself and the words can't.

So I contacted AdWords support (which is generally quite good). Here's what they said:

To clarify, the ad was disapproved because the landing page and video itself comment on prohibited content such as prostitution and tobacco
products. In order for this ad to be approved, please edit it so that it
complies with our policies.

Tobacco products? I almost fell out of my chair laughing when I read that.

Within the video, the only "prostitution" content is the line "Never caught with a hooker."

Is AdWords going overboard? If you do a Google search on terms like "Eliot Spitzer" or "Monica Lewinsky", with Google's "SafeSearch" set to strict, the top results are Wikipedia entries that have much more detailed descriptions of the relevant incidents.

Sunday, August 01, 2010

PayPal and American Express (AMEX)

The Redlich Law Firm no longer accepts American Express through PayPal.

I logged into my PayPal account today. There was a notice that, going forward, AMEX transactions will require a higher fee of 3.5% of the transaction, plus 30 cents per transaction.

We currently pay 2.2% of the transaction plus 30 cents, so on a $1000 fee, we pay $22.30. If we agreed to the 3.5% rate, we would be paying $35.30.

We think most of our clients pay with Visa or MasterCard. Most of our payments are through our website and we can't see what kind of card they use. But for our over-the-phone payments, we hear the type of card as we enter it.

We do get some AMEX transactions, but not that many. And I suspect most American Express cardholders also have a Visa or MasterCard.

I'm stunned at the attempt to grab so much more money from PayPal sellers. If it had been an extra 0.2%, maybe I would have swallowed hard and agreed. But the extra 1.3% works out to a greater than 50% increase in cost of this service.

This will make it easier to throw out the American Express card offers I get in the mail all the time.

Sunday, July 11, 2010

LeBron James Parody Video

Here's our campaign's new video, a parody of the LeBron James Decision:

See more about the campaign at

Friday, July 02, 2010

Joe Bruno and the Supreme Court

One prominent local lawyer keeps insisting that Joe Bruno's case will be dismissed because of the Supreme Court decision in Skilling. He might be right but I'm not so sure.

The attorney talks about how the Supreme Court decision limited the "honest services" law to bribes and kickbacks. He claims that this case did not involve a kickback.

Bruno's case is right on the edge of this, however. In their motion papers, the Government pointed out what was in the jury instructions:

In addition to a conflict of interest, the jury had to find that (1) the conflict of interest was material, (2) Defendant took "discretionary action directly benefitting the individual or organization behind that financial interest," and (3) Defendant "acted with the intent to deprive the public of the intangible right of honest services."

It's clear that Bruno received money from someone (Abbruzzese). If the jury found that he took discretionary action directly benefiting that individual, then that's awfully close to a kickback or bribe.

My favorite quote from the local attorney who supports Bruno is that he says "every legal scholar who has looked at this" says Bruno's case doesn't fit.

Um, exactly which legal scholars have looked at Bruno's case? Did Harvard Law School have a symposium? And how many of these scholars are friends of Bruno?

The Supreme Court decision in Skilling was a completely different case. There was no outside individual giving Skilling money or getting a benefit. The jury instruction mentioned above does seem to fit in the general ballpark of bribery and kickbacks. Joe Bruno may still be going to Club Fed.

Saturday, June 26, 2010

How often should you update your blog?

I often read or hear people say that a blogger should post frequently, like once a day or more. I don't come close to that and have been quite happy with the results. This blog gets 4000-5000 visits a month.

Finally someone saying what I've been thinking:

Thanks Matt!

Friday, June 25, 2010

Joe Bruno, Jeffrey Skilling and "Honest Services"

There's been a lot of talk in the local news about Joe Bruno and the recent Supreme Court decision - Skilling v. United States, 561 US ____.

Bruno was convicted under the "honest services" law, 18 USC § 1346. So was Jeffrey Skilling, of Enron fame. Skilling's conviction under this statute was overturned by the Supreme Court, and many are wondering if Bruno's conviction will also be overturned.

Skilling sought to have the entire statute declared unconstitutional. The Court did not go that far. The critical language of the decision for Bruno is the following from page 49 of the slip opinion:

The Government did not, at any time, allege that Skilling solicited or accepted side payments from a third party in exchange for making these misrepresentations.

In Skilling's case (as I read it), while he did do something wrong (misrepresent Enron's financial condition) he did not accept payments from a third party.

With Bruno, by contrast, it seems clear that he accepted side payments from one or more third parties, totaling about $280,000. The Times Union put it this way:

It was his dealings with Abbruzzese, who benefited from Bruno's legislative power, that were central in the two felony counts on which Bruno was convicted.

If that's accurate then Bruno did receive side payments and a third party benefited from Bruno's actions as a legislator. The Supreme Court decision will not help Bruno. He's still going to prison.

As an aside, my favorite quote from the Times Union article is this one:
The judge called the testimony of Bruno's former Senate lawyers "eye-popping" and said he was "disgusted" they had advised state senators to hand-deliver their annual ethics disclosure forms to avoid federal mail fraud charges. Sharpe also reminded Bruno that those lawyers worked for the state of New York and its citizens, not Bruno.

Lawyers working for us advised legislators to avoid mail fraud charges by hand-delivering their ethics disclosure forms. Ugh.

Thursday, May 27, 2010

Carl Paladino

The Tea Party movement has a new star in New York. But is he really a Tea Party guy? Find out more about this new site about Carl Paladino.

Okay, maybe I'm a little biased. But everything on the site is true.

The best part? This video:

Carl Paladino Tea Party video

Saturday, May 15, 2010

DWI Trial: BAC of 0.16 and a Not Guilty Verdict

I got a few calls about my recent DWI trial so I figured I should tell the story. Despite a breath test showing a BAC of 0.16, the jury found my client not guilty.

Here are some details:

For starters, breath tests are not reliable -- see my post on breath test videos for some idea. Also key - in this case my client was innocent. For a variety of reasons, I have no doubt whatsoever.

My client, a retired engineer, had been at home with his wife and her parents. Over a period of three to four hours they shared one bottle of wine, with my client having two glasses. Driving the in-laws home at night, a dog ran out in front of the car.

Client turned around and went back. He turned around again and positioned his car to protect the dog, and put his flashers on. He got out of the car and asked a neighbor to call 911. He stayed at the scene. When the police arrived and asked who the driver was, he stepped forward.

These actions are not consistent with guilt.

The neighbor testified at the trial for the prosecution. While he did smell alcohol on my client's breath, he did not notice any slurred speech, problems with balance, or anything else that might have suggested he was intoxicated.

On the prosecution side, both officers testified that my client had slurred speech. The arresting officer said he had trouble walking and standing - in other words, my client was "falling-down drunk." Strange that the neighbor didn't notice this. Also strange that this officer, in filling out his paperwork that night, did not check the box for impaired speech.

The arresting officer was one of the worst police witnesses I've ever seen, and I'm not the only one with that opinion. At one point he insisted that he'd gotten my client back to the station at 7:30 pm, even though he didn't arrive at the scene of the incident until 7:40 pm.

The time he arrived at the station matters. Police are supposed to observe a suspect for 20 minutes before he blows into the machine, to watch for things that can throw off the test. In this case it appears he arrived at the station 27 minutes before the breath test. The arresting officer said that he kept my client in the booking room for more than 20 minutes. The breath test operator said that he observed my client for more than 20 minutes in the breath test room. Somehow they squeezed that 40+ minutes into the 27 minutes he was there. Or, they didn't observe him properly.

The breath test operator seemed credible. He kept saying that the device is a "highly reliable scientific instrument." When I pointed out that it had been off by ten percent 39 times in a row testing the lab-calibrated solution, he said that was within the parameters. If your speedometer was off by 10%, would you consider that highly reliable? If the gas pump gave you 10% less gas than you paid for, how would you feel about that?

I raised the Confrontation Clause issue with respect to documents that show calibration of the device (see my post on DWI and Melendez-Diaz), and the judge ruled it didn't apply. I'll explain more about this below.

I also tried to raise the problems at the State Police lab that did one of the calibrations. The solution calibration document was signed by Keith Coonrod. Per the NY Times and others, Coonrod covered up widespread systemic problems at the lab. The judge wouldn't allow me to ask the breath test operator if he was aware of these problems.

In our case, Defendant, his wife and her parents (age 90+) all testified that he had 2 glasses of wine over a 4-hour period and that he showed no signs of intoxication.

It was a close call for the jury - they took nearly 5 hours to decide and wrapped up at 11:45 pm on the second day of trial. They found him not guilty.

You'd think I'd be thrilled but that's not the emotion. When you believe your client is innocent, and you get a not-guilty verdict, the feeling is relief.

Getting back to the Confrontation Clause issue, this is really important. I can't cross-examine a machine. The breath test operator comes into Court and testifies how he operated the machine, but he is not competent to explain how it really works, nor to explain it's potential weaknesses.

I've had a number of cases where video showed my clients with no signs of intoxication in the face of police testimony that they had slurred speech, balance problems, etc. The general public does not know what I know from my work, so breath tests have an aura of accuracy and reliability in the public eye. It's wrong.

If the prosecution is going to rely so heavily on this "black box," then the details underlying it are essential facts in the case. They should be required to bring in the supporting witnesses so the defendant has a chance to confront and cross-examine them. Experts are commonly used in other states, like California.

Two other appropriate safeguards for DUI arrests are:
1. Repeating the test a second time, say 10-20 minutes later, to make sure you get a similar result;
2. Putting video cameras on every police car and in every police station - this also protects police from false accusations.

What worked in this trial? There were two things I did that made a huge difference.

First, I attacked the breath test's aura right at the beginning, in jury selection, and I kept attacking it throughout the trial.

Second, I emphasized the reasonable doubt standard, starting at jury selection. If you as a juror have any doubt, and you have reasons for that doubt, then you have to say not guilty.

Thursday, May 13, 2010

Traffic Court Milestones

A few new milestones for our traffic court directory:

In the last 31 days (4/12 to 5/12), we had just over 200,000 visits. There were 175,000 unique visitors in that time (the "unique" roughly means different people).

And we now have over 10,000 courts on the site. Actually just over 10,100.

Wednesday, April 14, 2010

iPhone Google Maps glitch

Tried to plan my trip to a nearby office this morning using Google Maps. This was the result.

Google Maps on the computer came up with a much better option:

Hmm ... 25 miles in 26 minutes, or 6 miles in 13 minutes ... :-)

I love my iPhone and the Google Maps app, but you can't trust technology too much.

Thursday, March 18, 2010

Driving Record and Car Rentals

Most of our speeding ticket clients are concerned about insurance rates. But we also get calls from people who don't own cars. They rarely drive and when they do it's a rental.

So a common question is: Can my driving record affect my ability to rent a car?

The answer is yes, it can. As an example, see this FAQ answer from Thrifty.

Certain things they look for:
1. Suspended or revoked license
2. Eight points in the past two years
3. Three moving violations in the past three years
4. Two accidents in the past three years
5. During the past four years, any of: reckless driving, fatal accident, operating without insurance, vehicle crimes, failure to report or leaving the scene of an accident

The 8-points thing is odd. Every state has its own point system. It's much easier to get 8 points in NY than it is in California.

So, if you rent cars, this means it's not a bad idea to hire a traffic lawyer to help with your ticket.

See also this NY Times article on car rentals.

Wednesday, March 03, 2010

Traffic Court - New Records

Google Analytics defaults to the last 31 days. We just hit new records for - over 190,000 visits and over 400,000 pageviews in 31 days. To put it another way, we are now on a pace to help over 2 million people a year.

Thursday, February 25, 2010

Confrontation Clause in New York

In January the US Supreme Court reaffirmed its recent decision about the Confrontation Clause. The new case is Briscoe v. Virginia. I wrote about this in the context of DWI in NY - Melendez-Diaz.

New York's highest Court addressed Melendez-Diaz. Here are some quotes from People v. Brown (11/2009 - 13 NY3d 332):

The main issue raised on appeal is whether defendant's Sixth Amendment right to confrontation was violated by the introduction of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME. Because the report is “nontestimonial,” we hold that its admission did not constitute a Crawford violation ....


Here, unlike Melendez-Diaz, the People called the forensic biologist who conducted the actual analysis at issue, linking defendant's DNA to the profile found in the victim's rape kit. She testified that she had personally examined the Bode file; she interpreted the profile of the data represented in the machine-generated graphs; and she made the critical determination linking defendant to this crime. She also stated that she was familiar with the procedures and protocols used by Bode, and defendant could have challenged such claim on cross-examination.

The Bode report, furthermore, was not “testimonial” under such circumstances because it consisted of merely machine-generated graphs, charts and numerical data. There were no conclusions, interpretations or comparisons apparent in the report since the technicians' use of the typing machine would not have entailed any such subjective analysis. These technicians would not have been able to offer any testimony other than how they performed certain procedures.

Key details to note:
1. The prosecution offered an actual scientist who had worked on the case.
2. There were no conclusions in the report.

Thus, in a DWI case where the prosecution brings only a police officer and attempts to use a report showing a conclusion (like the BAC was X or the machine was properly calibrated), Courts should preclude the evidence as violating the defendant's Confrontation Clause rights.

Monday, February 22, 2010

Tales from the Script

I'm reading this new book, Tales from the Script, and I love it. It's about screenwriting and filmmaking, providing great insights from screenwriters, and also from other players in Hollywood.

This is my friend Peter Hanson's baby. He used to write for Metroland, and has a lot of friends here in the Albany area. I was already a fan but now I'm a much bigger fan.

You can buy Tales from the Script on Amazon.

There's also a DVD coming out, and it will be screened at the Spectrum sometime in March. I can't wait.

Tuesday, February 02, 2010

Dealing With Police: Film

The group Flex Your Rights has a new film. The premiere will be shown live on the web at: 10 Rules for Dealing with Police. I'm looking forward to it.

Their previous film is on YouTube - Busted: A Citizen's Guide to Police Encounters.

Saturday, January 23, 2010

How long does a ticket stay on your record in NY?

Speeding tickets and other traffic infractions that happen in New York will show up on a NY driving record. First of all, it only shows up on your record after you've been convicted (if you plead guilty to something or if you lose at trial). Second, in my experience they seem to stay on a record for about three-and-a-half years.

While researching something else today, I came across the definitive answer.

Vehicle & Traffic Law § 354 says that the driving record, or abstract, "shall include enumeration of any convictions of such person of a violation of any provision of any statute relating to the operation of a motor vehicle or any accidents in which a motor vehicle driven by such person has been involved during the current calendar year and the three calendar years preceding that in which the request for the operating record is received ...."

Translating from the legalese:

1. "enumeration of any convictions" - As I said above, it goes on your record when you get convicted, not when you get the ticket.

2. "violation of any provision of any statute" - This is interesting. In one court we handle tickets often get reduced to city code violations instead of state law violations. Does a city code traffic violation go on a driving record? I don't think a city ordinance is considered a statute (something to research perhaps). I've never seen one of these on a driving record.

3. "relating to the operation of a motor vehicle" - What relates to operation? In my experience, most VTL violations do show up on a driving record. The big exception is VTL 1201(a), commonly known as "parking on the pavement", though I've also heard it called "unattended vehicle." I've never seen those on a record. But a seatbelt violation does show up on a record. Does wearing or not wearing a seatbelt really relate to operation?

4. "during the current calendar year and the three calendar years preceding" - That's pretty close to about 3 1/2 years. If it's January of 2010, the record should include everything that happened in 2010 (only January) and the three years before that (07, 08, and 09), or just over three years. But if it's December of 2010, then it covers all of 2010 and the same three previous years, or nearly four years.

So here's a tip. This suggests the best time of year to shop for car insurance (if have a busy driving record) is January. That way the record will only show three years of your misconduct instead of four.