Warren Redlich

If you're looking for photos or images of Warren Redlich, we have the latest here. When Warren is not working as a Realtor or attorney, he's living life. Here's a brief gallery.

 

Warren Redlich is a man on the move. In this case moving while he's supposed to be still for a photo. Eventually we got it right and here's Warren where he's supposed to be:

 

When he's not modeling, Warren is either working or eating. Sometimes they go together. Here's Warren Redlich eating a hot dog with West Boca News advertiser John (Jack) Rose at his hot dog stand in West Boca Raton, Florida.

 

Sometimes he gets to spend time with old friends. Here's Warren Redlich with some of his old high school buddies. They met in Myrtle Beach for a golf and beach vacation. It was a great trip.



Then there's training. Here's Warren with some Florida friends including Alex Berry and Marc Tancer (the sad Jets fan and owner of Taggart Trading) at a shooting range in Okeechobee. Those paper targets did not look healthy after this crew was done with them.




And then there's quality time with the wife, in this case at a breast cancer walk at Mizner Park in Boca Raton.

 

Carmelo Laquidara for Rensselaer District Attorney

The Albany Lawyer has been quite for a while. Moving to Florida will do that to a guy.

But today we learned that Carmelo Laquidara is running for District Attorney of Rensselaer County.

I've dealt with Carm in his roles as a prosecutor, defense lawyer and judge. He's a class act, a real pleasure to work with, and someone who has common sense. I could not imagine a better person to become District Attorney, anywhere.

Go Carm!

Google Canonical Quirk?

How well does Google handle the canonical tag?

We just found a quirk that makes us wonder. Here's what piqued our interest - we noticed some landing pages in our Google Analytics that were not consistent with our url structure. Check the image below:



As you can see, two of our top landing pages appear twice under slightly different urls. One version includes a 4-digit number (the post id) at the end of the url and the other does not.

Several days ago, before we published these articles, we changed to our current url structure where we added the post id to the end of each post url (in the hope of getting into Google News). So it could make sense that some source of traffic might get the old urls. But we published these particular articles after the change, so they were never "published" to search engines under the old structure.

Our Facebook, Twitter and Google+ posts were all linked using the new url. And we do include the tag in our posts, pointing to the url with the 4-digit number in it, as you can see below:


At first we weren't sure what source was sending users to the link without the post id. So we searched for the article title and sure enough, we saw that Google was directing users to the old url:



We don't understand why, but the first search result has my authorship, and the link does not include the 4-digit code. The second and third results do include it, and the 2nd one is from before we changed our url structure.

Is this important? It doesn't seem to be a huge deal. But it's an interesting quirk in Google's search results

Paul Anthony Ciancia: LAX Shooter

The hot story of the week is the shooting at Los Angeles International Airport. The authorities have accused Paul Anthony Ciancia of being the shooter. There are some holes in the story. We'll see how this one turns out.

DUI Book - July 4th Sale

The Albany Lawyer's new book is on sale this week.

Fair DUI: Stay safe and sane in a world gone MADD includes practical strategies to avoid drinking and driving, advice on how to handle police encounters, and policy suggestions to protect the innocent and make our roads safer.

Get the details at FairDUI.org.

DUI Book Now on Kindle

Warren's DUI book is now available on Kindle. The paperback is coming soon.

If you're on a budget, we suggest waiting until June 30th, when the book will go on sale for a few days.

Keep track of the book on the Fair DUI website.

DUI Book

A new DUI book is coming soon from Albany lawyer Warren Redlich.

The working title is "Fair DUI – How To Protect Yourself From The MADDness".

In the book, Warren challenges some of the ideas pushed by Mothers Against Drunk Driving. The main focus is advising people how to avoid driving drunk, and how to handle yourself in traffic stops, arrests, and what do to after you're released.

The book should be available on Amazon Kindle in the summer of 2013.

iPhone Shuffle Repeats Same Song: The Fix

A friend was experiencing a really annoying problem with her iPhone. She would hit shuffle within a playlist or album. Instead of shuffling the songs on that list, it would repeat the first song over and over.

Took me a while to figure it out, but I found the problem and how to fix it.

While there are several web discussions about iPhone shuffle problems, I had trouble finding the answer but eventually did figure it out. This post should make it more obvious.

First, you need to tap the screen while you're playing a song. You should see something like this:

Notice the two orange symbols on the left and right just below the line showing how many minutes have played in the song. The one on the right indicates that it's shuffling songs. The one on the left is the important one for this post. If it's lit up like in this picture, it indicates that the same song will repeat.

Here's a closer look:

If you click on that icon on the left, it will change the repeat setting. Clicking it once should add the number 1, which indicates the song will repeat once. You're almost there:

Click it another time and it will go to gray, which means it's not repeating at all:

Now you should be done and it should work properly. Hope this works for you!

Florida School Parking Lots and Concealed Carry

[L]icensed parents can legally carry a concealed weapon in the car during [school] pickup and drop-off [but cannot] carry a concealed weapon into a school building and not even ... outside the vehicle in the school parking lot.

Read more at: Florida School Parking Lots and Concealed Carry

Suffolk County Traffic Court

Suffolk County's traffic tickets will be handled in a new Suffolk County Traffic Court, effective April 1, 2013.

In the past, cases were handled in Suffolk County Traffic Violations Bureau, an arm of the DMV. The new court is under the auspices of the county.

This is good news for pretty much everyone. TVB is known for being difficult. The new traffic court seems to be structured like the Nassau County Traffic Court, which is easier to work with while still upholding the law.

The new court is formally titled Suffolk County Traffic and Parking Violations Agency.

Sulaiman Abu Ghaith Indictment Should Be Dismissed

Bin Laden's brother-in-law has been indicted and is being held on the charge of conspiring to kill Americans. Having reviewed the indictment, it should be dismissed. Why? The caption of the indictment first:
 

"Conspiracy to Kill US Nationals" - Got that?
Next, the important part of the indictment is where it describes his "Overt Acts":


Let's get this straight:
1. In May 2001, he "urged" people to swear allegiance to Bin Laden.
2. He told Bin Laden he would "assist" him.
3. AFTER 9/11 Bin Laden summoned him for assistance.
4. AFTER 9/11, he gave two speeches and said mean and nasty things about the US.

#1 is vague. Were the urged people involved in the 9/11 attacks? Did he know that Bin Laden was planning to kill Americans? It ain't in there.

#2 cannot be a crime. He said he would assist. Did he actually assist Bin Laden? Did this assistance involve killing Americans? Or is this about the speeches he gave AFTER the Americans (and others) were killed?

#3 cannot be a crime. Bin Laden summoned him - that's Bin Laden's action, not Abu Ghaith's.

#4 cannot be a crime. He made speeches. That's it?

To be clear, I think Abu Ghaith is evil. He preaches hatred against Jews, and I'm in the tribe. But this indictment doesn't make out anything remotely close to a crime. Judge Kaplan should dismiss it and order the Feds to return Abu Ghaith to the authorities in Jordan, Turkey or Kuwait - Abu Ghaith's choice. For another take on the indictment, see LawFare.

Cuomo Limits Speeding Ticket Deals

Governor Andrew Cuomo is on the warpath again, this time against speeding tickets. Or so it would seem.

This morning I got a panicked call from a lawyer friend, who read this article: Speeding Ticket Plea Plan on Fast Track, in the Times Union.

The article gave at least some the impression that there would no longer be deals on speeding tickets in local traffic courts. A local attorney is quoted saying:

He doubts eliminating most plea bargaining on traffic cases would get past the Legislature. ... [M]aking plea bargains difficult would tie up local courts with traffic cases.

Some quick research called off any sense of panic. The plan would not really make plea bargains "difficult" nor eliminate it. And there is no fast track - that looks like something a headline editor came up with to make it catchy (speeding ticket - fast track - get it?).

After digging through recently submitted bills in the legislature, I found S02605, a bill in the Senate. Section C of the bill does a few things:

1. It would repeal §1101 of the Vehicle & Traffic Law, a sensible move. VTL 1101 is a catch-all law that says you're supposed to obey the traffic laws. Yes, it is that dumb. Some courts have used 1101 as a plea bargaining option, treated as a no-point violation that does not show up on a driving record. A couple years ago a DMV counsel opinion (pdf) said: "it is not appropriate for law enforcement personnel to charge a violation of §1101 or for a court to convict someone of such a charge."

So repealing 1101 is to some extent just housecleaning while also eliminating a plea bargaining option.

2. Here's the beef. For speeding tickets of more than 20 mph over the limit, any plea bargain would have to include points, with an exception. Under current law we defense lawyers are often able to get our clients plea bargains where their ticket is reduced to a parking ticket, typically under §1201. These do not show up on driving records.

This is not that big of a deal. Some prosecutors and judges won't reduce a speed of 21 mph or more to a parking ticket anyway. Keep in mind that a speed of 21-30 mph over the limit is 6 points (8 points for 31-40 over and 11 points for 41+), so a reduction to a 2-point moving violation is not bad for most drivers.

The law also leaves an exception, allowing the District Attorney to consent to "another charge" - i.e. something without points. If this happens the Court is supposed to put the reason for the exception on the record.

Of course, for tickets with speeds of 20 mph or less over the limit, we can still get reductions without any special exception. But even then there's no guarantee because each prosecutor and each judge have their own ways of doing things.

Now here's an interesting loophole: Since the Cuomo plea restriction affects guilty pleas, it does not limit so-called traffic diversion programs. In at least one county (Broome County Diversion Program), the District Attorney has a program where the defendant pays a $150 fee to the DA, submits proof of completion of a traffic safety class (i.e. driving school at additional cost) and then their ticket is dismissed. Because it's a dismissal, the limitation on guilty pleas does not apply.

Keep in mind that Cuomo's underlying purpose is to get additional money from traffic tickets. If your ticket is reduced from a speed to a parking ticket, the fine money goes to the town and there's no surcharge. Under the new rule, if passed, you will pay a higher fine and a surcharge, and most of that money will go to the state. Cuomo claims this will bring in $58 million in new money to the state, but  it's a trick. Following a long line of NY politicians like Pataki, Bruno and Silver, and of course his own father, he's stealing money from the towns and raising the speeding ticket tax on drivers.

The DAs started their traffic diversion programs as a way of getting their greedy hands on some of that money - they get $150 a pop, stiffing both the towns and the state. The odds are that Cuomo and the legislature will figure that out and ban the traffic diversion programs soon enough. But for now, we suspect more DAs will jump on the diversion bandwagon.

It's still wise for anyone with a traffic ticket to hire a lawyer. Because of our experience, we are in a better position to assess how your ticket will affect you and what the best option is for your case. And while you can hire a cheap lawyer, you might get what you pay for. Update: New article in the Buffalo News.

Why the Cuomo Gun Ban Violates the Second Amendment

NY Governor Andrew Cuomo's new gun control, the so-called SAFE Act (Secure Ammunition and Firearms Enforcement Act), is unconstitutional. I'll explain in some detail below, but in short the new law flies directly in the face of the purpose of the Second Amendment.

The law explicitly goes after "military-style" firearms while purporting to protect hunting and sporting purposes. The Second Amendment is not about hunting and sporting uses of arms. Despite all the disputes about the phrasing, there can't be any question that it refers to "militia" and "the security of a free state." Neither of these has anything to do with hunting or sports.

Some of the key language showing the improper purpose is in the Statement of Support of the Senate's NY SAFE Act legislation.

While the Second Amendment protects the right to keep and bear arms, the Supreme Court has said that that right is "not unlimited." ... The Court also recognized there is a "historical tradition of prohibiting the carrying of 'dangerous and unusual' weapons."... Some weapons are so dangerous and some ammunition devices so lethal that we simply cannot afford to continue selling them in our state. Assault weapons that have military-style features unnecessary for hunting and sporting purposes are this kind of weapon.

The key language here shows that the legislative intent is to discriminate against "military-style" features, and favoring (in a relative sense) hunting and sporting purposes.

In the earlier part of the quote they refer to Supreme Court decisions, mainly quoting Heller. But there is a problem from United States v. Miller, a 1939 case involving a short-barreled shotgun. Here's what the Miller Court said back then:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

The Miller Court ruled that Mr. Miller (and his friend Mr. Layton) were not protected by the Second because a short-barreled shotgun was not military equipment and had no relationship to militia use. This is precisely the opposite of what Cuomo is going for with his gun ban.

Unfortunately for those of us who support the Constitution, Justice Scalia threw us a curve ball in the Heller decision.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” ... It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

To which the only sensible response is: Huh?

Scalia was unusually and dangerously loose with his language here. It certainly sounds like he's saying the M-16 can be banned, and acknowledges that this detaches the right from its purpose. Not only does he mention the automatic M-16, but also "the like." By "the like" does he mean the semi-automatic AR-15, which is visually but not functionally similar? Or does he mean similar military rifles that are also automatic and used in actual military service. What does he mean by dangerous? Aren't all firearms dangerous? The AR-15 is perceived by many gun owners as less lethal because its .223 cartridge has less energy and a smaller bullet than more powerful hunting rifles like the .308 and the 30-06. What does he mean by unusual? The AR-15 is hardly unusual among gun owners - it's one of the most popular rifles.

Since the underlying case in Heller was about handguns, this portion is what lawyers call dicta. It's not a holding but a more casual comment that does not have much value as precedent. But it's troubling all the same.

It's as if Scalia is arguing with himself (and losing). Earlier in the decision, Scalia defended the Second as an individual right, referring to the prefatory clause:

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause .... But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. ... 

Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents.

This, it should be noted, is in the holding and is thus more important as precedent than Scalia's confused comments in dicta. Now Scalia sounds like Alex Jones, talking about tyrants suppressing political opposition.

When the Cuomo gun ban heads to SCOTUS (as the Supreme Court of the United States is sometimes known), the Court will have to first come to grips with the purpose of the Second Amendment. While the only sensible reading is that in includes military arms, we can't count on the Court being sensible. With anemic conservatives like Kennedy and Roberts on the bench, we could end up with a ruling that leaves no purpose at all.

This would bring us to the next step - scrutiny of the challenged law. It seems likely that SCOTUS will retain the notion that there is still an individual right to keep and bear arms. Being a fundamental right, the Court will likely apply strict scrutiny: Asking whether the law narrowly tailored to a compelling state interest.

On the latter point, the Court will find that preventing gun violence is compelling. Pretty much anything is a compelling state interest anyway. But the narrow tailoring may be a problem for Governor Cuomo.

The stated purpose of the legislation is:

This legislation will protect New Yorkers by reducing the availability of assault weapons and deterring the criminal use of firearms while promoting a fair, consistent and efficient method of ensuring that sportsmen and other legal gun owners have full enjoyment of the guns to which they are entitled. A thoughtful network of laws provides the toughest, most comprehensive and balanced answer in the nation to gun violence.

So the Court should address whether the new law protects New Yorkers, deters the criminal use of firearms, and reduces gun violence.

If the law is challenged on this ground, it should have substantial problems. First, the prohibited weapons are rarely used in crimes. Back in 1997 the Bureau of Justice Statistics (pdf) found that "military-style" guns were used in less than 2% of crimes. This definition was broader, including machine guns (which are already illegal). If the banned weapons are rarely used in crimes, the law is not narrowly tailored to the purpose of deterring the criminal use of firearms.

Another phrase often used in strict scrutiny analysis is whether the law uses the least restrictive means necessary to achieve the goal. Here the Cuomo ban is highly and broadly restrictive. It bans "semi-automatic guns with detachable magazines that possess one feature commonly associated with military weapons." From reading the language, it appears the features are listed in subsection 22 of Penal Law §265.00. This would ban nearly all semi-automatic rifles, shotguns and pistols. Caliber is irrelevant, extending even to .22LR guns which pack less punch than a home run ball.

Assuming the Court properly applies strict scrutiny (and that is a big assumption), Governor Cuomo and the State of New York will have the burden - they will have to prove - that this law is narrowly tailored and uses the least restrictive means. The law is so broad in what it bans that it's hard to imagine SCOTUS finding it meets the test.

Then the question will be how the Court resolves the case. Second Amendment supporters should hope they discard Scalia's odd dictum and acknowledge the military purpose of the Amendment. If so, the Court should reject the whole statute, as its stated purpose (banning military-style weapons) is unconstitutional. If not, the Court will have to pick and choose which weapons are properly banned, which cannot be banned, and they will likely leave an unclear middle ground of guns that should get some other treatment. This would spark decades of litigation over that middle ground, enriching lawyers like me beyond the dreams of avarice.

Update: For an FAQ from Cuomo - Governor's NY SAFE Act FAQ Second update: Apparently the law was written so hastily they forgot to exempt police from it: Reason.

As for Governor Cuomo, during his 2010 campaign some referred to him as the Status Cuomo, a play on status quo. He has now proven that this moniker really should be the Statist Cuomo. But that's not a surprise.

Full Disclosure: I ran against Governor Cuomo in that 2010 election as the Libertarian candidate. As for my constitutional analysis, I have little experience with appeals, mostly losing, and even less experience in federal court. So take anything I say here with a couple grains of salt. And maybe a drink.

Dennis Drue: The Rush to Judgment

A few days ago I got a call about a drunk driving case. Early in the conversation I realized this was going to be different.

This was actually about the Northway accident that killed two Shenendehowa students. The caller was a 16-year-old girl from a nearby town. She had all sorts of questions about how the "killer" had been able to get his license back after multiple DWI convictions and other problems. She was very upset by the deaths, and looking for answers.

I hadn't heard about the case yet. But something didn't sound right. I started reading news articles and reading what Albany friends were saying about it on Facebook.

The newspaper reports indicated that Dennis Drue was driving another car and there was an accident between his vehicle and the Shenendehowa vehicle. There were suggestions that Drue had been drinking, and that his vehicle was going 70 or 75 mph, but these were not hard facts. It quickly came out that Drue's license had been revoked in February 2009 (over 3 years ago) for having 3 speeding convictions. It was reinstated in 2010, which is normal. He also had some criminal history but it also appears to be old (2008) and fairly minor. Then there are more recent allegations from his landlord.

One friend of mine on Facebook demonstrated the vitriol directed at Mr. Drue:

he has multiple convictions for speeding which resulted in his suspended driving priviliedges for a year, ... Couple that with multiple instances of illegal substance abuse arrests/dealing complaints or ticketing, and oh by the way observation by police, ... he is a drug using, drug selling lowlife.

And there's this lovely image accusing Drue of causing these deaths because he "had a party behind the wheel."

Source: DWI Hit Parade

Despite multiple reports that no charges have been filed against Drue yet, some say charges against him are "pending." Examples include News10 and YNN. That seems to be false and arguably actionable defamation. There's no indication he ever had a DWI arrest before. There are suggestions of drug problems, but at the same time he appears to have been doing well in school.

Initial anger that Drue may have been drunk appear to have been false, as the blood test report came back low. Now they're looking to see if there are any other drugs in his blood. Even if they do find something, it will be difficult to prove such drugs "impaired" his driving.

While some are labeling Drue a murderer, we do not know yet how this accident happened. Police appear to be doing an accident reconstruction. They will use tire marks and other marks on the pavement, along with other evidence, to try to piece together what happened. Accident reconstruction is far from perfect. We had a case in Saratoga County where the police reconstruction had my client's 5' long motorcycle making tire marks that were 7' apart. Indeed, one news report indicated that one of the victims was ejected from the vehicle. This suggests she was not wearing her seatbelt.

It is unfortunate that so many people have rushed to judgment on Dennis Drue. We don't know yet what happened, and we may never know for sure. His lawyer, Steve Coffey, deserves some credit for trying to bring out Drue's positive side: Troy Record.

We all feel for the victims and their families and friends. But this is a time for calm, reasoned review, rather than hasty and angry judgments. While Drue may or may not be responsible for this crash, we should look at all possible ways to prevent such incidents and minimize the damage that causes.

Book Review

Just a quick pointer to my recent Book Review of Rand Paul: Government Bullies.

NY DWI Repeat Offenders: New DMV Rules in 2012

In my previous post I covered the phony emergency and bureaucratic end run in the new NY DMV DWI rules.

Now let's get into the meat of the new rules, all of which can be seen on the DMV Proposed Rules page (for now).

Update: A number of people have called me asking what they can do about their situation. A friend of mine, Eric Sills, is working on challenging the new regulations. His office phone is 518-456-6456.

I'll start with the one that will affect the most people.

DMV rule 134.10(b) covers the process of getting your full license back after completing a rehabilitation program, commonly referred to as the DDP (Drinking Driver Program (pdf)). The amended language excludes you if you have:

two or more alcohol or drug-related driving convictions or incidents within 25 years from the date of enrollment in the program.

Here's an extreme scenario: In 1996 when you were 20 years old, you were arrested with a blood-alcohol content of 0.02 and convicted of VTL 1192-a - the Zero Tolerance Law.  In 2020 you're arrested for a DWI with a 0.06 BAC (I've seen it happen). Not knowing any better, you plead guilty to the DWI and your license is revoked. When you go to get your license restored, DMV refuses because of that 24-year-old zero tolerance conviction.

Anyone who's had any kind of DWI case in the past 25 years (and going forward) may face this problem. Most people in this situation will have a conditional license that lets them do most of the driving they need, but it will create significant problems for some.

We don't know the precise numbers in NY, but you might be surprised how many people have something on their record. According to a Minnesota DPS report (pdf, page 22), over 10% of their drivers have one. I've seen other numbers putting it as high as one in seven. If you live on a street with 20 houses averaging 2 drivers per home, then on average you've got about 5 neighbors who have a DWI history.

Part of the problem with the new rules are the broad definitions relating to "dangerous" drivers. Second 132.1(a):

Alcohol- or drug-related driving conviction or incident means a conviction of a violation of section 1192 of the Vehicle and Traffic Law, a finding of a violation of section 1192-a of the Vehicle and Traffic Law, a conviction of an offense under the Penal Law for which a violation of section 1192 of the Vehicle and Traffic Law is an essential element, or a finding of refusal to submit to a chemical test under section 1194 of the Vehicle and Traffic Law, not arising out of the same incident.

This includes anything under Section 1192. That's not shocking, but it includes the non-criminal DWAI offense under 1192(1), which is generally cases with BAC under 0.08, and widely perceived as far less serious than Aggravated DWI 1192(2-a) with BAC of 0.18 or higher. Treating these two offenses as the same is questionable.

The definition also includes 1192-a - the Zero Tolerance Law which is for a BAC as low as 0.02 for a young driver. Do we really want to punish people in their 40s for driving after one beer in their late teens?

And the definition includes "finding of refusal to submit to a chemical test." These findings are made with nowhere near the procedural protections one gets in a criminal case. The "hearing" is held in a tiny room in a DMV office. There is no jury. The decision is made by an Administrative Law Judge (ALJ). He (usually male) is an employee of the DMV, not like a judge in the court system. There is no discovery - zip, zero, nada, none. Your right to cross-examine the police officer is limited by the whim of the ALJ. Some of the ALJs are fair. Some aren't. If you can't afford a lawyer you don't get a public defender. You do have the right to an attorney, but many people don't know what their rights are. In a criminal proceeding the judge is required to instruct you about your rights. Most people don't even go to the hearing, and they lose even when they're innocent.

There's more in the definitions, but what matters here is how this impacts people. The new regulation under Section 132.2 calls for a "lifetime record review" of anyone convicted of a "high-point driving violation," which is defined as any violation of five or more points, such as passing a stopped school bus, reckless driving, and speeding more than 20 mph over the limit. If the review shows enough relevant convictions or incidents in the driver's lifetime, or a different threshold in the past 25 years, then their license will be revoked. And they might never get it back.

Here's the extreme situation. Ralph had a bad run in his teens and 20s. He had a zero tolerance violation at 19. He had four more convictions or incidents in his 20s. He served his time, paid his debt to society, etc.

Fifty years later Ralph is driving south on the Northway and doesn't notice the speed limit dropped from 65 to 55 mph. He gets a ticket for 76 in a 55. Ralph mails in a plea of guilty and pays the fine. The lifetime record review ensues. Because of the five convictions/incidents from fifty years ago, Ralph's license is revoked.

But wait ... there's more. Ralph applies to have his license reinstated after the revocation period is up. New regulation 136.5(b)(1) requires states: "the Commissioner shall deny the application." Ralph just lost his license permanently because of a recent 76 in a 65 and his bad behavior that happened fifty years ago.

Really what's happening is Ralph is being punished again for what happened long ago. That's not what the Courts will say. They'll say this isn't punishment. It's not a penalty at all, just an administrative remedy.

If the individual doesn't have five incidents in his lifetime, he can still get hit if he has three convictions or incidents in the past 25 years, plus one or more serious driving offenses. The definition of "serious driving offense" is also troubling:

Serious driving offense means (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of two or more high-point driving violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part; or (iv) 20 or more points from any violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part.

The fatal accident one sounds serious, but it doesn't say it has to be the driver's fault. And one can have a fatal accident arising out of a minor driving offense.

A "driving related Penal Law conviction" is vague. Does that include a marijuana violation resulting from a traffic stop? Or a shoplifting arrest that occurs after you started driving away from the store? What if you drive away from the gas station without paying for the gas? This may not be a big concern because it's not clear if the DMV's system tracks such convictions.

Then we have "conviction of two more more high-point driving violations." So if you had two of the 76/55 speeds in the past 25 years, you're on the hook. Or with the last category, you could get one ticket every four years for 66 in a 55 (11 mph over). Each counts for four points. You'd have 20 points in 20 years.

So, like Ralph's situation, 22 years ago you had a bad run. You got a couple DWAIs and a DWI. As a part of that you also got a couple speeding tickets or other point-bearing violations. Then you had a couple of low speeds 15 years ago. Now you get your 76/55, the record review, and you're revoked. Under 136.5(b)(2), your application for reinstatement will be denied - permanently. Again, the individual is being punished not for the 76 in a 55, but for the long ago conduct.

There's more in these rules, including situations where an ignition interlock device would be required for someone who is getting their license back. That's complicated and we've covered quite a bit here already.

This is all very new, and I may have missed something. I certainly appreciate any comments, suggestions or corrections.

New DMV Rules for Repeat DWI: A Phony Emergency

The New York DMV has issued a new set of proposed rules affecting repeat DWI cases. This received a brief splash of coverage in the media, such as Casey Seiler's article in the Times Union. This has an impact on anyone convicted of a DWI offense who has a prior offense within the past 25 years.*

Update: A number of people have called me asking what they can do about their situation. A friend of mine, Eric Sills, is working on challenging the new regulations. His office phone is 518-456-6456.

So far we have yet to see a thorough analysis of the proposal, or discussion of the DMV's decision to impose the rules before public comment as an "emergency." In this post I discuss the phony emergency and abuse of the regulatory process. In the next I'll discuss the details of the rules. --Update - link is here: NY DWI Repeat Offender New DMV Rules --

DMV describes this as about "Dangerous Repeat Alcohol or Drug Offenders" on the DMV's Proposed Rules page, with the following note:

Emergency Rule
Effective September 25, 2012
Comments accepted until
November 26, 2012

DMV Commissioner Fiala

The emergency designation puts the rule into effect immediately, before public comment.  The idea is that something has happened (an emergency) that makes this urgent and something that must be done.

What's the emergency? New York State was one of the first to make drunk driving illegal, back in 1910 (per Wikipedia on history of drunk driving laws). The legislature has made changes to the law over the years, such as adding Aggravated DWI back in 2006, and the new ignition interlock law in 2010. The laws already address repeat offenders in a variety of ways.

Here's a common definition of emergency:

A serious, unexpected, and often dangerous situation requiring immediate action.

The repeat DWI problem may be serious and dangerous, but the "unexpected" is missing. There is no emergency. There is no need for immediate action either. Using the emergency approach is an end run around the normal regulatory process.

The regulatory approach is also an end run around the legislative process. DMV is making new and substantial rules affecting people accused of drunk driving offenses. This is really the legislature's job, and something they have not hesitated to do in the past.

For example, Vehicle and Traffic Law Section 1196 sets rules regarding the Drinking Driver Program (which includes eligibility for a conditional license) and subsection 4 bars repeat offenders if their prior offense was within five years. VTL 1193 makes an offense a felony if there is a prior offense within ten years.

If there is a need for further rules regarding repeat offenders, the legislature has demonstrated a willingness to do something about it. The proper path in a representative democracy is for our elected representatives to make such rules through the legislative process. Instead the DMV decided to skip that and create its own rules.

One real consequence of this is that it blindsides people dealing with DWI cases right now because it is retroactive. An attorney friend contacted me about a case where he already negotiated a plea agreement in early September. His client will now be affected by a rule that did not exist when he committed his offense. Thanks to the "emergency" trick, they did not have notice of the rule when he made his plea deal. If this were done through the legislative process or at least not used the phony emergency designation there would have been some public notice of what was going on.

In my next post I'll provide a detailed analysis of the changes in the new rules.


*One of the proposed rules amends Regulation 134.10(b) to prohibit those with 2 convictions within the past 25 years from early termination of suspension/revocation after completion of the Drinking Driver Program.

DirecTV Customer Service and NFL Sunday Ticket

I had an angry experience with DirecTV this morning. Before I get into the details I have to say in retrospect that by comparison to other experiences I've had (such as Time Warner Cable Phone Support), they did pretty good. But only by comparison.

How did this start? This summer after problems with Hotwire Communications TV service in Boca Raton, we decided to keep using DirecTV and reviewed our plan. We canceled most of the pay channels, except HBO, and decided we were not going to watch enough football to justify the cost of NFL Sunday Ticket, a package that allows you see just about every NFL game.

That summer phone call with DirecTV seemed to go well. Today I realized it hadn't gone as well as I'd thought. While we did receive a credit back for our first payment on the NFL Sunday Ticket package, they continued to bill us for it the next two months and that would have continued.

Our Discover Card was somehow compromised a few weeks ago. Thanks to Discover and/or Walmart, this was caught quickly and we got a new card. This prompted a payment problem with DirecTV, which we had been paying with that Discover Card. In the course of changing the payment I reviewed the bill online and noticed that we were still paying for Sunday Ticket.

The first problem with the experience today was that DirecTV would not allow me to review bills or statements online. In order to do that I had to sign up for paperless billing. There was no option to continue paper billing and still review bills and statements online. In other words, DirecTV is forcing customers into paperless billing. Personally, I don't mind this but it doesn't seem right.

Next, once I was in I wanted to cancel the NFL Sunday Ticket via the online interface. Nope.

Notice the little box that popped up in the bottom right. It did not allow me to remove NFL Sunday Ticket online. Why not? The obvious reason is that they want to make it harder to cancel services. I'm pretty sure they make it easy to sign up for a new service. It's only when you want to cut your bill that they make it hard.

The other problem with this moment is that it tells the users to "call customer service at 1-800-DirecTV." I did. First I got a computer with a fake human voice. Sorry, I hate that. I press Zero to get a real human. No dice. The computer/human voice tells me that in order to get me to the right person, to please say what this is about. So I say "Cancel Sunday Ticket". It/she says "I can help you with that." No, no you can't. And that shows a disregard for my desire to talk to a real human, which you just acknowledged.

I press Zero again. So now I get transferred to a real person. Of course, it's not the right person. She asks me how I'm doing. "Not happy." She asks me or my name and phone number for security. Fine.

Then, after a brief conversation, she says she's going to transfer me to NFL Sunday Ticket department. Really? Why did I go through all of this only to get to the wrong person?

Back up a few paragraphs and look at that picture again. Why did DirecTV give me the general customer service phone number? Why not give me the direct number to the NFL Sunday Ticket department?

The guy I spoke with last did get it taken care of, or at least he told me he did. I'd check right not to be sure but I'm unable to login to my account (might be due to the firewall where I am right now rather than DirecTV). Of course, the person I spoke with in the summer told me it was taken care of.

It turns out that there was a credit on our account for the first NFL Sunday Ticket payment back in July, but they continued to charge us in August and September. How many other people did this happen to? I suggested to the last guy that he forward this concern to his manager to see how many other people have the same problem. He left me with the strong impression he didn't care.

So why am I angry? Because if I hadn't noticed this would have cost me at least $200. This should have been taken care of back in the summer. DirecTV shouldn't engage in practices that make it hard for customers to check on things online, and should not force feed paperless billing on people. And if you're going to insist that I call to get something resolved, give me the direct phone number instead of making me talk to a computer.

As I mentioned, this was still much better than my Time Warner Cable experience or my previous fiasco with HP Customer Service. While it was frustrating to have to jump through all the hoops, once I called the number it took about 7 minutes to get to the right person. That's dramatically better than what I went through with the others. But it's still not good enough.

Time Warner Cable Phone Support: Prognosis Negative

In my previous post I described my initial problems and experience with Time Warner Cable Live Chat. That was only the beginning.

The chat session ended with "Ben" (not his real Indian name) referring me to my "local support" team. He did not provide me with a direct phone number, but rather a web address.

Here's the web link he gave me: Time Warner Cable Northeast Contact Page

He told me it would provide the phone number for the local support staff. Here's what the page looks like:

Now I know I'm no rocket scientist, but I still don't see a phone number on this page no matter how hard I look. Nor do I see any reference to a local support team.

Somehow I found the number 518-869-5500. I don't remember how I did, but that is a local number so I called it. The menu options did not include anything about a local support team but I found something that sounded like what I needed and I chose that option.
And after waiting a while I did get to a speak to a person.

Before that person picked up, I did hear some brief recorded statement that Time Warner was experiencing technical difficulties with e-mail and that they were working on it. I do not know if this had anything to do with our problem and no one I dealt with mentioned anything about it.

So unlike my live chat experience, I'm pretty sure the person I was speaking with was in America and he did not seem to have an accent. However, he didn't seem to know much about anything either, and he was not "local" as will become apparent later.

I experienced the same problem where even though I had entered my mother's information through the phone system, he did not have the account ready when the conversation started.

He never mentioned the spam issue raised by our friend in India. He did bring up the same thing about my mother's address changing, though he couldn't explain why an address change from several years ago would suddenly affect her e-mail now.

He did seem pretty sure that my mother's e-mail accounts would have to be deleted. After some conversation I think he started to figure out that this would not be a satisfying resolution of the situation for us. And there was that moment when he decided he needed to speak to a senior technician. That job title might mean someone who has been working there for more than two weeks.

After a lovely stint on hold he said he was going to connect me to someone in our local tech support who would be able to transfer the e-mail addresses to the "new" account. Maybe.

And then he put me on hold, and not your ordinary 3-5 minute hold. This one took over half an hour.

It's important to note at this point that I'm not your typical customer. Most people would get enraged and hang up at some point. My mother, sitting next to me and enraged, refused to go to bed (it was after 11 pm) and insisted that I hang up the phone. I probably should have been mad. But I use the experience as material for ... writing blog posts. I also use the time to research for related material (see the links in the Time Warner Live Chat post).

But wait ... there's more.

When the nice young lady in the Albany area finally picked up the phone, I let her know how long I'd been waiting, and how much time I'd spent with the national guy and our friend Ben/Sunil in India. Politely, but I made sure she knew I was not a happy camper.

Then we dug into the problem. Of course she did not have all our information ready, so I had to repeat my mother's account information and re-explain the situation for the third time. All of this to find out that she did not handle technical support - just billing issues.

She was going to get someone else on the line but I'd reached my limit. It was midnight. I was tired. And I had zero confidence that the next person was going to fix anything.

So I gave her our contact information and asked that she have someone let us know when the problem was fixed. We went to sleep. We did not receive any e-mails or calls today updating us on the situation. My mother's e-mail did mysteriously start working again. We have no idea why it stopped working, or why it started again.

Did the local support team switch the e-mail addresses over to the new physical address? Was the mysterious recorded statement relevant? Was it a temporary glitch that fixed itself? We just don't know.

To be fair to Sir Patrick Stewart, I have not lost the will to live. This was a minor annoyance which, at least for me, provided some amusement. I suspect his experience was far worse.

Customer service just stinks in much of the business world. Often this is the result of monopolistic environments where consumers just don't have better options.

In competitive environments, however, customer service is a big deal. There's a lot of talk this week about the iPhone 5 being unimpressive when compared to non-Apple smart phones - for example: 10 ways Android beats the iPhone 5. This analysis misses one of the biggest features going for the iPhone - the Genius Bar at the Apple Store.

When you have a problem with your Android phone, where do you go to get it fixed? For iPhone users there's an easy answer. You go to the nearest Apple Store, wait a reasonable time (despite the massive crowd) and then talk to a real person who actually knows what they're talking about and actually fixes your problem.

This not only leads to customer satisfaction, but it also exposes the customer to all the cool stuff in the store. We were there yesterday on an unrelated issue and I started thinking I need a new laptop.

Time Warner Cable Live Chat: Pathetic

My mother's Time Warner Cable (RoadRunner) e-mail stopped working today. Their website heavily promotes their Live Chat support option. It was terrible, and the subsequent phone adventure may actually be worse (it continues as I type).

Cable providers are, of course, notorious for poor customer service. Recently Time Warner sapped Patrick Stewart's will to live, something even the mighty Borg were unable to do.

The e-mail problem was totally out of the blue. It was working yesterday.

She is visiting me and was using her cell phone when she started having a problem. So I tried to access it via my laptop through their online interface.

First I kept getting "incorrect password" error messages. Then I tried to do a "password reset" and got an error message that said: "pending delete". That did not sound good.

So I went to some support link and the Live Chat was promoted so I tried it. I should have known better considering my past experience with HP Customer Service By Chat. But I tried.

Here's the language they use to promote it:

Chat Online

Chat is a great way to contact us with questions while you're online.

Live Chat is available 24 hours a day, 7 days a week.

Please note: You will not be able to downgrade or disconnect service via chat.

Please visit the Call Us section below to contact one of our customer service representatives.

The live chat is also promoted at the top of the login page:

So here's how it started:

User Rita has entered room

We are experiencing higher than usual service times. Please wait and an analyst will be with you shortly.

We are experiencing higher than usual service times. Please wait and an analyst will be with you shortly.

We are experiencing higher than usual service times. Please wait and an analyst will be with you shortly.

It also had a little counter telling me where I was in the queue - started around 49 and slowly dropped as the "higher than usual service times" message repeated. I'm playing the part of Rita (my mom) in this dialogue.

Finally I get something:

Ben Abraham

Hello! Thank you for choosing Road Runner Internet Technical Chat Support. My name is Ben Abraham.I will help you.

Rita

Hello?

Ben Abraham

How would you like me to assist you?

Rita

I can't log in to my account

Ben Abraham. Hmm ... already a little suspicious. Also, the "how can I assist you" thing shows that Ben did not read the form I filled out when I initiated the chat.

Ben Abraham

Provide me with the error message you get when you try to login to your Road Runner email account.

Rita

wrong password

Rita

Tried password reset and got something about "pending delete"

Rita

Would you please check my account and see if there's a problem?

Ben Abraham

Thank you for the information.

Ben Abraham

Give me a minute, while I pull up your account.

Of course all this is taking a lot longer than it looks. "Ben" responds only after long delays. I'm guessing the poor Indian bastards are handling three or four chats at once.

And - "while I pull up your account" ?? Why doesn't he start out with my account information already waiting for him? I gave my account information to initiate the chat.

This is where it starts to get good.

Ben Abraham

Is that you moved to a new address and shifted the internet service to the new address ?

Rita

I've lived at my address for quite a while. Over 3 years.

Ben Abraham

Thank you for the information.

Ben Abraham

The email address -----------@nycap.rr.com is associated with the former internet service.

Rita

I don't understand what you're talking about.

Ben Abraham

Recently all the email accounts accounts associated with the former internet service are disabled .

Rita

I also use xxxxxxxxx@nycap.rr.com

Rita>

Recently like today?

Rita

What do you mean by the phrase "former internet service"??

Ben Abraham

You can transfer this email address to your present address .

Rita

I don't know what you mean by "present address"

Rita

I've been using this e-mail address for several years, including over 3 years at my current street address.

Ben Abraham

For security reasons the former email accounts have been disbaled .

Ben Abraham

Don't worry .

DON'T WORRY????? Are you kidding me?

A little background is appropriate here. As best I recall my family started with Time Warner when I was in high school, which would be the early 1980s, or about 30 years ago. My mom has had their internet service, Road Runner, for well over a decade. And she's been at her current address for over three years. So this address thing is coming up at an odd time.

Also, Ben's use of language - "former internet service" and "present address" are not terribly helpful.

Rita

Do you see why that would be something I would worry about?

Rita

Are you human?

Ben Abraham

This is a live chat support.

Rita
Is it live chat support with a live person? Or with a computer?

Ben Abraham

Rita, please contact our local office.

When customer service acts in an inhuman manner, I like to ask the "are you human" question. Ben's response is quite amusing - he never says whether he's human or not. And I'm not kidding. Companies are working on software with robot agents for chat.

Ben Abraham

They will help you in transferring your email account to your present internet service .

Rita

I don't know what you mean by "present internet service." Don't I have the same internet service today that I had yesterday?

Ben Abraham

We apologize for the inconvenience .

Rita

Hello?

Ben Abraham

Your present internet service is with name RITA REDLICH at [Address Omitted], ALBANY, NY , right ?

Rita

Yes.

Rita

And it has been for over three years.

Ben Abraham

Before 3 years you lived at a different address , right ?

Rita

Yes.

Ben Abraham

Your previous address was --------------, SCHENECTADY NY, right ?

Rita

That is one of my previous addresses, but that was long before. In between I lived at two other addresses.

Ben Abraham

The email account -----------@nycap.rr.com was associated with internet at -------------, SCHENECTADY NY 12303.

Rita

But I have been using these e-mails during the 3+ years I've lived at [present address].

Rita

I used the e-mail addresses yesterday. What changed?

Ben Abraham

All the email account associated with the previous services have been disabled as they were being used by unauthorized person for sending spam .

Ben Abraham

In order to stop this all the former email accounts have been disabled .

Rita

When did this spam problem start? Can't you just reset the password?

Now all of a sudden there's a spam issue? Where did this come from? And why didn't he say that at the beginning?

He mentioned this spam thing once and it never came up again in the entire 90 minutes or so this drama will take.

Ben Abraham

You can enable them by transferring them to the current service.

Rita

I don't know what that means: "current service"

Rita

Whatever. How do we make this happen?

Ben Abraham

By current service I mean your internet at your present address .

Ben Abraham

Please contact our local support team, they will help you in getting back the email address..

Rita

How do I contact "our local support team"?

Ben Abraham

Give me a minute, while I provide you with the contact number.

Rita

And their hours please

Ben Abraham

Please visit https://www.timewarnercable.com/northeast/about/contactus.ashx

Ben Abraham

You will get all the information on working our hour and contact numbers as well.

In case it's not clear, what didn't (and doesn't) make sense to me is that my mom has been using her e-mail address with her "current service" - the internet at her "present address" - for over three years. 

Ben told me the "local support team" would be able to solve the problem. That's not what happened. To be continued ...

But first, the rest of my conversation with Ben.

Rita

Is your name really Ben?

Ben Abraham

Ben, is my official name .

Ben Abraham - right. It seemed like an odd name. Asked if it's really his name, he replies that it's his "official" name. What does that mean? For more on the use of Americanized names, see: Guardian.

Rita

What time of day is it where you are right now?

Ben Abraham

We are located in India .

That was a shocker.

Rita

Okay. Thanks for your help ... sort of. This hasn't been all that helpful, but I'm guessing that's not your fault. I'm sure you're doing whatever you can within whatever Time Warner has allowed you to do.

Ben Abraham

I appreciate you understanding .

Ben Abraham

I hope your issue gets resolved as soon as possible .

Rita

I spent maybe 30 minutes waiting for this live chat support. But I didn't get support at all. I spent 30 minutes to be told to contact somewhere else for support. Please relay to your manager that this is not what I expect from the word "support". Basically this was a waste of my time.

Rita

I mean really, what did I get out of this? What was the useful information? How did this help me?

Ben Abraham

Rita, I could have helped you if it is some thing which is in my control.

Rita

I'm not saying "you". I'm saying Time Warner.

Rita

Why does Time Warner direct me to live chat, only to waste 30 minutes of my time getting no help?

Ben Abraham

I do understand that this has caused lot of inconvenience and we apologize for the inconvenience caused.

The fake apology. This is a common problem with "customer service" these days, and not just in India. You see, if Time Warner (and all the other crappy companies) really cared about the inconvenience it was causing with its poor customer service, it would make its customer service better. But they don't care. And thus, their apology is fake.

Rita

This is what I want you to relay to your manager.

Rita

I know you can't do anything about it yourself. You're half a world away working within rules that were set for you by someone else.

Ben Abraham

Sure, I will definitely pass the message.

I make it a point when I am in this situation not to blame the individual. Ben, or Akhil or whatever his real name is, is some poor chap in India just trying to get by in life and maybe move up to something approaching middle class in India, which is still a crappy lifestyle by our standards. For more on their lives read My Summer at an Indian Call Center, and keep in mind that this is a text chat so Ben probably doesn't speak well enough to make it at a call center. He is probably living below the level that article describes. 

Ben is not the problem here. The blame falls on Time Warner Cable management. CEO Glenn Britt has focused on creating a customer service-oriented organization.

Ben Abraham

Would you like me to provide you with any other information?

Rita

Not that it will change anything.

Rita

I hope your day gets better.

Rita

Is there any other information you can provide that would be helpful to my problem?

Ben Abraham

The local support team only can help you with this, please contact them .

Ben's question is obviously part of the script he's been given by his managers. He probably gets fined twenty rupees if he doesn't include it at the end of the chat, even if it's completely inappropriate.

Rita>

Goodbye.

Ben Abraham

For more information about Road Runner products and services, please visit our website http://help.rr.com and check for online FAQs.

Ben Abraham

Thank you for contacting Road Runner Technical Chat Support, we value you as a customer.Have a nice day!

Ben closes the conversation with more fake nonsense. "We value you as a customer." I understand that you value the money my mother sends you every month. But you don't value her enough to treat her with respect.

And this whole live chat thing is even more of a scam. Why do the conversations take so long? Because the agents engage in more than one conversation at the same time. Here's a company bragging about how their Call Center Live Chat Software enables this - with experienced agents handling up to six at one time.

So let me get this straight. Time Warner is paying Ben less than $2/hour, and he manages up to six customers at a time. The typical customer is paying $1000/year and Time Warner Cable makes something like $2 Billion in profit. CEO Britt pay dropped to $16 million a year. That poor bastard. How does he get by on that?

Time Warner Cable uses Live Chat to keep costs down. I get that. But in doing so it does not value us as customers. It devalues us. On the bright side the world is changing. They are facing more competition and eventually it will force better service. But not soon enough.

As mentioned earlier, the adventure continued by phone. That will be my next blog post.