For a new kick, I'm starting a series of stories about past cases I've handled. This one's a DWI story, from a few years ago. As part of my pattern for stories about cases, some elements will be fictionalized mainly to protect the client. In this case there was a trial, so the truth is really a matter of public record, though practically it would be difficult to find the record if you don't know where to look.
Client was accused of DWI. His BAC (blood-alcohol content) was reported to be 0.32, four times the legal limit. This occurred before the Aggravated DWI law, so it was only the regular DWI charges under 1192(2) and 1192(3). Due to the high BAC, the prosecutor would not agree to a reduction to DWAI. I would not have recommended my client take that deal, but he would have if it had been offered because he did not want the fight.
I would not have recommended it because he was not guilty. The client had an argument with his teen daughter. She wanted him to drive him somewhere. He refused because he was too drunk. To get away from the argument, he went out to the parking lot, got in his car, started it, and turned on the radio. He did not move the car. He was not going anywhere in the car and hadn't driven it in hours. At the time the police arrived, his wife was sitting in the back seat with the door open.
A neighbor heard the argument and called the police. An officer arrived at the scene, and went to the apartment. The daughter answered the door and said there was no problem. Asked where her parents were, she said they were outside.
The officer then went outside, met up with another officer arriving at the scene, and they went over to the client's car. Seeing that the car was running and that he was intoxicated (we did not dispute that), they arrested him for DWI. Yes, my client was arrested for listening to the radio while intoxicated.
So we fought the case. The first major step was the suppression hearing. This is where the prosecution has to show that the stop and arrest were proper. If not, the evidence is suppressed, and that makes it hard to prove anything.
The big issue is whether the police had "reasonable suspicion" for the stop. Well, actually, there's even the question of whether this was a stop. The car wasn't moving.
The police clearly had a reason to come to the door of the apartment - a civilian complaint. But once they talked to the daughter, who said everything was fine, what was the reason for approaching a car sitting in a parking lot? Now I guess if it wasn't a traffic stop, then maybe you don't need reasonable suspicion for a stop. But if it's not a stop, then how can you say the defendant was driving?
But before we get to that, there was another problem. The time for the hearing arrived and there was no police officer. After about 15 minutes the prosecutor said he was on his way. He showed up a half-hour later in an undershirt and gym shorts, looking like he'd just woken up. The hearing went ahead. The officer - I'll call him Officer A - testified that he arrived, went to the apartment, talked to the girl, and Officer B arrived as A was walking out to the parking lot.
After the hearing I argued that it was either a traffic stop without reasonable suspicion, or if it wasn't a stop that he wasn't driving and then the arrest was without probable cause. Some judges find such logic irrelevant to their main job of doing whatever the prosecutor and police want, so suppression was denied. I'm being a little cynical on that. I like this judge very much for a variety of reasons, but I did not agree with the decision.
So we went to trial. It'd take too long to tell the whole trial story, so I'll just hit some highlights. First, my associate knew one of the jurors - said that the juror got hammered at a wedding and then drove home. That's the kind of juror the defense wants. The juror did disclose that he knew my associate.
Second, Officer B testified that he went to the apartment, talked to the girl, and Officer A arrived as B was walking out to the parking lot. They did not get their stories straight. Also, B testified that my client was walking out as he was walking to the apartment. One juror later told me that he thought it was significant B did not notice the client was intoxicated while passing him in the hallway. I didn't see that as important, but that's one of the things about juries - you never know what will grab their attention.
Third, my client and his wife testified well. The prosecutor's cross-examination did not go well. This is a very difficult thing for a prosecutor in a criminal case. They have no idea what the defendant will say and have difficulty preparing.
In a civil case, like our personal injury cases, both sides testify at a deposition well before trial. So the lawyers all know what everyone's story is. When you cross-examine someone, you know the answers to your questions before you ask them. There's a "rule" about cross - never ask a question if you don't know the answer. Much tougher for a prosecutor who doesn't know the defendant's story.
Two or three times during cross, the prosecutor asked what he thought was a winning question and each time the client nailed the answer. He'd explain what happened and the jurors nodded their heads like what he'd said made perfect sense (because he did make perfect sense - helps to have a good client).
Throughout the trial I focused on one thing with the jury - my client was accused of DRIVING while intoxicated. He wasn't driving. It is true that under NY law judges say you can technically be guilty. Judges are one thing, but it's pretty heavy lifting for a prosecutor to sell that one to a jury.
The jury came back with "not guilty" pretty quickly.
I just remembered one of the funnier moments in the trial. During jury selection there was an older man with a strong European accent. The prosecutor started asking him questions and the man said: "You're not going to like me. He (pointing at me) gonna like me." He went on to explain that he did not like the DWI laws. The prosecutor asked if he drinks and drives. "Of course." He provided details too. Asked about the holidays, he said: "I go to family. I have 5 or 6 drinks, put the kids in the car, and drive home. No problem." I wish I could remember that better because there was more and it was hilarious. The whole courtroom was laughing. The prosecutor decided to exclude him from the jury. I consented.
Oh, and one more detail. I was a little worried about one thing. I like trials where the jury is likely to identify with my client. Here it was an all-white and mostly blue-collar jury. My client was foreign, from a continent that is often accused of stealing blue-collar jobs, and he had a strong accent. I'm pleased to report the jury seemed to have no problem identifying with him.
Showing posts with label driving. Show all posts
Showing posts with label driving. Show all posts
Friday, October 09, 2009
Saturday, November 08, 2008
Costa Rica Day 1: Poas Volcano, Uglier Driving and Gorgeous Gaia
On our first full day in Costa Rica (for Day Zero, see Costa Rica: Ugly Driving) we woke up a little late. The previous day was a long one, and we both had trouble sleeping.
When we did get up, we had a pleasant breakfast at our resort, Xandari Alajuela. There is a complimentary breakfast. It's like a Continental breakfast, but with a few more items than you get at most places, and it was all delicious. There was some kind of Costa Rican muffin/quiche thing that was extra good. We also got fried bananas (or was it plantains?) and they were excellent. One of the nice things about Xandari, by the way. Menu prices were very reasonable. The plantains were $2. One small-world moment. Started chatting with a woman at breakfast. She grew up in Glens Falls, and her husband in Corinth.
After breakfast we drove up to the Poas Volcano National Park. It was a reasonably short drive from Xandari, but driving in Costa Rica seems to take longer than it should. This opened up a new problem. You're going along and there's a sign: "Parque Nacional Volcan Poas - 27 km". For the non-metric inclined, 1 mile is 1.6 km, so 30 km is a bit less than 20 miles. Okay, so we're doing pretty good. Next sign says 25 km. Then the next sign says 30 km. Um ... shouldn't we be getting closer? I'll mention a couple more like this later, but in short, no one in Costa Rica seems to know how far away anything is. If you ask them, they'll guess, but they'll almost surely be wrong. If the guys putting the signs up on the highways can't get it right, why should anyone else?
So, driving up and down and all around, narrow roads, people walking extremely close to the roadway, odd traffic behavior, etc. We did eventually get to the park. It was quite nice. Here's where I should start to mention how beautiful Costa Rica is. If you read about Costa Rica, it's one of the first things you'll see. And it's pretty much true. Populated areas are generally less attractive as there are many unsightly structures and objects, but outside those areas there is an awful lot of green.
Driving and walking up to the volcano, we saw lush vegetation all over. The country is really just one big garden. What little we've seen so far anyway. After parking, we walked up a paved (and wheelchair accessible) path to see the crater. Very interesting. The bottom of the crater is filled with water. Apparently the water is hot, highly acidic, and you can see a plume of steam coming off of it. See the following picture:
We were lucky that we had good views while there. Not the best though. On a really good day you can see the Caribbean from there, which is a rather long distance. We could only see the crater and not much beyond it. We also walked up to the Laguna, which is another crater also filled with water.
The Laguna hike is tougher, with steeper hills and steps in a number of places. We walked about 2 miles in total, a workout. We appreciated the downhill return.
We drove back down to Xandari for lunch. I got us mostly lost on the way down, but fortunately found our way back. Xandari has done a good job of posting signs for itself in a number of places. And their distance markings are the most accurate we've seen here.
After lunch we headed out on the most adventurous part of the trip so far. We drove to Quepos on the Pacific coast. I got lost again trying to get us on our way to Quepos, but we eventually got on the right track. I kept stopping and asking people for directions. This is a key point. I speak Spanish fairly well. If you don't speak Spanish, getting directions will be a lot more difficult. Many Ticos (Costa Ricans) speak English, but they're better at Spanish and some struggle with English. Anyway, the best directions came from a gas station attendant. Then I had a sense that I was about at the turn and ran into a restaurant to ask a waiter. He gave me the clearest directions - he pointed to the road I thought we were supposed to turn onto and said to follow it all the way. I had guessed correctly, but you'd think they'd put a sign??
A little ways further we saw a sign saying that we had 155 km to go to Quepos. The longest 155 km I've ever driven, and not just because I've never thought about a trip in km before. Just now I checked a Costa Rica driving distance calculator and it says 175 km, so that explains a little of it (assuming the calculator is right).
The first part of the drive from Alajuela was unpleasant. The roads were narrow, winding, and crowded. We kept seeing signs to Jaco (on the way to Quepos) and to Quepos as well. The distances continued to vary. We also saw plenty of billboards in English about buying condos or other property. I suspect that business is slow these days. At a certain point as we were getting closer to Jaco, we took a ramp around onto a new road, and all of a sudden it was fairly straight and flat and empty. We were able to go 80 km/hr (50 mph) for some consistent stretches.
We had been driving for a while and passed through Jaco. We were looking for a couple of places to stop and take a break. We were cruising along and then traffic stopped ahead. There was a minor landslide and we could see some boulders in the road. A guy in uniform (probably a police officer) and some young men cleared things up, all while keeping watch to make sure nothing fell on them.
We drove on. Finally we saw Xandari Pacific. This is by the same people who run our first hotel. It was very beautiful, and the beach is right there. It seemed like there was no one staying there. They probably do better in high season. We had a drink and enjoyed the view, and then headed back out on the road. I asked the waiter how far to Quepos, and he said 30 km. As we were driving out to turn back onto the main road, a sign said 45 km. They're consistent though.
Traffic came to a stop at Parrita (very close to Quepos). They are apparently building a new bridge, and traffic was routed over a narrow one-lane bridge in place of whatever the old one was. Once we got past that it was smooth driving again. Then it got dark and started to rain. And rain. And then it started to pour. Finally, after what seemed like many hours (but was really less than four hours including our stop at Xandari Pacific), we arrived in Quepos and found our hotel, Gaia Hotel and Reserve.
Gaia seems to be built on a hill. The main facility and the rooms are on top. You park and they drive you up in the hill in golf carts. We got a quick tour, took a short break in our room, and then had a very nice dinner from the hotel's restaurant, but we got room service because of the downpour. The food was excellent. We also had our first good night of sleep.
More about Gaia in the next post, about Day 2.
When we did get up, we had a pleasant breakfast at our resort, Xandari Alajuela. There is a complimentary breakfast. It's like a Continental breakfast, but with a few more items than you get at most places, and it was all delicious. There was some kind of Costa Rican muffin/quiche thing that was extra good. We also got fried bananas (or was it plantains?) and they were excellent. One of the nice things about Xandari, by the way. Menu prices were very reasonable. The plantains were $2. One small-world moment. Started chatting with a woman at breakfast. She grew up in Glens Falls, and her husband in Corinth.
After breakfast we drove up to the Poas Volcano National Park. It was a reasonably short drive from Xandari, but driving in Costa Rica seems to take longer than it should. This opened up a new problem. You're going along and there's a sign: "Parque Nacional Volcan Poas - 27 km". For the non-metric inclined, 1 mile is 1.6 km, so 30 km is a bit less than 20 miles. Okay, so we're doing pretty good. Next sign says 25 km. Then the next sign says 30 km. Um ... shouldn't we be getting closer? I'll mention a couple more like this later, but in short, no one in Costa Rica seems to know how far away anything is. If you ask them, they'll guess, but they'll almost surely be wrong. If the guys putting the signs up on the highways can't get it right, why should anyone else?
So, driving up and down and all around, narrow roads, people walking extremely close to the roadway, odd traffic behavior, etc. We did eventually get to the park. It was quite nice. Here's where I should start to mention how beautiful Costa Rica is. If you read about Costa Rica, it's one of the first things you'll see. And it's pretty much true. Populated areas are generally less attractive as there are many unsightly structures and objects, but outside those areas there is an awful lot of green.
Driving and walking up to the volcano, we saw lush vegetation all over. The country is really just one big garden. What little we've seen so far anyway. After parking, we walked up a paved (and wheelchair accessible) path to see the crater. Very interesting. The bottom of the crater is filled with water. Apparently the water is hot, highly acidic, and you can see a plume of steam coming off of it. See the following picture:
We were lucky that we had good views while there. Not the best though. On a really good day you can see the Caribbean from there, which is a rather long distance. We could only see the crater and not much beyond it. We also walked up to the Laguna, which is another crater also filled with water.
The Laguna hike is tougher, with steeper hills and steps in a number of places. We walked about 2 miles in total, a workout. We appreciated the downhill return.
We drove back down to Xandari for lunch. I got us mostly lost on the way down, but fortunately found our way back. Xandari has done a good job of posting signs for itself in a number of places. And their distance markings are the most accurate we've seen here.
After lunch we headed out on the most adventurous part of the trip so far. We drove to Quepos on the Pacific coast. I got lost again trying to get us on our way to Quepos, but we eventually got on the right track. I kept stopping and asking people for directions. This is a key point. I speak Spanish fairly well. If you don't speak Spanish, getting directions will be a lot more difficult. Many Ticos (Costa Ricans) speak English, but they're better at Spanish and some struggle with English. Anyway, the best directions came from a gas station attendant. Then I had a sense that I was about at the turn and ran into a restaurant to ask a waiter. He gave me the clearest directions - he pointed to the road I thought we were supposed to turn onto and said to follow it all the way. I had guessed correctly, but you'd think they'd put a sign??
A little ways further we saw a sign saying that we had 155 km to go to Quepos. The longest 155 km I've ever driven, and not just because I've never thought about a trip in km before. Just now I checked a Costa Rica driving distance calculator and it says 175 km, so that explains a little of it (assuming the calculator is right).
The first part of the drive from Alajuela was unpleasant. The roads were narrow, winding, and crowded. We kept seeing signs to Jaco (on the way to Quepos) and to Quepos as well. The distances continued to vary. We also saw plenty of billboards in English about buying condos or other property. I suspect that business is slow these days. At a certain point as we were getting closer to Jaco, we took a ramp around onto a new road, and all of a sudden it was fairly straight and flat and empty. We were able to go 80 km/hr (50 mph) for some consistent stretches.
We had been driving for a while and passed through Jaco. We were looking for a couple of places to stop and take a break. We were cruising along and then traffic stopped ahead. There was a minor landslide and we could see some boulders in the road. A guy in uniform (probably a police officer) and some young men cleared things up, all while keeping watch to make sure nothing fell on them.
We drove on. Finally we saw Xandari Pacific. This is by the same people who run our first hotel. It was very beautiful, and the beach is right there. It seemed like there was no one staying there. They probably do better in high season. We had a drink and enjoyed the view, and then headed back out on the road. I asked the waiter how far to Quepos, and he said 30 km. As we were driving out to turn back onto the main road, a sign said 45 km. They're consistent though.
Traffic came to a stop at Parrita (very close to Quepos). They are apparently building a new bridge, and traffic was routed over a narrow one-lane bridge in place of whatever the old one was. Once we got past that it was smooth driving again. Then it got dark and started to rain. And rain. And then it started to pour. Finally, after what seemed like many hours (but was really less than four hours including our stop at Xandari Pacific), we arrived in Quepos and found our hotel, Gaia Hotel and Reserve.
Gaia seems to be built on a hill. The main facility and the rooms are on top. You park and they drive you up in the hill in golf carts. We got a quick tour, took a short break in our room, and then had a very nice dinner from the hotel's restaurant, but we got room service because of the downpour. The food was excellent. We also had our first good night of sleep.
More about Gaia in the next post, about Day 2.
Costa Rica: Ugly Driving and Beautiful Xandari
I've been thinking about Costa Rica for years. Driving my wife crazy. Well, I was goofing around with my Northwest Airlines frequent flyer miles on their website and (with spousal approval) booked a short trip to Costa Rica. And now we're here.
We arrived after a fairly long flight - a bit longer because the plane had to fly around Hurricane Paloma. Then we had a minor adventure getting our rental SUV (4wd suggested due to rough roads). On that point, I have to say that Dollar Rent-A-Car's idea of a luxury SUV is not the same as mine. We got a large Mitsubishi that is competent on the road, but it's not luxurious by any stretch of the imagination. But what should I expect for $40/day?
Going to our hotel at night, we got our first experience driving in Costa Rica. It ain't easy. The directions were reasonably clear, but the streets do not appear to have names. For that matter, one-way streets are not clearly marked. As we discovered when a motorcycle cop advised me that I was going "contravia" (wrong way). Fortunately he was a nice guy or had more important things to do, so he gave me directions and went on his way.
After that slight detour we found our resort. We spent the first night at Xandari in Alajuela. The resort is gorgeous and so was our room. Very spacious with a large terrace and expansive views of the Central Valley.
Customer service at Xandari was outstanding. Our plans had us arriving fairly late. So they e-mailed me a few days to let me know their kitchen would be closed and asking if we'd like anything in our room waiting for us. We ordered a few dishes and they were all very good. We stopped back for lunch the next day after a morning trip and that was great too. We'll be back there in a couple nights so maybe I'll post something more about that in my restaurant review blog later on. Below is a photo of the view from our terrace the next morning:
For the digerati, Xandari has wifi in the lobby area. I used it to check e-mails and then used TruPhone on my iPhone to make a few calls. TruPhone costs 3 cents a minute. My cell phone roaming in CR is $2.29 a minute, so that was a nice trick, though TruPhone was a bit erratic on one of the calls.
That was the beginning. More to come.
We arrived after a fairly long flight - a bit longer because the plane had to fly around Hurricane Paloma. Then we had a minor adventure getting our rental SUV (4wd suggested due to rough roads). On that point, I have to say that Dollar Rent-A-Car's idea of a luxury SUV is not the same as mine. We got a large Mitsubishi that is competent on the road, but it's not luxurious by any stretch of the imagination. But what should I expect for $40/day?
Going to our hotel at night, we got our first experience driving in Costa Rica. It ain't easy. The directions were reasonably clear, but the streets do not appear to have names. For that matter, one-way streets are not clearly marked. As we discovered when a motorcycle cop advised me that I was going "contravia" (wrong way). Fortunately he was a nice guy or had more important things to do, so he gave me directions and went on his way.
After that slight detour we found our resort. We spent the first night at Xandari in Alajuela. The resort is gorgeous and so was our room. Very spacious with a large terrace and expansive views of the Central Valley.
Customer service at Xandari was outstanding. Our plans had us arriving fairly late. So they e-mailed me a few days to let me know their kitchen would be closed and asking if we'd like anything in our room waiting for us. We ordered a few dishes and they were all very good. We stopped back for lunch the next day after a morning trip and that was great too. We'll be back there in a couple nights so maybe I'll post something more about that in my restaurant review blog later on. Below is a photo of the view from our terrace the next morning:
For the digerati, Xandari has wifi in the lobby area. I used it to check e-mails and then used TruPhone on my iPhone to make a few calls. TruPhone costs 3 cents a minute. My cell phone roaming in CR is $2.29 a minute, so that was a nice trick, though TruPhone was a bit erratic on one of the calls.
That was the beginning. More to come.
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