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 It quickly came out that Drue's license had been revoked in February 2009 (over 3 years ago) for having 3 speeding convictions.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.

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.

Misinformation about DWI: Posters and BAC Calculators

I was in a local court last night and saw this poster, which is misleading about NY's DWI laws.

The poster is also available online as a pdf: Leandra's Law Poster

Here's the relevant quote:

... anyone in New York State convicted of drunken driving (even first-time offenders) will be required to install at their own expense an ignition interlock device on any vehicle they operate.

First, the use of "drunken driving" is imprecise, and is not the one used in the law. The main offense, DWI, means "driving while intoxicated." It is true that convictions for DWI (or the higher BAC offense of Aggravated DWI) now require the ignition interlock device.

But there is also a lesser offense called DWAI, for "driving while ability impaired by alcohol". Many people think of this offense as also being a form of "drunken driving." The device is not required by law for DWAI (though judges may require it). Notice that at the bottom of the poster, it uses the web address: www.safeny.com/IMPAIRED.

There is also a DWAI Drugs offense where the driver is accused of being impaired by drugs, rather than alcohol. Since it is part of the same statute as regular DWI (VTL 1192) some people think of this offense as a form of drunken driving. The ignition interlock device is not required for DWAI Drugs either.

Another problem is the "on any vehicle they operate" language. In at least some early versions of how this law was supposed to be applied, it covered any vehicle the offender has access to, such as a spouse's car, or perhaps a car owned by a child who lives in the home. From what I'm hearing, this is still unsettled and could be very problematic.

My biggest beef with DWI misinformation is the BAC calculators promoted by the government. Here's the Erie County Stop DWI calculator. I put in 3 beers for a male weight 200 pounds over 3 hours, and it shows a BAC of 0.02.


With 6 drinks over 5 hours, it shows 0.05 - legal in NY.

Then it says In New York State you would be arrested for 'Driving While Ability Impaired (DWAI)'. That's a bit inaccurate. First, they don't do the supposedly reliable test of your BAC until after you've been arrested. Second, while you might well be charged with DWAI for a BAC of 0.05, most defense lawyers would get that dismissed pretty quickly. A BAC of 0.05 is legal in New York State - see my 2009 blog post on DWI, DWAI, Aggravated DWI and Plea Bargaining.

Here's what a smart calculator would say:
If you've had one drink in the past 8 hours, and you get pulled over, you are at high risk for being arrested for DWI. You are also at high risk of an erroneous breath test showing you to have a high BAC, and then being charged with a DWI offense.

It is misleading to tell someone they can have 5 drinks over 5 hours and they're okay to drive. The calculators also fail to deal with physiological reasons why alcohol might not hit your system for a period of time, throwing off the calculation.

The poster is also a great example of how ineffective government is at communicating with people. I work in this field and this is the first time I've seen the poster. I was unaware of the website. The vast majority of NY residents (not to mention drivers from other states) are far less likely than me to have seen this. Makes you wonder how much money they wasted on the poster and website.

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.

Don't Drink and Drive!

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

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.

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.

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.

The Supreme Court on the DWI Exception to the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DWI Story: Listening to the Radio While Intoxicated

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NY DWI, Crawford and Melendez-Diaz

It looks like NY DWI cases will become more interesting in light of Melendez-Diaz (129 S.Ct. 2527), which just came down from the Supreme Court in late June. That case follows on the 2004 Crawford (541 US 36, 124 S.Ct. 1354) decision on the Confrontation Clause in the Sixth Amendment.

The defendant in a criminal case has the right to confront his accusers. Melendez-Diaz holds that lab technicians who certify things like the nature and quantity of a substance (cocaine in the case) are subject to Crawford. The prosecution merely offered a certificate from the lab without bringing the actual technician. Since the defense did not have the opportunity to confront and cross-examine these witnesses, the evidence should not have been allowed and the conviction was reversed.

This matters for DWI cases in New York. It is routine for the prosecution to rely on certificates to prove that the breath test device (commonly called a breathalyzer but in NY most police use a "Datamaster") is reliable. This includes not only calibration of the device, but also of the "reference solution." Per Melendez-Diaz, the prosecution will now have to bring in the individual who did these calibrations, so the defendant can cross-examine that person.

For those who might argue that this doesn't apply to this kind of DWI evidence, Justice Scalia's opinion squarely addresses this (129 S.Ct. at 2533):
As the dissent notes, three state supreme court decisions from the early 20th century denied confrontation with respect to certificates of analysis regarding a substance's alcohol content. ... But other state courts in the same era reached the opposite conclusion.

Thus, in rejecting the dissent's arguments, Scalia specifically noted the situation with certificates regarding alcohol tests -- this is exactly what the reference sample is, and is also analogous to the calibration of the device. DWI defense lawyers should be ready to argue Melendez-Diaz in suppression hearings and at trial. This should really come up in a pre-trial Ayala hearing.

Garage Party - A Fun Way to Reduce DWI

We had a garage party last night. With all the DWI cases I handle where people had a few drinks and then drove home, this idea came to me. Wouldn't it be nice if you could go somewhere, have a few drinks, and not worry about driving home?

There's more to this. First, one of the motivators was that we now have a refrigerator in our garage. We bought new appliances. While we got rid of the others, we kept the fridge. Inspired by that Heineken commercial (see below - might be the Dutch or German version), I bought a lot of beer to fill the fridge.

Well, it turns out I don't drink that much beer. So what do you do when you have a fridge in your garage full of beer? Aha! You have a garage party. Now this is not the same as a Harley Davidson garage party.

Basically, we invited the neighbors over (so no one will be driving home). And we had a lot of beer, along with some other drinks.

It really went well. People brought their kids and the kids played together. The new neighbors got to meet the old neighbors. In today's world where we're all chasing our kids from soccer games to Tae Kwon Do, we don't get to talk to our neighbors much. This gave us all a chance to catch up.

Having the party in the garage means your house doesn't get messed up. Since the weather was pretty nice, the party expanded onto the driveway and the kids played there and in the yard. And if it had rained, the garage would have provided shelter. We parked our cars in the street before the party started.

Our neighbors brought over some desserts and a couple other goodies too.

My ulterior motive to reduce the amount of alcohol in the house had mixed results. A lot of my beer was consumed, but a couple people brought more over. I put out two bottles of wine, but neighbors brought three more. And we never opened any of the wine.

Most important, everyone seemed to have a good time.

So do your part to reduce DWI in your neighborhood. Invite the neighbors over for a garage party.

NY, DWI, Ignition Interlock, and MADD

Great story on Capital News 9 last night. The NY State Assembly has a bill (A-7196) that would require ignition interlock devices for everyone convicted of DWI. Specifics from the bill are below.

In the News 9 story, Laura Dean-Mooney of MADD said: "If there are detectable levels of alcohol, their car simply will not start." So in other words, if you have any alcohol on your breath whatsoever, even if you're not impaired, your car will not start. Now some of you are thinking that this is only for people who have been convicted of DWI. Rest assured that MADD will not stop there. As Dean-Mooney put it:

This ... is a good start, but she hopes technology similar to the device could come to be ... in all cars ... that will ultimately eliminate drunk driving.

Let's be clear folks - MADD wants to put devices in your cars that will require you to blow into a device, and if it shows detectable levels of alcohol, your car won't start. Their goal is to do this for everyone.

Keep in mind that breath tests are unreliable. See my recent post on breath test videos. You won't be able to drive if you had a glass of wine with dinner. Cough syrup could be a problem. And if you had some bread, well your car still might not start.

But let's get to the substance of the bill. It would create a new Section 1198 of the Vehicle and Traffic Law (repealing the current version). First, it expands the ignition interlock program to DWAI. The current 1198 does not permit courts to impose the device on a DWAI offender. The new bill doesn't mandate ignition interlock for a DWAI offender, but it does make it an option for the judge (1198(2)(B)). It's not hard to imagine some prosecutors (cough ... Soares ... cough cough) requiring the device for any DWAI plea bargains.

For DWI, there is an interesting trade-off. 1198(2)(E) mandates a sentence of "conditional discharge" and probation for a first DWI offense, with the ignition interlock device a condition. Apparently this means you can't get jail time for a first DWI offense (currently up to a year under 1193), as a conditional discharge usually means no imprisonment. But you can still get 15 days on a DWAI.

The BAC involved determines how long you have to use the device per (E)(1). For BACs from 0.08 to 0.11, it would be three months; from .12 to .17 it's six months; and for .18 and up it's a year. The period starts when you first get a conditional or restored license to drive. It's not clear how this would apply to a "common law DWI" conviction under 1192(3) where there is no BAC.

For a second offense, under (E)(2), you don't get the discharge, and probation is mandatory with three years of the device, though here the three years seems to start at sentencing. For a third offense it's 5 years. For the 4th offense it's required for 10 years to life.

One interesting detail: With DWI it usually matters how long ago your previous conviction was, but not with this bill. If you had a DWI more than 10 years ago, a new offense is not treated as a second offense. But for purposes of the ignition interlock device it now will be.

The bill also adds a $50 surcharge to which will fund the ignition interlock program. I knew they'd find another way to raise taxes.

Oh, by the way, I've seen estimates that renting an ignition interlock device costs up to $100/month. The Sens-O-Lock is $95/month plus taxes and other costs if it's for less than a year. So add another $1200 to the cost of a DWI conviction.

DWI Consequences: Travel to Canada

DWI lawyers frequently get clients who just want the case over with. We lawyers can usually get the charge reduced to DWAI. Then everything's hunky-dory, right?

Here's a sobering lesson from a client who took a DWAI:

is there ANY WAY to get this charge changed to something else?? i cross the canadian border A LOT for work, and every time i cross i have to pay $200 canadian, and risk not getting in as it's at the will of the border patrol officer. if there is anything i can do to change the charge on my record, or clear my record completely...i'd be willing to partake in anything, or do/pay anything to make that happen. please advise me on this, as it's a really really important part of my job that i be able to cross the border with no problems.

i hate that this one thing is goin to haunt me for years and years. let me know if you know of anyting i can do.

Read more at this Canadian immigration FAQ.

Another reason not to drink and drive; and to fight any DWI charge.

Albany DWI "Blanket Patrol"

Big news in Albany - this past weekend had a "blanket patrol" per Capital News 9.

Nice bit from the story - 944 traffic stops and 21 "drunk driving" arrests. If I've got this right, they interrupted the lives of about 1100 people (figuring 1.2 people per car) to make 21 arrests.

Also seems like 21 DWI arrests on a weekend for 11 municipalities is less than normal, not more. Maybe they should just focus on routine traffic enforcement.

NY DWI: Why low BAC cases should be fought

I got a call the other day from a prospective DWI client. His BAC was 0.16. It's already difficult in Albany to negotiate a reduction with a BAC that high. But it's worse than that. He had a previous DUI offense 3 years earlier and his lawyer pled him to a DWAI. That causes a big problem - he is ineligible for a conditional license. This guy won't be driving for at least a year.

On the prior offense his BAC was 0.08. I wrote recently about perspectives on DWI defense. My position remains that low BAC cases should always be fought. This case is a great example of why.

Paris Hilton had a BAC of 0.08, and they didn't fight the case. She apparently got a reduced charge - called "alcohol-related reckless driving". From what I can tell this is known as "wet reckless". Dry reckless does not involve alcohol. She got 3 years probation, and that led to her stint in jail.

You would think Paris Hilton could afford a quality DUI lawyer to fight her case. With a BAC that low, the chances of winning are strong. See People v. Beltran for an example.

In New York State, if your BAC is 0.08, in my opinion it makes no sense to plead guilty to a DWAI without thoroughly testing the prosecution's case at least through a suppression hearing. As the recent phone call and Paris Hilton's experience suggest, pleading to a reduced DUI charge can have very serious consequences.

Speeding ticket and DWI data

Interesting data on the web about speeding tickets on the Rochester Democrat and Chronicle website. There's another data set on DWI: RocDocs DWI.

Now, I say the data is interesting. Partly that's because it doesn't look accurate to me. For example it appears there are more DWI arrests in Albany County than in the Bronx. And there also appear to be no speeding tickets in New York City.

But it's still interesting.

Albany: DWI and Mass Transit

Here's an article in the Times Union. Albany County couldn't get a program together to provide free bus rides home for New Years Eve drinkers. For various reasons we ended up with nothing at all.

Government is just fine at getting the arrest and prosecution programs together. Prevention must be too difficult.

I wrote an article about the policy choice between mass transit versus DUI enforcement just a few days ago. Albany's failure to manage a one-shot kludge shows how far we have to go.

David Soares deserves credit for trying to save it. I could say "too little, too late," but that's not fair. This isn't the DA's job. Not really the Sheriff's either. In a state and country that are increasingly run from the top down, it falls to the state and federal governments.

DWI: To Blow or Not to Blow

One thing comes up a lot in DWI seminars. A client calls you late at night. They've been arrested and the cop wants them to blow into the "Breathalyzer". In most of NY the device is actually a Datamaster, but question is the same. And to be clear, I'm talking about the breath test in the station. The one in the field is commonly known as an alcosensor or field breath screen.

The answer varies from lawyer to lawyer, though some things are pretty straightforward. The most obvious one is that you shouldn't drink and drive. Okay, we've got that out of the way.

Beyond that, you have to look at the situation. One big question is: How bad do you need to drive?

If you refuse the breath test they will take your license. You get a chance at getting it back at a DMV hearing within about 2 weeks, but you usually lose that hearing.

For people who badly need to drive, this consequence is so overwhelming that it's a bad idea to refuse.

However, with the new Aggravated DWI law in NY and plea bargaining problems in some counties (especially Albany), in some cases it may actually be better to refuse. The penalties for Aggravated DWI are more severe than the "common law" DWI that you typically get if you refuse. This applies if your BAC is over .18, and the plea bargaining restrictions vary but in Albany it starts at .20. If your BAC is in that range, then you're probably not making thoughtful decisions anyway.

But if you believe, as I do, that the breath tests are highly unreliable, the danger of blowing a .20 or above might make it sensible to refuse.

On the other hand, if you don't need to drive, it may make more sense to refuse. One lawyer I know advises his clients not to blow. He believes juries will understand when the client says: "My lawyer told me not to blow. I followed his advice."

Many lawyers believe you should blow in almost any circumstance. The biggest exception is if there was an accident and there might be a dead body. In that case the consequences of a high BAC reading on the machine (prison) is typically worse than losing your license.

Based on my experience, I lean towards believing most clients should blow. Driving is important for almost everyone. And the simple truth is that we win a lot even in cases where the client blew a high BAC. Also, you might end up blowing a low BAC.

Then there are innovative approaches. I've heard a bunch. I'm not recommending anyone actually try these, but I'm kinda looking forward to the day someone comes in my office having done them. Please note this is not real legal advice - it's more humorous than anything else.

One of my favorite ideas comes from a judge (now retired). He said he carries a flask of liquor in his glove compartment. If he gets pulled over, he says he'll hand the cop the keys, open the flask and start drinking. The theory is that it renders the breath test result invalid. I don't think it'll work, but maybe some day we'll see.

Another idea is to go limp. If you're going to do this you should do it before the cop gets to your window. The theory on this one is that they have trouble stating their theory that you were drunk. They can't do field sobriety tests, and they don't get the other "clues" like glassy/bloodshot eyes, impaired/slurred speech, and impaired motor coordination. It's also hard for them to say you refused to blow. If they know what they're doing they'll get a judge to order a blood draw. But even so, they often make mistakes in that process. Still, this is a pretty risky strategy.

Maybe some of our readers will chip in with their own ideas.

The best approach is the obvious one. Don't drink and drive. I tell my clients to keep the phone numbers for taxi companies handy so they will have a way to get home. I do this myself even though I rarely drink. A taxicab ride is a lot cheaper than a DWI.