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.

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.