Blog post of funny traffic stops

The linked blog post shows some funny traffic stops. They're not all funny. #1 is pretty hilarious. Other good ones are #20, 17, 15, 14, and 11. The rest are so-so.

Consequences of Aggressive DUI Enforcement

So, you think aggressive DUI enforcement is a great thing, huh? I got this message from a friend the other day. I edited it a bit.

I was driving on I-80 in New Jersey. I missed my exit and had pulled onto the shoulder to read the map when a State Trooper parked behind me. I was arrested for DUI because I looked red-eyed and my legs were wobbly from exercise and sleep deprivation thus resulting in poor balance on the field sobriety tests. They took me to the station and breathalyzed me twice. After being interviewed by 3 different cops I was eventually let go because I WAS SOBER. The problem then was my car had been impounded and everything had closed for the night. I had to spend $138 on a hotel My car cost $220 to get back, plus $40 on a taxi.

I'd love for someone to find me the statistics on all the people who have been subjected to this kind of treatment. Good luck with that. The winners write the history books. The DUI enforcers - the winners - don't keep those stats, or certainly not anywhere we might find them. Even if we found some, how would we know they're accurate?

I've known this friend for a few years now. He's from a part of the country where they have a noticeably different accent. He also skips to the beat of his own drummer - he's different. Not bad, just different. He has his own way of looking at things and doing things. But that describes somewhere between 25 and 50 percent of the population. Unfortunately, many cops upon encountering someone like this will erroneously conclude that the person is intoxicated or on drugs.

Several months ago I had a conversation with a police officer friend of mine. I asked him what he would do if someone he arrested blew a 0.05 BAC. Under NY law, that is prima facie evidence you are not impaired. His answer was that he would then assume the person was impaired by drugs. They have tests to check for that (DRE - Drug Recognition Expert (or Evaluator)). So I guess my friend was lucky in NJ that he wasn't subjected to even more tests.

For all those who beat the drum for more and more DUI enforcement, does any of this bother you?

Can't Afford a Lawyer?

It's a common phrase heard in the legal community. I can't afford a lawyer. The statement is usually followed by a request for free advice or pro bono representation.

I did a quick search on Google for "can't afford a lawyer" - there are 63,900 results. By contrast, "can't afford a doctor" has 6720 results, and "can't afford a gardener" has 672. I have to admit I'm surprised there were so many for gardener. Also seems odd that one is exactly ten times the other. It'll probably change in a day or so.

The "can't afford a lawyer" statement often comes from people who appear to have money. They're accused of possessing marijuana for example. I'm not up on the latest prices but it is my impression that marijuana costs quite a bit more than cigarettes, and cigarettes aren't cheap. If you can afford marijuana, then you can afford a lawyer. What the person really means is: "I don't want to pay for a lawyer." Well then you've made your choice. I can't afford to give you free advice or represent you pro bono either.

There's a sharp contrast between "can't afford a lawyer" and the situation being such that it's not worth hiring a lawyer. I sometime get calls from people who had an accident and their car was damaged. It was the other driver's fault and that driver's insurance company is only offering $2000 for the car, and the car's worth $3000. You might have a good case, but the cost of a lawyer is significantly more than the value of the dispute. Fortunately for small amounts like this you can go to small claims court.

But if you're charged with a crime, you should hire a lawyer. Does it cost a lot? Usually yes. Is it worth it? Usually yes. Some people will search for the cheapest lawyer they can find. Think about that one. A well-respected lawyer notes that no one looks for the cheapest heart surgeon. I agree that heart surgery is generally a more serious matter than most criminal cases but a criminal case is still a pretty big deal.

Since I mentioned pro bono, I've got to mention a riff of jokes I heard as a play off of that term. Pro bono is when lawyers represent people for free. Usually this is a public policy thing or something to help the poor. I do some pro bono work on drug policy and also helping minor party candidates with ballot access. But here are some other variations - some are mine, some are ones I heard:

No bono: Your client doesn't pay you.

Low bono: You don't get paid in full.

Slow bono: You get paid late.

Quid pro quo bono: Your client pays you with some other service in barter.

Show bono: You get paid with tickets to a musical.

Sunny bono: Your client offers you a weekend in their crappy condo in Florida.

Sonny bono: Your client sings to you.

Snow bono: Your drug dealer client pays you with cocaine.

Ho bono: Your prostitute client pays with ...

Bono bono: You get a U2 CD.

If any readers have more, post a comment.

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.

Pringle Hearing and the DWI Prompt Suspension

In handling our DWI cases, the "prompt suspension law" has been bothering me, along with a number of other issues. I first wrote about this a couple years ago as part of a post about judges who have policies. So now I'm going to rant about what's wrong with the prompt suspension and how Pringle v. Wolfe (88 N.Y.2d 426 (1996)) is being applied (or misapplied).

For those who don't know, here's what happens at the start of most DWI cases. The defendant shows up for the court date on the ticket. If the defendant pleads guilty (to DWI or DWAI), then the judge suspends the defendant's license. The court almost always grants a "20-day stay" which allows time to get into the Drinking Driver Program (DDP). By getting into the DDP, the defendant gets a conditional license which lets you drive to work, for work, and some other driving. You get your full license back in 90 days on a DWAI. That's what happens to the guilty people.

For those who show up and plead not guilty, it's a mixed bag. Many judges will suspend the driver pursuant to the prompt suspension law (Vehicle & Traffic Law § 1193[2][e][7]). If you have a lawyer or know what you're doing, you can ask for a Pringle Hearing. That will usually let you keep your license for a few days. You almost always lose the Pringle Hearing because the deck is stacked against you (I'll get into that). Thirty days after the suspension starts you can go to DMV and get a conditional license similar to the DDP one. Some drivers will be able to get a hardship privilege for the 30-day period, but that's difficult and the privilege is very limited -- to and from work only. It doesn't let you drive for work. If you're unemployed, it doesn't let you drive to look for work either.

So, for the innocent (remember that whole innocent until proven guilty thing?), you either can't drive at all or have extremely limited driving for 30 days, and then your driving is somewhat limited while the case is pending - which can take a year or more. The guilty get their full license for 20 days, then get the milder suspension for 90 days. This is the root of the problem, but there are many branches.

Underlying all of this is the real purpose - the prompt suspension discourages people from fighting the DWI case. Innocent people who need to drive plead guilty so they can drive.

There are at least a couple constitutional issues. For starters there's procedural due process - you're supposed to get notice and an opportunity to be heard. You show up to court and the judge tells you he's going to suspend your license. In many cases that's your notice and most people don't know to ask for the Pringle Hearing (your opportunity to be heard). In some courts the judges require you to make a written motion for your Pringle Hearing. You get the opportunity to be heard only if you make a formal application for it. And some judges will suspend you before the Pringle Hearing starts.

Then within the hearing, the standard for suspension is simply whether the "accusatory instrument" (the ticket) is facially valid (they wrote it correctly) and whether there's a valid chemical test showing your BAC was over the limit (0.08). There are other issues that should be considered, but many judges are not interested in them. They don't care about probable cause, or if the chemical test sheet shows irregularities that are unexplained. I just had a hearing where the chemical test showed that the "reference standard" (a bottle of solution that is confirmed by a lab to be 0.10) tested at 0.09 and the temperature was off by 0.1 degrees celsius. I argued that the State should have to prove by expert testimony that this was a valid chemical test. Instead the police officer, who got trained 3 months ago, said that he was trained such variation was acceptable. There's no foundation for his expertise. Nada. He's not an expert. He doesn't know the difference between vertical and horizontal (he demonstrated that in the hearing). Allowing junk science with no foundation into a courtroom further violates the defendant's procedural due process rights.

The process does allow the driver to "rebut" the findings. But this is a ridiculous shifting of the burden. Instead of the State having to show that its tests and evidence are valid, the defendant has to show the tests and evidence are invalid. The State is taking away a substantial right and it should be the State's burden.

The burden shifting also takes us into another realm - substantive due process. When the State infringes a fundamental right, it's means must be narrowly tailored to a compelling interest. Here the Courts will likely say that maintaining highway safety fits. Of course it seems like the government keeps finding more and more compelling interests. The larger problem is the lack of tailoring.

If the concern is protecting highway safety, then how is it tailored if the guilty ones get to continue driving on an unlimited license for 20 days and continue somewhat limited for 90 days, but the innocent drivers can't drive (or are very limited on the hardship privilege) for 30 days and are then limited for an indefinite period of time that often exceeds a year?

Our civil rights are being trampled. Crossing the border is a nightmare to protect us from illegal aliens who want to work on our farms, build our buildings, and take care of our gardens and children. Millions of New Yorkers are subjected to intimidating traffic stops (and worse) to protect us from those who drive 80 mph on roads designed for cars to go 120 mph. With DWI, thousands upon thousands of drivers are rudely interrupted from their daily lives and subjected to "field sobriety tests" (also junk science) and more, and many innocent drivers are suspended for a year or longer. I do appreciate the desire to keep us safe from drunk drivers. The criminal process takes care of that without the need for the prompt suspension law.

Here's what the Pringle case says about that:
To compel the State to provide another level of procedural protection would require plenary hearings and would effectively convert the license suspension proceeding into a trial on the merits of the underlying criminal charge. Such a procedure would be prohibitively expensive and cumbersome, and would subvert the State's compelling interest in promoting highway safety. In view of the temporary duration of the license suspension, such elaborate procedural protections are not constitutionally mandated.

The license suspension may be temporary, but it is also indefinite. I've had clients go a year and a half. Prohibitively expensive and cumbersome? How about for the innocent defendant? Why does the State's half-assed approach (letting the guilty drive while suspending the innocent) to safe roads outweigh the innocent driver's need to drive?

Pringle, by the way, relies on cases involving a refusal to take the chemical test. One case it relies on is Mackey v. Montrym, 443 US 1 (1979), which states:

Nor is it any answer to the Commonwealth's interest in public safety that its interest could be served as well in other ways. The fact that the Commonwealth, for policy reasons of its own, elects not to summarily suspend those drivers who do take the breath-analysis test does not, as the District Court erroneously suggested, in any way undermine the Commonwealth's strong interest in summarily removing from the road those who refuse to take the test. A state plainly has the right to offer incentives for taking a test that provides the most reliable form of evidence of intoxication for use in subsequent proceedings. Indeed, in many cases, the test results could lead to prompt release of the driver with no charge being made on the "drunken driving" issue. And, in exercising its police powers, the Commonwealth is not required by the Due Process Clause to adopt an "all or nothing" approach to the acute safety hazards posed by drunken drivers.

This still seems to me to be a procedural due process analysis. I wonder how it would fare under substantive due process. Perhaps we'll see.