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.

Tales from the Script

I'm reading this new book, Tales from the Script, and I love it. It's about screenwriting and filmmaking, providing great insights from screenwriters, and also from other players in Hollywood.

This is my friend Peter Hanson's baby. He used to write for Metroland, and has a lot of friends here in the Albany area. I was already a fan but now I'm a much bigger fan.

You can buy Tales from the Script on Amazon.

There's also a DVD coming out, and it will be screened at the Spectrum sometime in March. I can't wait.

Dealing With Police: Film

The group Flex Your Rights has a new film. The premiere will be shown live on the web at: 10 Rules for Dealing with Police. I'm looking forward to it.

Their previous film is on YouTube - Busted: A Citizen's Guide to Police Encounters.

How long does a ticket stay on your record in NY?

Speeding tickets and other traffic infractions that happen in New York will show up on a NY driving record. First of all, it only shows up on your record after you've been convicted (if you plead guilty to something or if you lose at trial). Second, in my experience they seem to stay on a record for about three-and-a-half years.

While researching something else today, I came across the definitive answer.

Vehicle & Traffic Law § 354 says that the driving record, or abstract, "shall include enumeration of any convictions of such person of a violation of any provision of any statute relating to the operation of a motor vehicle or any accidents in which a motor vehicle driven by such person has been involved during the current calendar year and the three calendar years preceding that in which the request for the operating record is received ...."

Translating from the legalese:

1. "enumeration of any convictions" - As I said above, it goes on your record when you get convicted, not when you get the ticket.

2. "violation of any provision of any statute" - This is interesting. In one court we handle tickets often get reduced to city code violations instead of state law violations. Does a city code traffic violation go on a driving record? I don't think a city ordinance is considered a statute (something to research perhaps). I've never seen one of these on a driving record.

3. "relating to the operation of a motor vehicle" - What relates to operation? In my experience, most VTL violations do show up on a driving record. The big exception is VTL 1201(a), commonly known as "parking on the pavement", though I've also heard it called "unattended vehicle." I've never seen those on a record. But a seatbelt violation does show up on a record. Does wearing or not wearing a seatbelt really relate to operation?

4. "during the current calendar year and the three calendar years preceding" - That's pretty close to about 3 1/2 years. If it's January of 2010, the record should include everything that happened in 2010 (only January) and the three years before that (07, 08, and 09), or just over three years. But if it's December of 2010, then it covers all of 2010 and the same three previous years, or nearly four years.

So here's a tip. This suggests the best time of year to shop for car insurance (if have a busy driving record) is January. That way the record will only show three years of your misconduct instead of four.

Adrian Peterson: Speeding and Knowing Your Speed

The hot traffic court story of the week is Vikings running back Adrian Peterson ticketed for going 109 mph in a 55 zone. See the story on ESPN.

My favorite quote from the story is this from Peterson: I need to be more aware of the speed I was going ....

I should add this to my speeding ticket excuses post, because I've heard it before. "I didn't realize I was going that fast."

Maybe this excuse makes sense when you're ticketed for 80 in a 55. But if you're going over 100 mph, you really should know. I had one guy ticketed for ... I'm not kidding ... 125 mph. He said he didn't realize he was going that fast.

Look, if you're going to drive at speeds that high, please be aware of what you're doing. While it may be dangerous to drive at such speeds in general, it's definitely more dangerous if you're not paying attention.