DWI in NYS-Time for some justice?

New York, like most states, has steadily made its laws against drunk driving more and more severe over the past few years. In 2008 NY added a new offense called "Aggravated DWI" that dramatically increased fines, revocation periods and potential jail sentences for first time offenders with .18% or more blood alcohol concentration. In 2010, yet another change was made that created a new "felony" offense for DWI while a passenger under age 16 was in the vehicle. At the same time the NY legislature added a "mandatory alcohol interlock" statute that now requires all first time offenders convicted of DWI to have an alcohol sensor installed on any vehicle they own or drive. These changes were additions to already existing statutes that gave NYS some of the mot severe DWI laws in the country.

These changes wouldn't bother me much, if the legal system wasn't completely stacked against those accused of DWI. After all, none of us wants drunks driving around in 3500 lb. vehicles. But, the way the system works now often means that many of those accused are coerced into pleading guilty to an offense that they may not really be guilty of. Those that choose to fight the charges against them find that unless they are able to afford expensive "experts" to testify about breath tests and so-called "field sobriety tests" they are at the mercy of system that assumes black box breath test machines and silly exercises conducted by cops are "reliable."

For the average citizen accused of DWI the "catch-22" nature of the law comes as a huge surprise. For example, take someone stopped by the police and accused of DWI. They had been given a few "sobriety tests" in the dark on the side of a road. For all intents the tests are designed to make people "fail," which gives the police the "probable cause" to arrest.  Once arrested they are transported to a police station and advised that they can either take a "chemical breath test" on a black box machine the police have, or they can "refuse" the test and be subject to a 1 year revocation of their driver's license.  Most people agree to the test.  The result of that test is the main evidence used against them by prosecutors.

The peoiple accused of DWI first appear in court they are subject to having their driver's licenses suspended "pending prosecution" as long as the police have given the court a sworn document that a "chemical test" had been administered to the defendant and it showed .08% or more blood alcohol level.  What this means is that before anything has been proven, before any evidence is heard, before a defense attorney has an opportunity to address any of the issues regarding the consitutionality of the arrest, the defendent's driver's license is suspended!!  Again, BEFORE ANYTHING is proven a defendant has his license suspended UNTIL something is actually proven in a court of law!!

Police Abusing New "Move Over" Law

On January 1, 2011 a new traffic law took effect in New York State that requires drivers to "move over" if they encounter an emergency vehicle (police, fire, EMS, etc.) parked or stopped on the shoulder or side of a multi-lane "controlled access highway" (this includes interstate highways like I-87 and all of NY's parkways, including the Taconic, Palisades, Northern State, Southern State, etc).

Specifically, the the Ambrose-Searles ‘Move Over Act’ requires drivers in NYS to exercise due care to avoid colliding with an authorized emergency vehicle which is parked, stopped or standing on the shoulder of a road or highway with its emergency lights activated. Drivers must reduce speed on all roads when encountering such vehicles, but on parkways, interstates, and other controlled access highways with multiple lanes, drivers are further required to move from the lane immediately adjacent to the emergency vehicle, unless traffic or other hazards exist to prevent doing so safely. All that sounds fine and everyone wants to see our emergency responders protected as much as possible.

A first time violation of the new law is a "2 point" offense on the New York DMV point system and can result in a fine of as much as $275 (a conviction can also cause a substantial increase in auto insurance rates).

All of that sounds fine and everyone wants to see our emergency responders protected to the greatest extent possible. Unfortunately, police forces across NYS have begun aggressive enforcement strategies that are little more than the "move over" equivalent of a "speed trap." Reports from drivers across the state indicate that police agencies, including the New York State Police, are sending out teams of patrol cars to set up "sting" operations that involve having one police stop on the shoulder of a highway (no emergency involved) put their emergency lights on and wait for driver's to come by, but fail to "move over". Parked a little further down the road is a second police car waiting to wave drivers over and ticket them for violating the "move over."

In some cases, a whole string of cars will be pulled over and ticketed. The unfairness of this is clear, the law was meant to protect emergency workers who were ACTUALLY responding to an emergency. It was not intended to give the police an excuse to set up ticket traps. In addition, by setting up these ticket traps the police are violating the traffic law themselves by using their emergency lights when no emergency exists.

This kind of police operation needs to stop. If an actual emergency exists and a driver violates the "move over" law then the police should enforce it. But, creating a bogus emergency to simply create violations of the law is an abuse of power.

Press reports of the abuse include:

http://www.dailyjournal.net/view/story/72b766ece28a446f9f5e4195ab200435/NY--Move-Over-Law-Tickets/

http://the390.com/downstate/move-over-detail-yields-27-tickets

http://buffalo.ynn.com/content/all_news/540440/move-over-ticket-blitz-begins/

Getting it all backward...

In Florida each judicial district has a "Public Defender," which is the title given to the person who is the head of the Public Defender's office in each district. What's fairly bizarre about this is the "Public Defenders" in Florida are elected, not appointed. One of the obvious problems with having an elected official be responsible for protecting the legal rights of the poor is that a public defender's job is not to satisfy the public, its to zealously represent people accused of crimes regardless of how hideous are the crimes they're accused of.

Well, in the judicial district that includes Jacksonville this strange arrangement has resulted in someone winning an election for Public Defender who campaigned on a platform that consisted of being less confrontational with the police and even promising to no longer have PD attorneys question the credibiliity of the police. This campaign platform was so successful that the local police union actually endorsed the candidate making the promise.

Once the election was over the new "police/prosecution friendly" Public Defender promptly announced that he was going to fire the 10 most experienced attorneys in the office. Those being fired include two very experienced PD's who lead an effort to overturn the wrongful conviction of a 15 year old beaten and scared into confessing to a murder he didn't commit (this became the subject of an HBO film called "Murder on a Sunday Morning," for more info go to: http://www.hbo.com/docs/programs/murder_sunday/).

So, the bottom line is that the role of the Public Defender in Jacksonville has been turned upside down, with the office now being controlled by someone who is close friends the with State's Attorney who prosecutes cases and is partially beholding to the police union for getting into office. There's a lot more to the story and for anyone interested I highly recommend this article:
http://www.folioweekly.com/documents/editorialtemplate_001.pdf.

Jail Time For A Speeding Ticket? Yup...

For those who regularly drive Route 17 through Sullivan County a word of warning is in order. Local courts in Sullivan have been cracking down hard on what they call "high speed violators"....i.e., those ticketed with speeds over 90 mph. Plea bargaining these tickets down has become very difficult in many towns and downright impossible if the speed is over 95 mph. The risk is not just an "8 point" or "11 point" ticket, in one town called Mamakating the local justice regularly sentences people ticketed for speeds over 95 mph to 7-10 days in the county jail!!

So, not only can you get rapped with a hefty fine (as much as $655 for 41+ mph over the limit) and huge increases in your auto insurance, you can, and will, spend a week or more in the lovely Sullivan County jail. To top it all off, if your point total reaches 11 in 18 months, the DMV will suspend your license and charge you a "Driver Safety Assessment" that can reach $225/year for 3 years... And that can all happen even if you have a perfect driving record!

On one level this is hard to believe because even someone convicted of first-time DWI almost never gets jail time, can get a "conditional license" and keep driving to work or school. I'm not condoning driving at 100 mph, but I sure think that someone driving drunk is a bigger danger than a speeder on an open road...

Even minor drug convictions can have lasting impact

The "war on drugs" has gone on for nearly 40 years and there's no victory in sight. But, there's plenty of victims...sadly some of the victims aren't aware of some of the scariest consequences that a drug conviction can result in. For example, in New York State possession of less than an ounce of marijuana isn't a criminal offense, its simply a "violation" called "Unlawful Possession of Marijuana"(UPM). On paper its a pretty innocent sounding offense, roughly the equivalent of a traffic ticket. You pay a fine and go your way...well, not quite!

For first time offenders caught with more than an ounce of pot (a misdemeanor) the typical resolution is a plea bargain down to a UPM violation. Sounds good, right? Well, what most people don't know (and a lot of attorneys don't either) is that even a conviction for a violation like UPM can deprive you of college financial aid for ONE YEAR! Yep, its right there in the 1998 Higher Education Act passed by Congress. So, if you're in college or about to go to college are are relying on either Federal or State tuition aid, be careful about accepting any pleas to minor pot (or other drug offenses). It could really cost you down the road...

Town and Village Justice Courts-NYT Article

Ummm....long time no post (from me). It was a busy summer with several cases that really dragged on. If anyone hasn't seen the terrific series of articles in the New York Times about the village and town justice court system in NYS, you really should check it out. Here's a link:

http://www.nytimes.com/2006/09/26/nyregion/26courts.html

It's some very good reporting about a situation that's a total mess in some places. The Times largely focused on upstate T&V courts, many of which have non-lawyer justices handling a variety of criminal and civil cases. From personal experience I can say that working in a court where the judge isn't a lawyer (and doesn't know a whole lot about the law) is scary, frustrating and sometimes, painful. The sad thing is that it's not like the vast majority of these judges don't want to do the "right thing". They do!! The trouble is they don't understand that our criminal law system (as much of a mess as it is) hangs by a thread...and that thread is insuring that every defendent gets at least a bare minimum of due process. All too often, that's what's missing in these courts.

Fortunately, most of the courts I regularly practice in do have attorneys serving as town justices. The major problem in those courts is the lack of a "record". There's no court stenographer or audio tape of proceedings in these courts and that makes it very hard to make an effective appeal of a mistaken judicial decision.

Misguided Traffic Enforcement

In the wake of four fatal accidents on the NYS Thruway a couple of months ago, the NYS police have embarked on a "speeding crackdown" along sections of the Thruway where the accidents occurred. Sadly, this ticket 'blitz' will likely have the same result that previous campaigns have...basically nothing will change.

Despite what the state police believe, the problem on the Thruway and other highways really isn't speeding. After all, in Germany there are NO SPEED LIMITS on large sections of the Autobahn. Yet, the fatality rate on the Autobahn is LOWER than the fatality rate on U.S. interstate highways! If speed were the major cause of fatal accidents certainly the fatality rate, in a country where 120mph is routine, should be higher than it is in the U.S., right?

Truth is, the real problem is reckless driving, not speeding. Drivers that routinely pass on the right, truckers that drive in the middle lane of a 3 lane highway and cause people to pass them on the right are what cause most accidents on our superhighways. But, state troopers sitting in their cars waiting for an isolated driver moving at over the speed limit don't discourage reckless driving at all! What they do accomplish is to rack up lots of revenues for the state on the townships where they issue tickets.

Question: has anyone ever seen a NYS trooper give a speeding ticket to a trucker?? Ever?? I've driven the Thruway almost every day for 20 years. I've never seen it happen. I've never seen a trucker get ticketed for tailgating, either. But, I see truckers both speed and tailgate every day. What's the deal? It's an important question because nearly 35% of all fatal highway accidents involve a truck. Maybe giving a few tickets to those guys would make things safer. Of course, that would mean enforcing the law in ways that might actually reduce fatalities.

Bottom line is this: if the NYS police really want to make our highways safer they need to get into their cars and actually PATROL! They need to enforce the laws we have against the kind of behavior that really causes accidents. Nailing the lone 'speeder' who isn't endangering anybody doesn't do a thing.