Saratoga County Criminal Defense Lawyer Blog

We've been discussing some legal trials and administrative tribulations faced by our client - you'll remember that he'd allowed his vehicle to become intimate with a tree under circumstances the police found suspicious. Following a 'report of refusal' alleging that our client had refused to take a chemical test of his blood alcohol content, and an initial hearing at which the arresting officer didn't appear, our client was sent on his way. His license, which had been suspended, was reinstated, and everything was fine, license-wise.

But only for the moment. The man was still facing criminal charges, and even if the criminal action should end in a favorable disposition (it didn't) the administrative proceeding was bound to go on. In fact, a favorable disposition on the underlying charge would just increase the stakes at a refusal hearing. We are by no means the first to point out that if you win at trial, but lose a refusal hearing, you aren't eligible for any conditional or restricted license. So in practical terms, you may find yourself worse off than if you'd been convicted.

Our client didn't have that problem. As we mentioned last time, he ultimately made his peace with the authorities, and took his lumps, including a six-month license revocation (with a conditional license to get to and from work).

The decision our client had to make was whether to go ahead with the refusal hearing. He was of course already on a six-month revocation for DWI. If DMV found that he'd refused the chemical test, he was looking a year on top of that. However, a refusal revocation can run concurrently with a DWI revocation. This meant that if he were to withdraw his request for a hearing - in other words, admit a refusal - he would get credit for every day of the refusal revocation that overlapped with the DWI revocation.

Continue reading "DUI/DWI in New York and Refusal Hearings, Part 2" »

Our client really felt his long (if self-inflicted) ordeal should be over. After a six-month revocation for drunk driving, his full license had been restored (he'd limped along all those months on a conditional license that got him to and from work). The ignition interlock device he'd had to install - which essentially turned his car into a rolling breathalyzer - had been removed.

But the wheels of justice turn slowly, and if our client had forgotten this, he now got a reminder from the Department of Motor Vehicles. It came in the form of a notice scheduling, or rather rescheduling, an administrative hearing. The subject of the hearing? His alleged refusal to take a chemical test in connection with the DWI/DUI he'd already been punished for. If the hearing didn't go his way, he was facing a new, year-long revocation.

As we've discussed before, DMV's administrative proceedings can run parallel to any criminal action. And this makes sense, because technically they're very different things, particularly when it comes to DWI and refusal.

If you drive drunk, it's a public safety issue. You're endangering everyone else on the road. If you're found guilty of driving drunk, you'll have a criminal conviction; you're branded forever as someone who's been an enemy of society, and you'll carry all the baggage that goes with that. Almost as an afterthought, you also face potential jail time, fines and surcharges, along with mandatory license revocation and a $750 driver responsibility assessment.

If, on the other hand, you refuse a chemical test (of blood, breath or urine), you're just violating the terms of your driving privilege. So, you only face license sanctions and (heavy) financial assessments. (Although you should be warned that prosecutors can make you pay for a refusal in the criminal proceeding as well, by refusing to plead the charge down in the case of a refusal. This is notably the case in the Capital Region's Albany County.)

In our client's case, both the criminal and administrative proceedings started off with a bang when he wrapped his vehicle around a tree (after leaving the road and bumping many yards across an open field). He wound up spending hours in an emergency room with injuries to his head and torso, questioned intermittently by a police officer who hovered over the scene, "like a vulture."

Continue reading "DUI/DWI in New York and Refusal Hearings, Part 1" »

A very interesting New York Times article has come to our attention. It discusses the increasing use of video cameras (including body-mounted cameras) by both the police and the public, and notes that the issue of citizens videotaping police in the performance of their duties is coming up nationwide.

The United States Court of Appeals for the Second Circuit, which covers New York, still hasn't directly addressed the issue (see our entry of July 27, 2011); but an opinion out of the First Circuit, which is next door in Massachusetts, has handed a major victory to those who believe the First Amendment protects the right to record police activity.

The case is Glik v. Cunniffe and in a nutshell the scenario goes like this: Simon Glik was arrested for videotaping another man's arrest. The charges were dismissed, and Mr. Glik sued the arresting officers.

The officers countered by demanding that Mr. Glik's complaint be dismissed. It made no difference whether his version of the relevant events were true, they argued: they had 'qualified immunity' (an official can't be sued for actions taken on the job, if he or she is going about that job in a reasonable way). An officer isn't entitled to qualified immunty, though, if his action violates a 'clearly established' constitutional right. The trial court refused to dismiss the case, and the officers appealed.

Continue reading "The Police, the Public, and the Video Recorder" »

An article in today's New York Times discusses recent findings by the National Transportation Safety Board (NTSB) on the dangers inherent in cell phone use by drivers. According to the article, these findings reflect a growing consensus: cell phone use including talking, texting, reading emails, playing Angry Birds, is not only dangerous, it's compulsive - an addiction. In that article we read for the first time that smart phones are sometimes referred to as 'crackberries'.

Having in mind, no doubt, the enormous success of America's 40-year war on drugs, the NTSB has recommended a similar war against in-transit connectivity: banning the use of all electronic devices while driving.

Banning cell phone use entirely is certainly further than New York has gone, although the state has imposed some strict limitations on it, as we'll see below.

Continue reading "'Crackberries' and the Bumpy Road to Highway Safety in New York" »

"Can anyone tell me Mr. Bile's big mistake? Anyone?" Monsters, Inc.

A recent article caught our eye. It concerned a young woman, a tattoo gun, and a couple of kids who now have artificial (if permanent) blemishes. To be more specific: an 18 year old finds herself in hot water because she allegedly tattooed two school girls. Both underwent the procedure voluntarily; the problem is that the older of the two was only 13, while the younger was 12. (The tattoos in question were a heart and a star. Who got which, we don't know.)

It's a story that raises some interesting issues and, though we're mindful that no one's been convicted of anything at this point, we thought we'd explore those issues. We're taking the prosecution's claims here as a hypothetical scenario, rather than the gospel truth.

So, with that understanding, where would a hypothetical young lady have gone wrong, if she'd done the things the defendant in the story is accused of doing? Clearly she would have committed one major error (at least twice), and may have messed up in other ways as well, as we'll go into below.

Continue reading "A Minor Blemish? - Kids and Tattoos in New York" »

Pepper spray has been in the news lately. For instance, you're probably aware of the incident captured in the video below: a couple of uniformed goons soaking California college students with the stuff.

Sadly, the only thing that's unusual about this casual act of brutality is that the public and the press sat up and took notice of it. Things just like it - and worse - happen all the time.

This next YouTube entry provides an example. The video's had at least a million and a half views, and shows the pepper spray treatment applied to protesters in New York. You have to be on your toes to make out the police officer doing the spraying, but the effects of his action are very, very obvious.

The officer, who sweeps in from the right in a white shirt, has been identified as a deputy inspector with the New York City Police Department. In other words, he's a supervisor. His grasp of department guidelines could be stronger, however, as it seems his prank violated them: it's cost him ten days' vacation time. This administrative sanction may well have been because he committed a vicious assault on harmless civilians. On the other hand, we note that some of his colleagues were downwind when he cut loose.

So, just what is pepper spray, and if you can't douse disgruntled citizens with it, just for being disgruntled (at least when other cops are standing next to them), who can you use it on, and when?

Continue reading "'Blowin' in the Wind' - Pepper Spray and the Police in New York" »

The client came to us with a legal problem - and a conundrum. He'd been 'breathalyzed' after a minor fender-bender, because a police officer had smelled beer on his breath. His blood alcohol content? Well, as measured by the machine, it was in the low astronomical range. That was the legal problem. His actual intake prior to the accident? Two 12 oz. beers, he said. That was the conundrum.

The legal problem was clear enough: a B.A.C. of .07 - one third our client's reported B.A.C. of .21 - is prima facie evidence of impairment. ('.07' here is shorthand for ".07 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva." This formula is laid out in Section 1192 of the Vehicle and Traffic Law.)

A driver with a B.A.C. of .08 or greater is driving while intoxicated - a misdemeanor, if it's a first offense, a felony if not.

A B.A.C. of .18 or greater will buy you a charge of 'aggravated' driving while intoxicated. A first offense is still a misdemeanor, but fines and license revocation periods are essentially doubled. And perhaps most importantly for a first offender, the law makes it difficult to get the charge reduced to 'driving while ability impaired', which is a traffic violation. With a reported B.A.C. of .21, our client was, of course, facing a charge of aggravated DWI.

It's hard, though, to commit aggravated DWI on two 12 oz. beers. You will surely have an elevated B.A.C. if you drink them both within an hour. If you weigh a hundred pounds or less, you might even reach a B.A.C. of .08, which would make it criminal to drive. But it's a long way from .08 to .21, and our client, while not a large man, was by no means tiny, either: two beers might have given him an actual B.A.C. of at most .05.

How do you solve a mystery like this? In most cases, sadly, it turns out that the client was mistaken about the number of drinks or the size of the drinks. ('Just one beer' has more than once turned out to mean a 32 oz. bottle.) Every once in a while, though, a client seems very sure of his or her facts. And this was one of those times.

Continue reading "DUI/DWI in New York: The 'Mount Everest' Defense" »

"Go tell the Spartans, thou who passest by, that here, obedient to their laws, we lie." Simonides

Last week's entry addressed "leaving the scene of an incident without reporting." Defined in Section 600 of the Vehicle and Traffic Law, the statute is designed to punish hit-and-run driving. As we discussed, it's very important to comply with Section 600's requirements because, if the consequences of an accident are bad enough, a violator with no prior record can do 2 1/3 to 7 years in prison.

But just what does compliance look like in any but the most standard situations? We've attached a report by WTEN in Albany, NY, that touches on some of the ins and outs. The story involves an off-duty state trooper, his pickup truck, and a dead man left like a dog in the road.

The ultimate conclusion of the grand jury in the case? Heartless, maybe. Criminal, no.

Continue reading "'Hit-and-Run' in New York - Part 2" »

"[A]ll citizens will be required to change their underwear every half hour. Underwear will be worn on the outside so we can check." Woody Allen Bananas

New York doesn't want drivers to evade liability for harm they may do. For this reason, the Vehicle and Traffic Law has very specific instructions for drivers who have been involved in an accident:

[B]efore leaving the place where the damage occurred, [each driver shall] stop, exhibit his or her license and insurance identification card for such vehicle, . . . and give his or her name, residence, including street and number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual's insurance policy, and license number to the party sustaining the damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer.

Information gained through this mandatory disclosure can be used to make insurance claims, and in civil litigation, administrative proceedings and even criminal prosecutions (in cases where the driver may have been drunk, for example). However, even though the information can be used to prosecute the driver providing it, New York's Court of Appeals has dismissed arguments that requiring the disclosure violates constitutional protections against self-incrimination. The court concluded in People v. Samuel, that

[t]he duties imposed . . . are reasonable exercises of police power by the State to regulate activities directly relevant to public safety. On this view, the incidental and limited risk of inculpation by identification and report of motor vehicle operators whose conduct involves, or is likely to involve, criminal accusations is insufficient to inhibit the regulatory power by the interposition of the privilege against self incrimination.

To encourage compliance, the same law forbids "leaving the scene of an incident without reporting" and makes the consequences of doing so very unpleasant.

Continue reading "Hit-and-Run in New York - Part 1" »

In a prior entry, we noted that a local reporter had been charged with Obstruction of Governmental Administration, allegedly for asking police officers at a crime scene for information. At the time, the reporter's employer, the Post-Star of Glens Falls, NY, protested and declared an intention to fight the arrest.

We have since heard, via the Post-Star, that the charge has been 'resolved'. Apparently, the court has granted an adjournment in contemplation of dismissal (lawyers often call it an 'ACD'). As the Post-Star puts it, "prosecutors have agreed in principle" to drop the charge.

Is this a thunderous vindication of the press? Not really.

An ACD works like this. The case is adjourned (literally "put off until another day") for six months. If the court hears nothing further in that time, the charge is automatically dismissed.

As soon as the adjournment is granted, the defendant is released "on his own recognizance" and if bail was posted it must be returned. Once the case is dismissed, the law requires that mug shots and fingerprints be destroyed, and the file is sealed.

These are good things. When you have a client who's behind the legal eight ball - and just about all criminal defendants are - you're very happy when an ACD is offered.

However, when you take a good look at the definition of an ACD, it by no means implies exoneration. The statute says that an ACD "shall not be deemed to be a conviction or an admission of guilt." You could guess from this alone that an ACD is actually a form of judicial diversion - a program for those guilty parties who may - after a trial period - be found worthy of absolution.

But there's more.

Continue reading "Lake George NY: Reporter's Obstruction Charge 'Resolved'" »

"If it be not now, yet it will come." Hamlet , Act 5, Scene 2

With this entry we conclude the story of Mr. X and his ill-fated car. Part 1 of our series described how the car - unregistered and uninsured - came to be wrecked by a friend (Mr. Y). Our second and third installments went into the Vehicle and Traffic charges faced by Mr. Y and Mr. X right after the accident; and now we'll see that, when it comes to the Department of Motor Vehicles, you aren't out of the woods until the woods say you are!

DMV's response to Mr. Y's accident came four months after the tickets had been dealt with, and five months after the accident itself. Keep in mind, if five months seems a long time, that this agency has been known to take more than a year to act in these matters (have a look at Hall v. State DMV, which describes a poor car owner's plight as "a situation almost worthy of Kafka").

Meanwhile, Mr. X had moved on. He'd paid his fine. He'd been paid for the car. As far as he was concerned, the incident was closed. So when, one day, he found an envelope from DMV in his mail, he was in no way prepared for the notice he found inside. He was "the registrant of an uninsured vehicle involved in an accident," the notice read; because of this, his license was being revoked - for an entire year.

Continue reading "New York Auto Sale Goes Nuclear (And The Fallout), Part 4" »

"which brought pains thousandfold..." Homer, The Iliad

In this series of entries, we've been telling the story of a car sale gone terribly wrong. (It ended not only in hard feelings, but in the total destruction of the vehicle.) Part 1 of our series laid out the scenario; Part 2 discussed some legal problems faced by the would-be buyer. This installment addresses the immediate legal consequences to the seller, and in our next entry, we'll look at the administrative repercussions for both parties. To protect everyone's identity, we've named the seller and buyer 'Mr. X' and 'Mr. Y', respectively.

The story, in a nutshell, is that Mr. X's car had been taken and smashed by Mr. Y, a friend with a short fuse and a lead foot. Mr. Y had been charged with a couple of moving violations (unreasonable speed and failure to keep right), as well as driving without insurance and driving an unregistered vehicle. He also faced a single misdemeanor: driving with a suspended registration (Vehicle and Traffic Law Section 512).

The investigating officer declined, over Mr. X's objection, to charge Mr. Y with either theft or unauthorized use of the vehicle. He chose instead to cite Mr. X for permitting Mr. Y to drive his car without insurance and without license plates!

And even then, the officer wasn't done with Mr. X.

Continue reading " New York Auto Sale Goes Nuclear (And The Fallout), Part 3" »

"and its devastation..." Homer, The Iliad

As reported in our last entry, a car belonging to our client, Mr. X, had been snatched and then totaled by Mr. Y, a (former) friend. There was no insurance on the car, and the registration had been suspended.

In the next couple of entries we'll look at the consequences of this brief interval of madness, addressing Mr. Y's situation first, then Mr. X's.

Mr. Y, as you might guess, had no reason to be pleased with himself or his situation immediately following the accident. On a personal level, he'd completely burned his bridges with Mr. X. Civilly, he was liable to Mr. X for destroying his property.

And, of course, flipping a car on a public thoroughfare is likely to attract attention, and this accident was no exception. The police arrived before long and began to look into it. Once a police investigation was under way, the legal and administrative consequences started to mount up fast.

What were Mr. Y's potential problems, from the point of view of law enforcement - what was his 'exposure'?

Continue reading "New York Auto Sale Goes Nuclear (And The Fallout), Part 2" »

"Sing, goddess, the anger of Peleus' son Achilleus..." Homer, The Iliad