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" »