Saratoga County Criminal Defense Lawyer Blog

New York 'de-criminalized' possession of small amounts of marihuana many years ago. That doesn't mean that marihuana is legal in this state, though. Far from it. Possession of any amount is still 'unlawful'. And as a recent piece in the New York Times pointed out, a police officer with even the smallest trace of initiative can find a way to upgrade 'unlawful' to 'criminal'.

Penal Law Section 221.05 states that "a person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana." 'Unlawful' is actually a term of art meaning, essentially, "except as expressly permitted by the Public Health Law," though if you're a member of the general public you can assume that if you've got it you've got it unlawfully.

Unlawful possession of marihuana, or UPM, is a violation, not a crime. The fine for a first offense is $100; for a second offense within three years, $200; and for a third offense, $250. For a third offense the court can also (or instead) sentence you to 15 days in jail. Any conviction carries with it a mandatory surcharge: $120 in a city court, $125 in a town court.

Note that if you've got more than 25 grams of marihuana you can be charged, in addition to UPM, with a crime: criminal possession of marihuana in the 5th degree (Penal Law Section 221.10). That's of course for starters. The penalties get worse as the amount of marihuana increases.

Continue reading "Unlawful Possession of Marihuana in New York" »

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" »

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'" »