11005141674_a24f87760a_mJust a quick update to an entry we made in 2015, regarding ‘Lèse-Majesté’, the ancient crime of insulting those in power.

As of January 1st, 2018 – According to a German news site, DW.Com – Germany will have no law punishing lese-majeste.  The repeal was prompted by a high-profile prosecution under the law.  A german talk show host had read a ‘defamatory’ poem on the air.  The Turkish president found it defamatory, at any rate: it contained very rude statements that ostensibly referred to him.

The prosecution didn’t go much of anywhere.  Because the author’s purpose in composing and broadcasting the poem was to be offensive generally, the charge was dismissed because prosecutors couldn’t establish a specific intent to insult a particular person.  But the charge HAD been authorized by the German government, and the threat of its use led to law’s repeal.

On March 23rd of this year, the Governor of Utah signed a bill making it illegal to have a blood or breath alcohol concentration (BAC) of .05 of 1 percent or greater, either at the time you take a chemical breath test or at the time you actually operate a vehicle.  A first or second violation of this law is a misdemeanor.

Every other state, including New York, has a .08 limit.  Utah nevertheless finds itself in illustrious company, according to a paper published by NCBI (the National Center for Biotechnology Information; NCBI is an arm of the National Institutes of Health.)”All states in Australia now have a 0.05 illegal BAC limit. Austria, France, Germany, Italy and Spain have lowered their limit to a 0.05 illegal BAC”

For years, the National Transportation Safety Board (NTSB) has been advocating a .05 limit, as we discussed in a 2013 entry.

As we noted as long ago as 2014, there have been a number of lawsuits aimed at undoing the Department of Motor Vehicles’ ‘three strikes’ rule. This set of administrative regulations delays (and sometimes completely rules out) re-licensing for drivers who have had three or more alcohol- or drug-related incidents.

When our earlier entry was put up, it was clear that these cases weren’t getting anywhere in Supreme Court, New York’s trial-level court.  Some of the cases, though, proceeded to the Appellate Division of the Supreme Court.  There they essentially hit the same road block: the courts all agreed that the Department of Motor Vehicles has virtually unlimited discretion when it comes to re-licensing after a revocation.

New York law requires that drivers use ‘due care’ when passing emergency vehicles parked by the side of the road.  The law of course protects police cars and ambulances (and their occupants), but many other vehicles are considered emergency vehicles, including ‘blood delivery vehicles’ and ‘ordnance disposal vehicles of the armed forces of the United States’.  And new categories are added from time to time.  The most recent change, as the Albany Times Union has reported, came when the private conveyances of volunteer firefighters and ambulance crews were added to the list.

What does ‘due care’ involve?  Well, the measure, found in Section 1144-a of the Vehicle and Traffic Law, is informally known as the ‘move over’ law.  It’s called that because, when driving on a four-lane highway, “due care shall include, but not be limited to, moving from a lane which contains or is immediately adjacent to the shoulder[.]”

Due care as defined this way can place you, as a driver, on the horns of an unpleasant – and potentially dangerous – dilemma.  For instance, 1144-a requires you to move over, but only allows you to move over when “such movement otherwise complies with the requirements of this chapter including, but not limited to, the provisions of section[ ] . . . . eleven hundred twenty-eight of this title.”  Vehicle and Traffic Law Section 1128(a), in turn, only authorizes a change of lanes when “the driver has first ascertained that such movement can be made with safety.”

InjusticeIn an entry we published some time ago, we discussed some of the legal risks people run when they drive after smoking marihuana*.  What we didn’t really get into there is that – in New York – the risks run by drivers who use marihuana or other drugs (legally or illegally) are actually greater than those run by people who merely drink and drive.

This is because, when it comes to impairment, alcohol is privileged under Section 1192 of the Vehicle and Traffic Law.

It’s a criminal offense, of course, to drive ‘while intoxicated’ by alcohol.  As defined by Section 1192, you can be found guilty of driving while intoxicated either by meeting an ostensibly objective standard (Subdivision 2), or by meeting a patently  subjective one (Subdivision 3).


Just a quick note – and click to watch the video above.  One of our attorneys was interviewed (very briefly) by Al Vaughters of News 4 WIVB TV in Buffalo.  The subject was something dear to all our hearts: air fresheners and, more generally, things that can obstruct a driver’s view and thereby buy that driver a ticket.  We’ve addressed this, and related topics, in our own home-made video which can be found here, as well as another entry about window stickers (and, unbeknownst to the vast majority of drivers, their illegality).

And a – very quick – note within a note: Mr. Vaughters points out some interesting and surprising things about common air fresheners – things that have nothing to do with the law.  Suffice it to say that what you don’t know can damage your dashboard and upholstery.

A recent New York Times piece bears the pithy headline: ‘How Much Is Too Much Marijuana to Drive? Lawmakers Wonder’. We wondered too. We took a look at the article, and at the American Automobile Association’s new study, cited by the Times. It’s posted on AAA’s website, along with a lot of other interesting information on this topic. The study’s called ‘An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per se Limits for Cannabis’ and its answer (on Page 3 of the report) to the question posed by the Times, “how much is too much?” – that “a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported,” – boils down to “it depends.”

Meanwhile, at least three states, according to the study (on Pages 2 and 25) have put per se limits on the amount of THC you can have in your system and drive legally. ‘Per se‘ is latin for ‘in and of itself’. If you adopt a per se rule, you’re saying that any other fact is irrelevant. “I don’t care whether you were impaired or not,” the rule says, “I’m not punishing you for being impaired; I’m punishing you for driving with x amount of a substance in your system!”

The authors of AAA’s study concluded, however, that if the purpose of per se statutes is to deter impaired driving, they don’t do a very good job. Because of the nature of THC (‘THC’ is short for ‘delta-9-tetrahydrocannabinol’, and it’s what winds up in your system after you use marihuana), it has different effects on different metabolisms; in particular, you build up a tolerance to it over time. If you set an arbitrary limit on the amount of THC a driver can have in his or her system, you essentially make it legal per se to drive with less than that in your system. The authors fear this means that a good many people who are are impaired will get away with driving in that condition, because they have a low tolerance, but don’t meet the per se standard. Contrariwise, drivers who are seasoned marihuana users, and therefore can have a higher level of THC in their systems without being impaired, will be prosecuted, impaired or not.

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“What’s in a name? That which we call a rose By any other name would smell as sweet.”

Romeo and Juliet (II, ii, 1-2)

What’s in a name? ‘Lèse-Majesté’ is an attractive name. It’s French, derived from the latin laesa majestas, which Black’s Law Dictionary (5th Edition) defines as ‘injured majesty’; this term covers “any offense against the king’s person or dignity.” It can be a synonym for high treason.

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We thought we should expand a bit on an entry we published some time ago about fake IDs and the consequences of using them.

Be Polite!

The consequences, we noted, may include charges ranging from mere infractions to felonies. Don’t forget that you’re actually committing a class D felony when you carry one of these things. The person issuing your citation knows that, so if you do make the mistake of using a forged license, don’t make the additional mistake of being rude to the arresting officer – we’ve heard from at least one person in a position to know that when it comes to charging, politeness counts.

Administrative Punishment for Uncharged Offenses

In that entry, we also pointed out that there will be inevitable administrative repercussions, including the suspension or revocation of your real license.

Among other things, we said that DMV doesn’t need a conviction before it takes action against you. All the law requires is a violation of the Vehicle and Traffic Law, so a mere charge is enough to trigger an administrative response.

And that’s true, as far as it goes, but DMV may take action against you, we find, even without a charge. That’s worth restating: If you use a fake ID – and if DMV can figure out who you are – your license (or, if you’re from out-of-state, your privilege to drive in New York) can be revoked without a charge ever being brought.

We’ve had more than one report confirming this.
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Goya Dunce Cap.jpgHow do you stay on the right side of the law? Having some idea of what the law is might be a good start.

Not knowing the law won’t get you anywhere – as anyone who’s been pulled over for having a hanging air freshener or rear-window sticker knows – because “ignorance of the law is no excuse.” Courts have always been skeptical of a defendant who denies knowing illegal conduct was illegal, and this legal concept was first recorded (in the Latin maxim “ignorantia legis non excusat“) about a thousand years ago.

The principle – less pithily put, perhaps – is embodied in Section 15.20 of New York’s Penal Law, which says that

A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense . . . .

But if ignorance of the law is no excuse, how do you avoid ignorance: how do you figure out what the law is?

Some things don’t take a lot of thought. For instance, you could study Section 160.00 of the Penal Law, and the sections immediately following, which define robbery as, essentially, a ‘larceny’ committed using force or the threat of force. You might then take a side trip to Section 155.05 to find out what ‘larceny’ is (larceny is a medieval French word for ‘stealing’). And if you’ve done all that you should, to be really thorough, follow up with an examination of the court reporters to make sure you haven’t missed anything a judge has said on the subject. But most people don’t have to. They just know they’re not supposed to hit strangers in the street and take their money!

The rules that govern our lives aren’t always that simple, though, as we’ll see below.
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