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Top-Hat-Monkey-e1518804289657We’re revisiting the subject of ‘lese majeste’.  That’s the crime, you may recall, of insulting people who can make you wish you hadn’t.  Since our prior entries (here and here), there have been a number of developments, both abroad and in the US.


The military government of Thailand has brought more prosecutions, and a couple of them show the potential scope of the offense:

We’ve talked about pardons, and other forms of executive clemency, before.  Since we talked about ‘sealing’ last time, though, we thought we’d revisit the topic briefly.

A pardon is not the same thing as a declaration of your innocence. In fact, as stated in Roberts v. the State of New York, an 1899 decision of New York’s Court of Appeals, “[a] pardon proceeds not upon the theory of innocence, but implied guilt. If there was no guilt, theoretically at least, there would be no basis for pardon.” The court pointed out that it’s the judicial branch that decides whether a defendant is guilty or not guilty  The executive branch (a governor or a president) has no say whatever in the matter.

A well-known example of a pardon – and its legal effect – is United States v. Arpaio.  It was covered extensively by the press, including, for instance, the Washington Post. Arpaio was pardoned after a federal conviction for criminal contempt.  He then went back to the court that had convicted him and demanded that the court “vacate all orders and dismiss his case with prejudice.”  The court, in its decision, refusing to dismiss the case, summarized the legal situation as follows:

As reported in many news sources, including the New York Daily News and National Public Radio, it’s now possible, in some circumstances, to get a New York criminal conviction sealed.  The Collateral Consequences Resource Center has a page laying out (per, for the most part, Section 160.59 of the Criminal Procedure Law) eligibility for sealing, procedures for applying, standards by which applications are to be evaluated, and the effects sealing is intended to have.  And New York’s Office of Court Administration has published a set of forms for applying, along with three pages of instructions.

Here are some things worth noting.

First, you have to live with your conviction for a while before you can have it sealed.  Nothing can be done until ten years have passed (jail or prison time doesn’t count towards the ten years).

As we mentioned in a May entry, Utah has amended its drunk-driving statutes(s) to lower the blood alcohol content (BAC) necessary to take a simple instance of driving with alcohol in your system and convert it into Driving Under the Influence (this is referred to as ‘Driving While Intoxicated’ in New York).  The new standard in Utah is a BAC of .05 of 1 percent.  This makes Utah’s anti-drunk-driving scheme the strictest in the US, as every other state uses a standard based on a blood alcohol content of .08.

We’re taking a follow-up look at the statute, because it may represent the future standard for the rest of the US.  To cite our 2013 entry on the subject yet again, much of the rest of the world has adopted a .05 (or stricter) standard, and the National Transportation Safety Board (NTSB) has been advocating a .05 limit for some time.

Even New York, under Governor Andrew Cuomo, has apparently considered reducing the blood alcohol content necessary to create a per se criminal offense at .05, just as Utah has.  This was according to an article in Glens Falls’ Post Star, entitled “How Low Should It Go? The .05 BAC Debate.”  A change along those lines would seem to be consistent with the anti-impaired driving push reflected in 2012’s ‘3-strikes’ rule. That rule has been discussed several times in this blog, of course; promulgated by the Department of Motor Vehicles without legislative input, the rule delays, or in some cases prohibits, re-licensing for drivers with a history of offenses involving alcohol or drugs.  Its purpose is to keep impaired drivers off the road, and the purpose of a .05 standard is the same.  The Post Star’s article was published in 2013, though, when the National Transportation Safety Board first suggested the .05 standard. New York is still at .08, of course.

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.