Articles Posted in vehicle and traffic

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.

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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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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No Texting 240 px.jpgNew York’s Legislature has been busy this year. So, as trick-or-treaters make last-minute adjustments to their costumes (and November, with a courtly gesture, murmurs “enter freely and of your own will”), younger drivers, in particular, may notice the cold wind of regulation whipping round their ankles.

As of Saturday, November 1, 2014, at 12:00 AM (the witching hour), penalties for drivers caught talking on a cell phone or texting will be increased. The potential fines for everybody will go up by $50: the maximum fine for a first offense will be $200. The number of points for everybody (five – we repeat – five!) will remain the same.

Younger drivers – ‘probationary and junior drivers with a Class DJ or MJ driver license or learner permit’ face greatly enhanced administrative sanctions under the new scheme. Specifically, for those drivers, a first offense involving cell phone use or texting while driving will result in an automatic 120-day suspension.

Alice_05a-240 Wide.jpgImage by Sir John Tenniel (“Alice’s Adventures in Wonderland” (1865)) [Public domain], via Wikimedia Commons

Since 2009, New York has required drivers convicted of driving while intoxicated to install ignition interlock devices (IIDs) in any vehicle they either own or operate. Per Section 1193(1)(b)(ii) of the Vehicle and Traffic Law, the minimum period of this restriction will be 6 months, and it can be longer.

You’ll have to submit an affidavit at sentencing. In this affidavit you’ll either provide detailed information about any vehicle you own, or certify that you have no vehicle. The court will give you ten days from sentencing to get an IID installed in any applicable vehicle, but from the moment you’re convicted you must have one in any vehicle you drive. For this reason it’s recommended that you get one installed before sentencing.

There’s another reason to get it installed early, if you decide that it’s inevitable. You get credit for this period even if you haven’t been sentenced yet. (Before you do it, however, be warned: the wording of the statute suggests that – once you get it installed – “the period of interlock restriction” has commenced, whether you’ve been sentenced or not.)

Complying with the interlock requirement costs money, of course, although financial assistance in is available for low-income drivers. A ‘financial disclosure report‘ is available through New York’s Division of Criminal Justice Services. Drivers requesting assistance should fill it out and submit it to the court prior to installation, if they’re getting it installed early, and in any case prior to sentencing.

Once you have your IID installed, all you have to do is figure out how to live with it. And this may or may not be a problem for you, if our clients’ experience is anything to go by. Some of them have had no issues at all. Others have found the devices a chronic headache.
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In a departure, we have made this – our 50th entry – a video entry. The topic is Section 375(30) of New York’s Vehicle and Traffic Law. This statute forbids operating a vehicle with an ‘obstructed view’.

We referred to some judicial opinions in the video, without citing them by name. We’re providing links to some of those opinions below.

In our entry of March 13, 2014, we discussed ‘boating while intoxicated’ and/or the consequences of whetting your whistle on the water. We look this week at the sorts of trouble you can get into – without getting your feet wet – all in the name of having a good time.

The law clearly tries to cut the recreational vehicle user some slack. As we pointed out last time, convictions for ‘boating while intoxicated’ or for ‘snowmobiling while intoxicated’ aren’t currently reported to DMV. And, as we’ll see below, you can get away with some things on your own property that would be offenses anywhere else. Things have tightened up a bit over the last ten years, though.

Once upon a time, you couldn’t commit vehicular assault or vehicular homicide with a boat or a snowmobile. We’re linking here to People v. Davis, an appellate decision from 1991. The court there considered (and dismissed) the argument that a snowmobiler might be convicted of vehicular homicide.

Decisions like Davis were implicitly overruled by ‘VaSean’s Law‘, which was passed in 2005, and made changes to the laws concerning vehicular assault and homicide (see, for instance, Penal Law Sections 120.03 and 125.12). These statutes now explicitly apply to boats, snowmobiles, and all-terrain vehicles.

Like so many things, of course, one of the keys to committing these crimes is alcohol. So we thought we’d examine some of the mischief you can do with an All-Terrain Vehicle, after we say good bye to winter with a brief glance at snowmobiling while intoxicated.
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It’s a snow day here in upstate New York. The schools are all closed, and throughout the Capital Region, children are at home watching TV, while their parents shovel snow and try to coax them outside.

Now, adults tend to think that snow storms are natural phenomena and that school closures are a natural consequence of heavy snow. But fourth graders know better. A nine-and-a-half year old we know has explained how she herself brings about snow days, and it’s a simple, three step process. (1) Leave four spoons in the freezer overnight; (2) flush three ice cubes down the toilet; and (3) sleep with your pajamas inside out, and backwards.

Not that adults are immune to magical thinking. “The judge has got to dismiss this ticket,” one man assured us. “The trooper wasn’t wearing his hat when he gave it to me. If the trooper isn’t wearing his hat, the ticket’s no good, right?” This shows a touching and naive faith in human nature, but it’s a myth.

There is actually some mystery surrounding traffic tickets, as we’ll get into below. For one thing, where do troopers get the authority – with or without the stetson – to issue them for traffic violations they didn’t witness themselves? But while the Criminal Procedure Law (CPL) requires that a ticket be issued “by a police officer or other public servant authorized by law to issue same,” it says nothing about hats.
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This is the third in a series of entries about the US Constitution’s ‘confrontation clause’. In May we published a very brief overview and history of the provision, which is found in the Sixth Amendment, and in August we got into the nuts and bolts of Crawford v. Washington, a Supreme Court case that set the stage for today’s ‘confrontation clause’ confrontations.

That decision concluded that “where testimonial evidence is at issue” the Sixth Amendment demands, in its simplest terms, an opportunity for cross-examination. Crawford didn’t tell us, though, just what’s included in that term ‘testimonial’, and how ‘non-testimonial’ hearsay might be treated by individual states.

Which brings us once again to People v. Pealer, a recent decision from New York’s highest court, the Court of Appeals.

In our September 5th entry, we addressed a secondary topic noted in Pealer: the fact that driving around with a transparent sticker on your rear window is actually illegal. This time around we’ll take a quick look at the primary issue in the case.

Robert Pealer, the defendant, had been charged with driving while intoxicated. How did the People know he was intoxicated? A breathalyzer test. How did they know the breathalyzer was working properly? A ‘certificate of calibration’, a ‘certificate of maintenance records’, and a certification of the sample of the simulator solution used in the machine – a rubber stamp, essentially.

Not surprisingly, Mr. Pealer didn’t think this was sufficient. He thought he had a right to cross examine the person or persons who prepared those certificates. But he was wrong, according the the Court of Appeals, as we’ll see below.
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We’ve had a number of cases, recently, involving college students arrested with fake driver’s licenses. This isn’t really surprising in Saratoga Springs. There’s an ‘attractive nuisance’ here in the form of the Saratoga Performing Arts Center, a music venue that sells alcoholic beverages.

It is surprising that these students clearly had no idea what they were getting themselves into when they obtained – and then tried to use – the licenses.

For one thing, it’s a crime to buy a fake ID in New York. Vehicle and Traffic Law Section 392-a prohibits buying or selling a false, fraudulent or stolen license, or identification card. A first offense is a misdemeanor. A second, within five years, is a felony.

Get caught using a fake ID to buy alcohol, and you’ll face vehicle and traffic – or even criminal – charges. You can expect administrative sanctions, as well, as we’ll discuss below.
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