Abolish The Prompt Suspension Law: A Pringle Hearing Lament

The prompt suspension law in New York gives a judge the power to immediately suspend the license of a person charged with Driving While Intoxicated (DWI). It is this writer's hope that one day, this terrible law will be repealed and replaced with a policy that makes sense. The legislature believed that the prompt suspension law would save lives by removing dangerous drivers from the road. This notion is disingenuous at best, and simply absurd at most. Because almost every person charged with DWI can keep driving by simply showing up to court and pleading guilty. Thus, an admission of guilt is rewarded with the keys to the car.

As an attorney who concentrates some of my criminal practice on DWI defense, I have to counsel people charged with DWI about making some very difficult decisions. I have a case now where my client's alleged BAC is .08% which is the statutory minimum in New York. It is my opinion, and I bet many prosecutors would agree, a .08% case will never make it to a jury trial because breath testing devices are unreliable and will not overcome the reasonable doubt standard at such low BAC readings (among other problems). The fact of the matter is, a breath testing device is half machine with moving parts and half computer with secret software. They are prone to interference from all kinds of chemicals and interference from radio waves. A breath testing device assumes every person's chemical and physical attributes are the same. I could go on and on but I think you get the picture. Machines make mistakes. People make mistakes. When the BAC reading is .16% or over, it may not matter that there is strong possibility the reading is off a percentage or two (which most BAC measurements generally are). However, when the BAC is .08% there exists a strong probability the defendant is innocent which becomes a reasonable doubt. In my experience, it makes sense to fight a .08% case because the worst case scenario would be a bench trial on the lesser included DWI offense, Driving While Ability impaired (DWAI). The standard plea bargain in a low BAC DWI case is generally an offer to reduce the charge to DWAI. By rejecting the offer and preparing for trial, a prosecutor may be encouraged to reduce the charge to a DWAI which does not get tried in front of a jury, but rather a single Judge which is a far simpler matter to handle for a prosecutor than a jury trial. In other words, you have nothing to lose by fighting other than you have to pay a lawyer like me.

So my client decided to contest the charges and the Judge is suspending his license after a hearing next week (assuming we lose, which we will). This hearing is called a Pringle Hearing. Judges' hate these hearings and I don't blame them. Criminal defense attorneys love them because it gives them an opportunity to question the police and generally prosecutors do not participate. I've heard stories about a legendary NY DWI lawyer who has kept Town Justices on the bench for five hours late into night while conducting a Pringle Hearing.

The purpose of the Pringle Hearing is to give a DWI defendant the opportunity to rebut the court's finding that a valid chemical test result was obtained and that there was reasonable cause to arrest the defendant for DWI. After the court makes these findings, the defendant is given the opportunity to present evidence to rebut the findings of the court. Well how do you rebut the finding that the chemical test was valid? You subpoena the chemical test operator to court for the hearing. You have him bring maintenance records, calibration records, test logs, etc. You question the operator about his experience and make sure he or she knows what they are doing. How do you rebut the finding by the court that there was reasonable cause for the arrest? You put the arresting officer on the stand. He arrested your client because he allegedly observed indicia of intoxication such as glassy eyes, impaired motor coordination, slurred speech, etc. Then he made your client perform the so called Field Sobriety Tests (which are designed to produce failing results for sober people). Interestingly, the Field Sobriety test were designed to be accurate something like 80% of the time to detect BAC's in excess of .10%. In the case I have been discussing here, my client who blew a .08% allegedly failed the Field Sobriety Tests. This fact suggests there was something wrong with either the breath test machine, or the Field Sobriety Tests themselves.

So you can see why Judges generally find Pringle Hearings to be a major pain in the ass. The defense attorney is going to try to get as much testimony from the State's witnesses as possible. Pringle Hearings are simply another bump in the very long and winding road of DWI litigation. Well Judge Richard P. Tarantino of the City Court of the City of Glens Falls decided he had enough of the Pringle Hearing charade and put a stop to it by preventing a very prominent DWI lawyer by the name of Eric Sills from questioning a cop about any of the issues I went over in the above paragraph, which all bear directly on evidence that has the tendency to rebut the findings of the court. Eric Sills filed for declaratory relief and the Appellate Division upheld Judge Tarantino's ruling that severely limits the scope of the Pringle Hearing. You can read the decision here:

http://decisions.courts.state.ny.us/ad3/Decisions/2009/504307.pdf

For those of you practicing in the 3rd Department or for those of you arrested for DWI around here, the Pringle game is changing:

"We are not persuaded by petitioner's contention that his
due process rights were violated by respondent's rulings. While
issues pertaining to the lawfulness of the police stop, probable
cause for arrest, and whether the breath test device was working
properly at the time of the test are relevant to the
admissibility of breath test results at a criminal trial (see
People v Freeland, 68 NY2d 699, 700 [1986]), and may ultimately
bear on the determination of criminal culpability, they are
beyond the scope of a Pringle hearing."

Vanderminden v. Tarantino

I've got a Pringle Hearing on my calendar for next week. I was in court last night for the arraignment on my case and the Judge informed me he is aware of the above case and advised me to keep it in mind. The court is trying to foreclose the ability of a defendant to rebut the findings of the court by eliminating the only source of evidence. I can't help but feeling my client's Constitutional rights are in jeopardy.

The New York prompt suspension law that spawned the Pringle Hearing and its legacy of confusion and bad case law should be repealed as soon as possible. In this day and age, when government is digging deeper and deeper in to the taxpayers' pockets, idiotic policy like the prompt suspension law should be repealed. A conspiracy theorist might suggest the prompt suspension law and DWI laws in general were inspired by the criminal defense bar. Even though I make a living doing the work resulting from the prompt suspension law, I want it to end. This law causes true despair in the hearts and minds of ordinary people who didn't hurt anyone or anything. And most importantly, the Prompt Suspension law does not work at all. Its supposed to keep dangerous drivers off the road, if only until they plead guilty or win their case.

If you do not agree with me I will conclude with this fact: After all this trouble, the hearings, the subpoenas, the stenographers, the lawsuits, the deprivation of liberty, the assault on due process rights, etc., guess what? Almost every driver can be driving immediately after the Judge suspends their license by asking the court for what is called a "hardship" license. It's a restricted license, but the defendant can drive and he or she is right back on the road.

For another great discussion of this problem check out Warren Redlich's post here: http://albany-lawyer.blogspot.com/2008/12/pringle-hearing-and-dwi-prompt.html

I'm Your Lawyer When You Pay Me

I got a call from a potential client today. He found me online, probably through a google search for a New York traffic ticket lawyer. His first words to me were "I'm shopping around for a lawyer." Oh boy I thought, I know where this is going. Nowhere. He gets my time for free because even though I know this lead is a loser, I have to be polite and courteous. I'm a professional after all, at least most of the time.

So the "consultation" begins- "Yes, I handle lots of speeding tickets in Wilton Town Court. This is what I can do for you blah, blah. My fee to handle your case is $300. etc." This guy then asks me if I would base my fee on the outcome of the case. I beg the reader to please, please, please, never ask a criminal defense lawyer that question. To suggest that I would do any better or worse of a job because of money is frankly insulting. I know I'm young and naive but I believe that there is still some sanctity left in the legal profession. I can hear the old farts laughing.

It may be possible that I have joined a profession that the public holds in such high disregard that they have no qualms about telling us up front they are "shopping around for a lawyer" like they are shopping around for a TV or a used car. Furthermore, would you ever ask your orthopedic surgeon if he would give you a 20% discount if the the range of motion in your new knee wasn't as good as promised? I'm not saying we're as important as surgeons but a lawyer is at a minimum, a trained professional.

I believe that anyone considering hiring an attorney, whether it's a DWI or a Worker's Comp case, should talk to more than one attorney to find the right fit. However, it's one thing to test a lawyer for his knowledge and skill versus testing a lawyer to find the lowest price.

And to the point I wanted to make- A criminal defense lawyer must be vigilant about being paid up front. If I did not get paid up front, I would be out of business immediately. If I lowered my fee because the client does not have the money, then I would have no money and I would not be a lawyer. When I get paid, I am retained. To anyone who is thinking about hiring a criminal defense lawyer, think about coming up with some cash quickly, then call me. Don't waste my time. It cost me 100k and seven and a half years of school to discuss your legal situation with you for an initial free consultation.

A Client In Jail

Sometimes I question my sanity for becoming a criminal defense lawyer. This week has been one of those times because I have spent most of my time trying to free a client from the county jail. When I have a client in jail, my mind is consumed with concern for the client, and concern for myself that I am doing everything possible to free my client. There will always be hard work involved in any kind of lawyering. However, there is a cavernous divide between the significance of worrying about someone's money, versus someone's liberty.

While the definition of liberty varies, the notion is at its essence what defines me as human being, and an American citizen. Americans posses the fundamental right to not be in jail.That's what freedom means to me. There is a difference between the county jail and prison. People in prison have been convicted in a court of law and hopefully been afforded the full opportunity to stand up to their accusers. Most people in jail merely stand accused. They are supposed to be presumed innocent by the court yet they are treated like convicts. Of course dangerous and violent defendants must be locked up until it can be determined they are not a danger to society. But for the citizen accused of a crime where the only possible victim is themselves, (such as people arrested for drug possession where the drugs are for personal use), the deprivation of liberty is an enormous infringement of civil liberties and human rights.

This most recent case has been especially trying for me because my client, was in my opinion, a political prisoner for the four nights she spent in jail. She is a medicinal marijuana user who stands accused of possessing (not selling) an illegal amount of marijuana for personal use. That is the position of the police, not my opinion only.

The New York State Assembly recently passed a bill that would legalize the possession of marijuana for medicinal use. You can read about it here: http://saratogalawyer.blogspot.com/2008_09_01_archive.html (the very first post of the Saratoga Lawyer Blog!) The amount of marijuana my client stands accused of possessing would be legal if this bill was passed. It's something to think about if you care about liberty.

Drug Evidence Suppressed Because of Illegal Traffic Stop

A decision came down from the NY Supreme Court 3rd Department Appellate Divison last Thursday upholding a lower court's decision suppressing the evidence of a substantial amount of drugs discovered as the result of a traffic stop. Because the court deemed the traffic stop as illegal, or more specifically, because the police did not have "reasonable suspicion" to pull the defendant over, the resulting evidence must be suppressed, or banned from use at trial. The defendant, Matthew Davis, was initially indicted and charged in Schenectady County Court with Criminal Possession of a Controlled Substance in the Second Degree, Criminal Possession of Marijuana in the Second Degree, and violating New York Vehicle and Traffic law §1128(a).

Without this evidence, the people have no case and the defendant walks. The drugs suppressed in this case included a large amount of marijuana and "nine bags of hallucinogenic mushrooms". The defendant in this case, Matthew Davis, was described by on lookers as "skipping" out the court house door upon hearing the good news. Local famous attorney Terrence Kindlon's office handled the appeal and I'm assuming was Davis's trial lawyer as well. (Terrence Kindlon was Christopher Porco's lawyer)

As a traffic lawyer, this decision caught my attention because it includes a discussion about New York State Vehicle and Traffic Law §1128(a). I'm going to call this the "swerving statute". This particular traffic infraction lays the foundation for many DWI arrests as the police often pull drunk drivers over after observing them violating this law. NY VTL §1128(a) states "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." In this case, the arresting officer testified that he observed Matthew's vehicle briefly contacting the fog line. I've often heard police call this "hitting" the line.

Matthew's argued that he did not violate the statute because his tire never went over the line, only in to the line. Because New York courts have never directly addressed the issue of "hitting" the line as the sole basis for a traffic stop, the court looked at the way other States interpret their similarly worded statutes and noted variations, ultimately concluding that merely encroaching in to the line, without crossing it, cannot by itself be construed as a violation of NY VTL §1128(a).

The Court held:

Here, we decline to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law. However, in this case, we are mindful that [the police officer] only testified as to brief contacts with the fog line prior to the stop. He did not indicate that, for example, defendant was weaving, driving erratically or even that he drove onto the shoulder of the road.

People v. Davis

So a prima facie case for violating NY VTL 1128(a) in cases where the driver merely "hits" the line must include evidence that the driver was "weaving" or "driving erratically".

Marijuana In The Local News

In the past twenty four hours, the Albany Times Union has published three stories related to marijuana. As a marijuana lawyer who practices in Albany County and Capital Region courts, I can't help but comment.

Shen hockey in turmoil over alleged marijuana use

"According to multiple sources, the players are accused of smoking marijuana at the hotel the team stayed at while competing at the SUNY Morrisville tournament."

Is this really a story? I mean, would you expect anything else from high school hockey players, or hockey players anywhere for that matter? BIG STORY high school hockey players smoked weed and they are in BIG TROUBLE. Oooohhhh. Those kids are bad!

Traffic stop in Colonie turns up gun

"COLONIE — Two parolees face felony weapons charges after an officer, who smelled marijuana smoke at a routine traffic stop, allegedly found a loaded handgun in the car."

So I guess what happened here is that the cops are saying they smelled "burned marijuana" and that gave them probable cause to search the car without a warrant. As a marijuana lawyer I would be interested to know how the arresting officer can distinguish between burned marijuana and other burned vegetation. Was he trained in this skill? If so, did his instructor burn sage, and then cannibis? Parsley, and then cannibis? Tobacco, and then cannibis? The story does not mention if cannibis was actually recovered from the defendants.

O.D. Heck workers face drug charges

When I started reading this story, I thought these guys must have been smoking crack or doing coke. These guys took what many blue collar guys refer to as a "smoke break". Except, they were smoking the un-lethal illegitimate cousin of tobacco, marijuana. You know, I'm willing to bet these guys are great at their jobs and if they are smoking while working, they are probably self medicating. Two of the accused are grounds workers.

Despite the fact that the legislature of New York State decriminalized the possession of marijuana a long time ago, our society still suffers from "refer madness". The guys in this story are being treated as criminals because they were smoking in public which is a misdemeanor offense under NY Penal Law 221.10. The story says they were observed passing through a patch of woods and were on a deserted golf course where they were observed passing a pipe. The statute outlaws smoking weed in a "public place". It seems to me these guys did everything they could to conceal their smoking by avoiding a place where other people were not likely to be present.