I knew it wouldn't be too long before legislatures everywhere created the new offense of "texting while driving". As a traffic ticket and criminal defense attorney, I'm a little intrigued. First of all, this new offense is completely unnecessary. It's not going to prevent people from texting while driving, just as the driving while using your cell phone law has not modified that behavior either. By the way, what about those 4x6 DVD displays people have in their dashboards? It won't be long until the new offense of "watching tv while driving" is created.
Lawyers love new laws. Sooner or later I'll get a client charged with the new offense. I can't wait until the cross examination. "Officer, you never actually saw my client type in text, did you?"
Plaintiff's lawyers like this law too. If someone is injured an a car accident by a "texter" and they are convicted of the texting offense, proving negligence will be easy.
Friday, October 24, 2008
Saturday, October 18, 2008
Criminal Procedure
A big part of my job as a criminal defense attorney is simply making a prosecutor do his or her job. The criminal procedure law is very specific and failure to follow the rules for prosecuting a defendant can result in either a dismissal of a case, or a far better plea bargain offer than what was made initially. I make sure a prosecutor follows the rules. Most prosecutors do their job very well, especially in Saratoga County where I live. But every once in a while, a prosecutor slips up and my client makes out well. Don't worry, I'm not talking about violent criminals here. Most of my clients are white collar.
I'm always amazed when a prosecutor asks me if my client has a criminal history. First,I'm pretty sure that running a record on a defendant is part of a prosecutor's job. Second, most of my clients are actually criminals and are probably not telling me the truth. Third, I have no way of getting the records a prosecutor can get. So why would they ask me about my client's record?
Just the other day I was working out a deal for a client charged with a marijuana offense. I rejected the first plea bargain offer and I was negotiating. The prosecutor asked me if the client had a criminal history. My client did in fact tell me this wasn't his first offense but he couldn't remember the outcome of the case, nor could he even remember the charge. So the case could have been dismissed or plea bargained, who knows? When this prosecutor asked me the criminal history question, what was I supposed to say? I said I don't know, and that was the truth. Apparently that answer was good enough for him and he gave my client a sweet deal.
I'm always amazed when a prosecutor asks me if my client has a criminal history. First,I'm pretty sure that running a record on a defendant is part of a prosecutor's job. Second, most of my clients are actually criminals and are probably not telling me the truth. Third, I have no way of getting the records a prosecutor can get. So why would they ask me about my client's record?
Just the other day I was working out a deal for a client charged with a marijuana offense. I rejected the first plea bargain offer and I was negotiating. The prosecutor asked me if the client had a criminal history. My client did in fact tell me this wasn't his first offense but he couldn't remember the outcome of the case, nor could he even remember the charge. So the case could have been dismissed or plea bargained, who knows? When this prosecutor asked me the criminal history question, what was I supposed to say? I said I don't know, and that was the truth. Apparently that answer was good enough for him and he gave my client a sweet deal.
NY Congressman On Trial For DWI
When I find out a politician has been charged with DWI, I'm going to blog about it.
Representative Vito Fossella, a Republican from New York City took his DWI case to trial in Alexandria, Virginia yesterday. Fossella was charged with driving with a BAC (blood alcohol content) of .17%. In VA, a person convicted of driving with a BAC in excess of .15% must serve a mandatory 5 day jail sentence. Wow! I thought New York's DWI penalties were tough. In New York, DWI offenders usually aren't looking at potential jail time until their third or fourth offense.
Tying jail time to a BAC level is absolutely nutty. As a DWI lawyer, believe me when I tell you that the machines that produce these numbers are not nearly as accurate as lawmakers would like you to believe. There are so many ways a breathalyzer can make a mistake. I have personally seen mistakes. I have spent many hours studying how these machines work (or do not work I should say). Entire DWI defense seminars are devoted to debunking the fuzzy math and mechanics that breath testing machines are based on. Sending a first time DWI offender to jail because of a breathalyzer computed BAC level is absolutely wrong.
Representative Vito Fossella, a Republican from New York City took his DWI case to trial in Alexandria, Virginia yesterday. Fossella was charged with driving with a BAC (blood alcohol content) of .17%. In VA, a person convicted of driving with a BAC in excess of .15% must serve a mandatory 5 day jail sentence. Wow! I thought New York's DWI penalties were tough. In New York, DWI offenders usually aren't looking at potential jail time until their third or fourth offense.
Tying jail time to a BAC level is absolutely nutty. As a DWI lawyer, believe me when I tell you that the machines that produce these numbers are not nearly as accurate as lawmakers would like you to believe. There are so many ways a breathalyzer can make a mistake. I have personally seen mistakes. I have spent many hours studying how these machines work (or do not work I should say). Entire DWI defense seminars are devoted to debunking the fuzzy math and mechanics that breath testing machines are based on. Sending a first time DWI offender to jail because of a breathalyzer computed BAC level is absolutely wrong.
Monday, October 6, 2008
Beware of the Dual Agency: Part 2
I had lunch today with a client who just made a half million dollar offer on a piece of property. We were joined by some of his family members and eventually the conversation turned toward the offer and potential purchase of this property. I have worked with this client on real estate deals in the past and during our luncheon conversation, I casually asked him if he would be hiring the agent he has worked with in the past to represent him on this deal. I even went as far as to say, "you didn't sign anything right?." Long story short, my client's mother-in-law commented that the seller's agent is a neighbor and life long friend of my client's wife's family. After I delivered a brief spiel about the problems inherent in dual agencies, I realized I should be polite and drop the subject.
Just now, out of curiosity I googled "dual agency" and went to the first link. Read it. The results are telling.
http://www.realestatelawyers.com/Dual-agency.cfm
Just now, out of curiosity I googled "dual agency" and went to the first link. Read it. The results are telling.
http://www.realestatelawyers.com/Dual-agency.cfm
The Lawyer Business
I'm a relatively young lawyer, but I've been out there in the trenches long enough to have learned a few things. One thing I've learned is that there are certain areas of practice that generate "volume business". To me, a volume business in the legal industry is one in which a discount price is acceptable because the hours involved in the case are fairly predictable. Some examples of volume businesses are real estate closings, traffic tickets, and DWI defense.
In my opinion, the combination of a volume business and the practice of law unfortunately works to the detriment of the Constitution, at least in the criminal defense business. Let me illustrate with a real life example. First, some background on me: Before I went solo I had the great fortunate of working with some great lawyers. Our firm's busiest practice was traffic tickets. Sometimes we would have to contract out cases because the court was too far away from our office to make traveling worth the fee. A couple of times, the boss was pretty annoyed with the contract lawyer we hired because he plead our client guilty to the charge. Why would anyone plead their client guilty to the charge? In the typical speeding ticket case you've got nothing to lose by fighting. The answer is time and money. Fighting the charge means going to trial and that requires a lot of work. And now that predictable up front fee you took does not look as profitable. And that is my problem with volume business in the legal industry. That spirit that puts client before profit is often dampened by the economic necessity to be profitable. I don't know what percentage of the traffic ticket business is contract based, but I bet it's big. And that means that a lot of traffic ticket defendants who hire lawyers will never know who their lawyer was.
I'm not sure of a lot of things, but I am sure that I know what kind of lawyer I never want to be. I never want to feel pressured to put profit before client. I read on some blog once that "there is nothing more important to a criminal defense lawyer than to have client." As goofy as it may sound, I strongly empathize with that sentiment.
In my opinion, the combination of a volume business and the practice of law unfortunately works to the detriment of the Constitution, at least in the criminal defense business. Let me illustrate with a real life example. First, some background on me: Before I went solo I had the great fortunate of working with some great lawyers. Our firm's busiest practice was traffic tickets. Sometimes we would have to contract out cases because the court was too far away from our office to make traveling worth the fee. A couple of times, the boss was pretty annoyed with the contract lawyer we hired because he plead our client guilty to the charge. Why would anyone plead their client guilty to the charge? In the typical speeding ticket case you've got nothing to lose by fighting. The answer is time and money. Fighting the charge means going to trial and that requires a lot of work. And now that predictable up front fee you took does not look as profitable. And that is my problem with volume business in the legal industry. That spirit that puts client before profit is often dampened by the economic necessity to be profitable. I don't know what percentage of the traffic ticket business is contract based, but I bet it's big. And that means that a lot of traffic ticket defendants who hire lawyers will never know who their lawyer was.
I'm not sure of a lot of things, but I am sure that I know what kind of lawyer I never want to be. I never want to feel pressured to put profit before client. I read on some blog once that "there is nothing more important to a criminal defense lawyer than to have client." As goofy as it may sound, I strongly empathize with that sentiment.
Friday, October 3, 2008
Aggravated DWI
http://timesunion.com/AspStories/story.asp?storyID=726002&TextPage=1
The Albany Times Union reported today that a 25 year-old woman from Cohoes was sentenced to 2-6 years in prison under New York's Aggravated DWI statute. There has to be more to the story because the statute, NY V&T Law 1193(2)(b)(2) says a conviction for Aggravated DWI is a misdemeanor punishable by only up to 1 year in jail. (Any misdemeanor by definition is only punishable by up to one year in jail). Given the fact that the woman was allegedly intoxicated, and apparently seriously injured two pedestrians, she was probably charged with vehicular assault, which is a felony.
The new crime of Aggravated DWI was created by the Legislature and enacted in 2006. If you produce a chemical test that is .18% or above, you can be charged with Aggravated DWI. The TU story says the woman refused "alcohol" tests. The story does not mention a BAC level which leads me to believe she refused to perform the chemical test. So I don't understand how she could have been prosecuted for Aggravated DWI without a valid chemical test in excess of .18%.
I had a client charged with Aggravated DWI recently. She blew a .18%, but the BAC Datamaster was having some problems the night she was arrested. The machine basically malfunctioned twice before my client blew a "valid sample." So we decided to fight her case. The fact that there was more than a reasonable doubt that the breath testing device was not working right made it difficult to prosecute my client under the Aggravated DWI Statute. How can you prosecute a crime that relies on an accurate BAC test when there is obviously problems with the machine? A jury could have easily been persuaded. There were also other problems with the case but I'll blog about those later.
Had I believed my client could have faced 2-6 years in prison were she convicted of Aggravated DWI, I would have negotiated a plea bargain. (especially because this girl had two fairly recent DWAIs on her record). Her case was eventually entirely dismissed by the court.
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