http://www.dailygazette.com/news/2008/nov/17/1117_seat-belt/
I am always skeptical of stories about law enforcement organizing a "county wide" or "statewide" vehicle and traffic law enforcement program. On paper, these programs profess the lofty goal of keeping the roadways safe. However, the driving public pays a price that many of us would rather avoid. That price comes in the form of unwarranted government intrusion.
When you pass through a roadblock you essentially are being stopped and searched. Generally, in order to be stopped by cop in your car, the cop has to have a legal reason, such as he or she believes you were speeding or violating the vehicle and traffic law. That is because the US and NY State Constitutions prohibit warrantless searches or searches without probable cause. In the roadblock scenario, you are forced to submit to the full scrutiny of the police under the guise of a county or statewide enforcement program.
It is essential for democracy and freedom in this country that citizens keep drawing the line against warrantless government searches. Trust me when I tell you that these days, it is a constant fight against an increasingly intrusive government.
The fact of the matter is that the publicized threat of roadblocks will not change anyone's behavior when it comes to enforcing the seatbelt law. The same way stiffer DWI penalties will not change that behavior either. Maybe you don't care about passing through roadblocks but I'll tell you what, when that overzealous cop shines a 2 foot long mag light in my face and inquires about where I am going, I get very annoyed.
Monday, November 17, 2008
Wednesday, November 12, 2008
Here you go-
Edinburg town justice charged with felony DWI
When a person has a prior DWI conviction within the past ten years and is allegedly caught driving drunk again, he or she will be charged with a felony DWI. This means Brian Kedik, the newly elected Edinburg Town Justice is a repeat DWI offender.
To get charged with the felony DWI, a person must have been convicted of VTL 1192(2), VTL 1192(3), or VTL 1192(4). VTL 1192(1) is the DWAI or "driving while ability impaired" statute. In my experience, almost everyone gets a reduction to DWAI for their first DWI offense. I have had clients with two DWAI offenses on their records. Because Mr. Kedik probably has a DWI offense on his record, he probably has previous a DWAI offense on his record as well.
Mr. Kedik was also recently charged with grand larceny.
Edinburg town justice charged with felony DWI
When a person has a prior DWI conviction within the past ten years and is allegedly caught driving drunk again, he or she will be charged with a felony DWI. This means Brian Kedik, the newly elected Edinburg Town Justice is a repeat DWI offender.
To get charged with the felony DWI, a person must have been convicted of VTL 1192(2), VTL 1192(3), or VTL 1192(4). VTL 1192(1) is the DWAI or "driving while ability impaired" statute. In my experience, almost everyone gets a reduction to DWAI for their first DWI offense. I have had clients with two DWAI offenses on their records. Because Mr. Kedik probably has a DWI offense on his record, he probably has previous a DWAI offense on his record as well.
Mr. Kedik was also recently charged with grand larceny.
Wednesday, November 5, 2008
Beat Your Ticket? Good luck.
I recently won a speeding ticket trial. Ironically, I got the decision around the same time I was explaining to a prospective client why it is nearly impossible to beat a speeding ticket case. This guy was telling me the typical story; He wasn't doing 88, hew was doing 81. There is no way the cop could have seen him over the hill. The car next to him was moving faster. There was a mistake in the paperwork. The cop was a jerk. Etc.
To all those who think they can beat their ticket listen up: Your story means nothing to the Court. The cop's story means everything. A lawyer I used to work with used to interrupt a client mid story and say "I understand what your are saying, but what is the cop going to say?"
Keep in mind, to beat your ticket you have to try your case and speeding ticket trials are easy for a prosecutor to win, at least in New York. Basically, they have to show one of two things; that the officer visually estimated the speed, or there was a reading from a radar or LIDAR (laser) device that was in working order at the time of the reading. Believe me, cops are generally prepared for trial and have done it a million times.
Back to my trial; I didn't fight the case because I had a good case. I fought the case because I couldn't get a good enough deal for my client and I had nothing to lose by fighting. How did I win? The cop testified that he did not do a visual estimate. He also testified that he used a LIDAR device to measure my client's speed. However, when asked if he had any documents showing the LIDAR had been recently calibrated, he answered no.
The prosecution argued that there is no case law saying a LIDAR device, (unlike a radar device), requires documentation that it has been recently tested for its reading to be admissible at trial. I argued that a LIDAR device is a machine like a radar gun, or breath testing device, or any other scientific instrument, which all require some proof of working order for their readings to be admissible at trial. In this case, the judge agreed with me and dismissed the case.
To all those who think they can beat their ticket listen up: Your story means nothing to the Court. The cop's story means everything. A lawyer I used to work with used to interrupt a client mid story and say "I understand what your are saying, but what is the cop going to say?"
Keep in mind, to beat your ticket you have to try your case and speeding ticket trials are easy for a prosecutor to win, at least in New York. Basically, they have to show one of two things; that the officer visually estimated the speed, or there was a reading from a radar or LIDAR (laser) device that was in working order at the time of the reading. Believe me, cops are generally prepared for trial and have done it a million times.
Back to my trial; I didn't fight the case because I had a good case. I fought the case because I couldn't get a good enough deal for my client and I had nothing to lose by fighting. How did I win? The cop testified that he did not do a visual estimate. He also testified that he used a LIDAR device to measure my client's speed. However, when asked if he had any documents showing the LIDAR had been recently calibrated, he answered no.
The prosecution argued that there is no case law saying a LIDAR device, (unlike a radar device), requires documentation that it has been recently tested for its reading to be admissible at trial. I argued that a LIDAR device is a machine like a radar gun, or breath testing device, or any other scientific instrument, which all require some proof of working order for their readings to be admissible at trial. In this case, the judge agreed with me and dismissed the case.
Marijuana Law Update
Two states passed marijuana related initiatives yesterday. From the NORML Website:
1. Michigan legalized medical marijuana.
2. Massachusetts decriminalized possession of small amounts of marijuana.
In New York, Democrats took control of the long time Republican dominated State Senate possibly easing the way for passage of a medical marijuana bill in New York.
1. Michigan legalized medical marijuana.
2. Massachusetts decriminalized possession of small amounts of marijuana.
In New York, Democrats took control of the long time Republican dominated State Senate possibly easing the way for passage of a medical marijuana bill in New York.
Sunday, November 2, 2008
The Automobile Exception: But I didn't know there was pot in the car!
One story I often hear as a marijuana lawyer is that "There was weed in the car but my friend told the cops it was all his and they are still charging me. Can they do that? It wasn't mine!" The answer is, maybe not anymore in New York.
Pursuant to NY PL §220.25 (1), if a person is in a car and the police find a controlled substance that is not concealed on a particular person, but located somewhere in the car, everybody in the car owns it. This rule is referred to as constructive possession, or the automobile presumption.
In a decision dated October 23, 2008, the State of New York Supreme Court, Appellate Division, 3rd Dept. published an opinion ruling that the automobile presumption does not apply to marijuana. see People v. Dan http://decisions.courts.state.ny.us/ad3/Decisions/2008/100515.pdf Their decision was based on a reading of the plain language of the applicable statutes and an application of what lawyers call statutory construction.
When an argument exists about the meaning of a law, courts try to determine what the legislators intended when they wrote the law. If you look at the section of New York's penal law regarding controlled substance offenses you will see a list of definitions, the purpose of which is to specifically define the meaning of the words used in the statutes in that section. So when lawyers and judges try to interpret the meaning of a statute in a particular section of law, they refer to the definitions in the that list, not a dictionary.
NY PL Art. 220 defines controlled substances and marijuana separately. In this case, Dan's lawyer argued that because the automobile exception statute only uses the words controlled substance, and never mentions the word marijuana, the automobile exception applies only to controlled substances. And since marijuana and controlled substances are defined separately in the statute, marijuana is not a controlled substance for the purpose of the automobile exception statute.
The People can appeal this decision and the NY Court of Appeals may have the final say about this issue. I'll keep you posted.
Pursuant to NY PL §220.25 (1), if a person is in a car and the police find a controlled substance that is not concealed on a particular person, but located somewhere in the car, everybody in the car owns it. This rule is referred to as constructive possession, or the automobile presumption.
In a decision dated October 23, 2008, the State of New York Supreme Court, Appellate Division, 3rd Dept. published an opinion ruling that the automobile presumption does not apply to marijuana. see People v. Dan http://decisions.courts.state.ny.us/ad3/Decisions/2008/100515.pdf Their decision was based on a reading of the plain language of the applicable statutes and an application of what lawyers call statutory construction.
When an argument exists about the meaning of a law, courts try to determine what the legislators intended when they wrote the law. If you look at the section of New York's penal law regarding controlled substance offenses you will see a list of definitions, the purpose of which is to specifically define the meaning of the words used in the statutes in that section. So when lawyers and judges try to interpret the meaning of a statute in a particular section of law, they refer to the definitions in the that list, not a dictionary.
NY PL Art. 220 defines controlled substances and marijuana separately. In this case, Dan's lawyer argued that because the automobile exception statute only uses the words controlled substance, and never mentions the word marijuana, the automobile exception applies only to controlled substances. And since marijuana and controlled substances are defined separately in the statute, marijuana is not a controlled substance for the purpose of the automobile exception statute.
The People can appeal this decision and the NY Court of Appeals may have the final say about this issue. I'll keep you posted.
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