Dennis Drue Pleads Guilty: A DWI Lawyer's Perspective

For those who are not familiar with this story,  23 year old Dennis Drue was accused of causing an accident on the Northway that took the lives of two local high school students.  And to make matters worse, he was accused of driving while his ability was impaired by the consumption of alcohol and marijuana. His horrible prior driving record was published in the papers, as well as his criminal convictions for marijuana possession. Today, people are celebrating his guilty plea to 58 charges.  And some are furious that the deal only calls for 5 to 15 years of prison. The death penalty would not even be good enough for some. In fact, some folks are time traveling in an attempt to keep Drue from ever existing, because they believe he is an evil monster. Such is the hysteria of DWI. 

Read the first sentence above again. He was accused of causing an accident. Whatever the cause, it was an accident.  Accidents happen whether one is sober, stoned, or drunk.  But if you drink and drive, or drive while you have cannabis in your system, you should know that you can’t drive safely right?  I say wrong, or at least I am not totally convinced.  And that is where I find the motivation to practice an area of law that for some folks, is evil.  It may be even the work of the devil. 

The fact is, for the witch hunter mentality types out there, anyone accused of drunk or drugged driving, must be guilty. And alcohol and drug related accident cases are especially evil for many folks. That is a reality that criminal defense lawyers have to face when trying DWI cases. And Dennis Drue most likely would never been able to get the right jury, due to the heavy media coverage in the Saratoga area, and our small population. A similarly heavily covered case would be the Porco murder. And he got a change of venue.

By the right jury, I mean finding a juror that truly understands, and has the capacity to embrace the concept of the presumption of innocence, or a juror that can wrap their head around the concept of reasonable doubt.  A juror not tainted by exposure to the Drue story.  I live, work, and breathe in Saratoga County and I don’t  know a single friend, neighbor, colleague, etc., that does not know about this case. These juror qualities are required by the Constitution. Drue move for a change of venue, and lost.   

Herein lies the biggest problem with DWI laws; and they become significantly more substantial in a case like Drue’s. We have yet to be able to figure out a system that proves, with reliable and scientific accuracy, at what point someone becomes an unsafe driver due to alcohol or drugs.  But, we have established levels at which a driver is assumed to be unsafe per se.  It does not matter who you are.  Regardless of your age, your health or, your level of tolerance. In NY and in most states, if you blow an .08  you are guilty.  It doesn’t matter that body temperature, certain ailments, mouth alcohol, machine calibration, etc., can drastically affect your BAC as determined by a breath or blood test machine. That number is the number. And even in the face of evidence of sobriety, if a jury believes in that number, the defendant is guilty.

 But we can’t let people get away with these alcohol or drugged driving crimes, so we make an (un)educated guess about what drunk or high is, and that guess is close enough.  Is close enough good for Dennis Drue, who was facing up to 25 years in prison if found guilty at trial?  Would close enough be good enough for your brother, your daughter, or your friend?  One of the reasons the Drue case has been sensational is because his BAC was less than .08%.  The magic number was not there.  He also had marijuana metabolites in his system, but we don’t know if they were metabolites that are actually psychoactive, or just remnants that actually have been proven to not cause any impairment or dysfunction. 

I don’t blame Drue for taking the deal. He had a great deal to lose.  But I am disappointed the trial is off.  My office is right down the street from the Courthouse in Saratoga and I was looking forward to observing.  Especially the expert witness testimony, because experts for the defense are so rare in DWI cases. And I assumed with Steve Coffey for the defense and everything, they would have the money to spend on real experts. Experts are common for the government though, they are called police officers.  In your average DWI trial, there is no requirement that the DA explain any of the science to the jury that assumptions are built upon. The cop is the straw man for science on the stand.  The court has taken judicial notice of the validity of Field Sobriety Testing and breath test technology because it is accurate beyond question, or at least, it is close enough for government work. 

I hope the families of the kids that died can find some kind of peace.

The Shotguns Are Next

In the wake of the recent tragedy in Herkimer and Mohawk, the Governor and his minions are quickly drafting new laws to place new restrictions on the sale of shotguns.  You won't hear about the legislation until it is signed in to law because, after all,  this is an emergency.  A Message of Neccesity will be required to pass the laws in darkness, and to avoid further gun violence. Nobody will care that the bill was passed without input from the public.

Of course I am joking (at least I hope). I really am becoming increasingly angry about the absolute disingenuous efforts of the State to impose on a fundamental constitutional right of the people to possess guns under the guise of protecting the public.  It is such an obvious smoke screen.  If anyone believes the NY SAFE act will save lives,  I hope the tragedy in Herkimer has opened your eyes to reality. Mr. Myer's did not have an AR 15.  He had a shotgun.  And from what my gun nut friends tell me, the shotgun can often be the deadliest of weapons. Shotguns do not exactly make the neatest of holes in a human body.

The time has come to end the useless political circus tricks and focus on the needs of our mentally ill citizens.How many times do we have to tell you? Those of us who work within the criminal justice system have a proactive solution that may actually produce results without creating a new class of criminals (via new gun laws and infringing on our rights).  The gun violence problem does not lie with the guns. It lies the freaking lunatics who decide they want to hurt people.  We have a giant class of citizens with mental health issues that are completely ignored. 

A large majority of my clients have mental health problems.  Their cases generally get resolved by getting a dismissal  or plea bargain in return for the client taking responsibly for their actions, and getting some medical help and treatment. The biggest challenge I often face with mentally ill clients is finding a place for them to get help.  Most of these folks don't have insurance and don't qualify for Medicaid for some reason.


There are so man sick people out there who need help and have nowhere to turn.  For example,  I have a seriously addicted heroin addict client who truly wants to get treatment.  He has no insurance and he is either turned away by free clinics, or told to come back in two weeks and in the meantime, of course he uses.  I really think he is going to die.

Instead of spending god knows how much enforcing gun laws and the associated prosecutions,  why don't we spend that money on helping the sick people who are the root of the problem.  I hate typing in caps but I am going to do it right now.

IT IS ABSOLUTELY LUDICROUS AND RIDICULOUS THAT ANY AMERICAN, WHO IS SUFFERING FROM DRUG ADDICTION OR MENTAL ILLNESS, DOES NOT HAVE A PLACE TO GO WHERE THEY CAN GET IMMEDIATE TREATMENT AND NOT HAVE TO WORRY ABOUT PAYING.

It is that simple. We need free mental health care, an open door in every city and town. Walk in and get help and not worry about the money.

New York Traffic Ticket Lawyer News- Bye bye 1201(a)

http://www.timesunion.com/local/article/Speeding-ticket-plea-plan-on-fast-track-4215507.php

Oh boy. Here we go again.  Another mis-informed disingenuous attempt by the Governor to protect us from harm.  Let's limit the clip to 7 bullets. It will save lives.  Now let's tell prosecutors what they can and can't do in traffic ticket cases.

The Governor is right about one thing.  The so called "parking ticket" (New York Vehicle and Traffic Law Section 1201(a)) is a common reduction for speeding tickets.  The defendant agrees to the reduction instead of going to trial. It is called a plea bargain.  It is true that the 1201(a) does not appear on a driving record so presumably, someone could have been ticketed several times and a prosecutor would not know it if the defendant was able to get parking tickets. (I have several clients like this).  But what the Governor does not understand like us lowly trench lawyers do, is that the parking ticket reduction is generally limited to speeds that are low.  It is very difficult to get a parking ticket if a speed exceeds 20 mph over the limit.  And if the client does have a speed on his or her record, even harder.  Maybe 20 mph over sounds fast to some but if you drive on the Northway, your choice is to speed, or get out of the way and pray you are not rear ended. I seriously wonder at times what is more dangerous, driving the speed limit, or trying not to get plowed over on the highway. Go ahead and try driving the speed limit on the highway in moderate traffic. There is nothing scarier than a car inches from your rear bumper traveling at 65 mph.

There is a general belief that cops write tickets to raise local revenue.  As discussed in the TU article,  the parking ticket fines stay with the locality.  The fine money for all other offense goes to the State.  The State also collects a tax called a surcharge on every conviction for anything other than a parking offense. 

I say the Governor is being a bit disingenuous with this proposal because he says it is matter of public safety.  What better way to get support for a measure than say it will save lives. Safe driving is a matter of personal choice and disposition. Personally,  I witness maniacs driving on the roads everyday including my own friends and family. Recently, it was revealed that a local kid who allegedly ran a car of the road killing two high school students, was able to maintain his license while receiving many speeding tickets over the years.  His record, even without any parking ticket reductions was horrible, yet he managed to plea bargain most of his tickets. Nothing in the Governor's proposal would have stopped  that guy from driving like a crazy person the night of the accident.


Finally, Governor Cuomo please do not overlook the fact that people do hire lawyers for traffic tickets. We are out here.  If your proposal succeeds,  it will result in more trials.  And we love trying traffic cases. Do not eliminate that cost from your equation. Trials are very expensive for localities.  Especially the overtime that the police get paid to show up and testify. I guess I should thank the Governor for his proposal.  If it survives, some people may require my services who may not have in the past. Keep making more new laws. It is great for business.

Constitutional Hero of the Day #1

In this video,  Albany County Sheriff Deputy Stan Lenic stands up for the rights of activists handing out flyers instructing people about the right to opt out of the TSA full body scan at Albany International Airport.


Wow Albany Sheriff's Dept.!  Way to go.  I am very impressed. Who would have thought an Albany County Sheriff deputy would ever handle himself so well.  No offense,  but most deputies use the act first and think later method around here, and probably everywhere. Nine times out of ten this conflict would have ended with an arrest, (via a disorderly conduct, obstructing government administration, resisting arrest kind of thing).  But clearly Deputy Lenic is not a coward. And he had the nuts to stand up to the incredibly intimidating Albany International Airport Authority Public Relations Officer Doug Meyers.

What really cracks me up about this video was how pissed off Doug Meyers was at Deputy Lenic for not bending over for him. I love the part where he instructs Lenic to check ID and Lenic say's no. It looks like Meyers actually winks at Lenic when he says to check ID. I bet Meyers thought this was how to get rid of the activists.  If they dared to argue with the request for ID, then Lenic would have to arrest.  But Lenic is not taking orders from Meyers and he knows the law pretty well.  His logic is simple. They are not breaking any law and have the right to go about their business.  (Sadly, I actually think Lenic got the law wrong here.  In New York, the police have the right to request identification from anyone as long as there as an articulable (what?) basis to do so.  I could think of all kinds of reasons that most Judges would accept as legitimate to request ID in this situation, but I'm not a prosecutor so I won't).

The extraordinary thiong about this police citizen encounter is but for Deputy Lenic's constitutional heroics, situations like this rarely work out in favor of the activist. I would really like to believe that police everywhere defend the constitution like Deputy Lenic everyday,  but I doubt it.  Call me cynical.

ACOD in New York is not as good as it sounds

I have discussed the ACOD, (adjournment in contemplation of dismissal), a few times in the past on this blog but I believe it was mostly in the context of marijuana offenses.  You can read them here, here, and here.  The procedure for a marijuana related ACOD is codified in New Criminal Procedure Law at section 170.56.

The ACOD is also available to dispose of offenses other than marijuana as well.  Everything from other controlled substance offenses (cocaine, crack, mushrooms, etc.) to assaults and sex crimes can also be dismissed by an ACOD. This procedure can be found at NY CPL Section 170.55.  The difference between a marijuana ACOD and a non-marijuana ACOD under 170.55 is that the consent of the District Attorney (DA) is required for a non-marijuana related ACOD.  Marijuana cases can be dismissed by an ACOD at the discretion of the judge,  even if the DA opposes it. (However, the reality in most courts is that the judge will defer heavily to the opinion of the DA).

I am beginning to see a problem with the ACOD and the public's perception of what it actually means.  Most people believe that an ACOD means that the charge(s) will be sealed and expunged as if they never happened.  Indeed, when the Legislature created the ACOD statute it did so with the intent that the potentially severe damages and adverse consequences to a person's reputation and future employment prospects would be prevented by an ACOD. (There are a few statutory exceptions with regard to who can see information with regard to a case that was dismissed by an  ACOD including any potential employer of a police officer and the military).

Sadly, the system is not working as the State intended it to.  The ACOD is fine for people who are charged with an appearance ticket and there is no arrest and processing, but for those who are arrested, a criminal background check reveals that they were arrested, even when the case is dismissed by an ACOD. Non-criminal violations like UPM or Disorderly Conduct, when there is no arrest, do not appear on criminal background checks (at least I have not seen any yet).  So what good is an ACOD if a potential employer can see that a person was arrested in the past?  Explaining to the employer that an ACOD is not a conviction or an admission of guilt (which is what the law says) does not help that person who is being denied a job because of a previous arrest.

The only truly reliable way to make an arrest and prosecution go away "as if it never happened" is either an outright dismissal or acquittal at trial.  So if a person is truly concerned about making sure information related to a criminal case is truly "sealed" from public view, he or she may have no option other than to fight the charges.  And these days, with the internet and police blotters being published online, almost every arrest is publicized so even a dismissal will not remove the tarnish to reputation. A Google search of a person's name will provide links to police blotters published in local papers.