I have all kinds of trouble with DWI laws. For starters they are based on bad science. Secondly they are arbitrary. I have driven behind someone who blew a .24 on a breath test and then drove for an hour better than the so called sober people in Nassau and Queens County. I have a problem with any numeric crime based on faulty science determining if someone ought to be arrested without that person doing something wrong. (We are talking about checkpoint arrests where the only "crime" is the the breath test reading). I get tired of the "bleed em and plead em" mentality of much of the bar and the entire DA's office. I hate how DWIs have destroyed the Fourth Amendment and the laws of Evidence. Mostly I hate how it destroys people who are convicted of the crime. It is what I call "stupid crime" as there is absolutely no upside to it.
Nevertheless, it is New Year Eve. Every cop on Long Island is looking to make DWI arrests. By now you ought to know that if you are one hundred and fifty (150lbs.) pounds, you are impaired by alcohol after 2.5 drinks in 2 hours. Please tell me how you get arrested for DWI? You really have to be clueless.
In a number of these cases, people were killed or badly maimed. How hard is this really? If you are drinking, Don't Drive!! Find a designated driver, take a cab or a limo. Take Mass Transit. Stay HOME!!
Amateurs. Really.
Hattip: Newsday (subscription may be required)
Showing posts with label DWI. Show all posts
Showing posts with label DWI. Show all posts
Thursday, January 02, 2014
Tuesday, December 31, 2013
Bad Cases Make Bad Laws: NYS Ct of Appeals Sustains the Martin Heigden Verdict
It was brought to my attention that one of my previous posts, where I predicted the Martin Heigden verdict convicting him of Murder (depraved indifference) would be overturned, in fact was NOT overturned. I was wrong about justice being done in the case. I am late acknowledging it but I did want to up date the information.
The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.
The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.
As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.
The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.
The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.
As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.
Hat tip: @ericfphillips on Twitter.com
Thursday, July 15, 2010
Should Lindsey Lohan Go To Jail? Why This Celebrity Means Something To You.
There is a debate raging over at my favorite blog the ABA News today over what should happen to "poor little Lindsey Lohan". For the uninitiated, She has been in two drug related DWI's she has completely destroyed her probations and she has been sentenced to 90 days in jail and rehab. She then fired her attorney (yes it must be their fault that you are a F.U. and need to be ib jail the way fish need to be in water)and demands that she get a "pro bono" lawyer. Her rep said she had already paid for two lawyers and now the government should pay.
She is pathetic but aside from that, should Lindsey go to jail and for how long. You may be wondering why I care. I suggest to you that we should all care. Not only about Lohan, but Gibson, and Spears and a number of other A-list stars who while the tabloids make them fodder, corrupt our corrections and criminal justice systems.
Hat tip: ABA New Now
Look, in our system, “punishment is not meant to fit the crime” it is meant to fit the criminal. Despite the BS from “victim advocates” Corrections is about correcting. It costs us way too much money to incarcerate people who do bad things but whom we can handle in other ways.
I get really frustrated every time I hear a crime victim cry out for jail time. You want jail time, you pay for it. I only want jail when it is needed to get the person back into life and being a productive tax paying entity. I don't like crime and I feel bad for victims but not at the expense of my family and yours. Restitution and knowing that the perpetrator is being addressed so as to reduce the chance someone else will suffer, is all that a criminal justice system owes to the victim. If they want more, they can avail themselves of the civil Justice system. The Criminal Justice system owes me and you however a corrected and useful member of society. A person who can carry their own weight without again becoming part of the system again. It owes us some semblance of safety as well. Lohan is not a mass murderer, though she has been lucky not to take a life. If we incarcerate her without getting her help, she just comes out an older addict just as likely to re-offend and kill or maim someone. Hence Jail for Jail’s sake is a waste of my tax money and everyone's time. I abhor such waste especially by government.
Lohan is not just a person, she is a product. Just like Mel Gibson and Britney. Because of them, many people have jobs. Many more will have jobs and those people pay taxes and help an economy that we all rely on. Staff, record company employees, ticket takers and pop corn salesmen, people who clean up stadiums and offices, parking attendants, all have jobs because of people like these. So do the folks who feed these other people (like the lawyers who serve those people) (not the stars but the help staffs and others)need them working. Who gets really screwed in a baseball strike? The vendors and the fans. The superstars come out just fine. It is very much a butterfly effect. We need to remember this
I suggest more jail is needed for Lohan, not because I want to see her in jail, but because she is an addict and has an addict’s view of the world that needs to be addressed before she can begin to become productive. Until she is brought to bottom, she will not be receptive to the help available to her. She still see’s it as being all about poor little Lindsey. When it becomes about “look what I am doing to all those that depend on me, all those who believe in me, my fans family (as it is constituted) etc, that is when she will begin to be ready to get the help she needs.
She is pathetic but aside from that, should Lindsey go to jail and for how long. You may be wondering why I care. I suggest to you that we should all care. Not only about Lohan, but Gibson, and Spears and a number of other A-list stars who while the tabloids make them fodder, corrupt our corrections and criminal justice systems.
Hat tip: ABA New Now
Look, in our system, “punishment is not meant to fit the crime” it is meant to fit the criminal. Despite the BS from “victim advocates” Corrections is about correcting. It costs us way too much money to incarcerate people who do bad things but whom we can handle in other ways.
I get really frustrated every time I hear a crime victim cry out for jail time. You want jail time, you pay for it. I only want jail when it is needed to get the person back into life and being a productive tax paying entity. I don't like crime and I feel bad for victims but not at the expense of my family and yours. Restitution and knowing that the perpetrator is being addressed so as to reduce the chance someone else will suffer, is all that a criminal justice system owes to the victim. If they want more, they can avail themselves of the civil Justice system. The Criminal Justice system owes me and you however a corrected and useful member of society. A person who can carry their own weight without again becoming part of the system again. It owes us some semblance of safety as well. Lohan is not a mass murderer, though she has been lucky not to take a life. If we incarcerate her without getting her help, she just comes out an older addict just as likely to re-offend and kill or maim someone. Hence Jail for Jail’s sake is a waste of my tax money and everyone's time. I abhor such waste especially by government.
Lohan is not just a person, she is a product. Just like Mel Gibson and Britney. Because of them, many people have jobs. Many more will have jobs and those people pay taxes and help an economy that we all rely on. Staff, record company employees, ticket takers and pop corn salesmen, people who clean up stadiums and offices, parking attendants, all have jobs because of people like these. So do the folks who feed these other people (like the lawyers who serve those people) (not the stars but the help staffs and others)need them working. Who gets really screwed in a baseball strike? The vendors and the fans. The superstars come out just fine. It is very much a butterfly effect. We need to remember this
I suggest more jail is needed for Lohan, not because I want to see her in jail, but because she is an addict and has an addict’s view of the world that needs to be addressed before she can begin to become productive. Until she is brought to bottom, she will not be receptive to the help available to her. She still see’s it as being all about poor little Lindsey. When it becomes about “look what I am doing to all those that depend on me, all those who believe in me, my fans family (as it is constituted) etc, that is when she will begin to be ready to get the help she needs.
Sunday, June 07, 2009
Facebook and DWI: A Defense Attorney's Nightmare.
Chicago IL. Criminal Defense Attorney Steve Komie is doing a bang up job in the case of an 18 year old who was allegedly drunk and killed a motorcyclist. Unfortunately the woman, now 20 can't get out of her own way long enough to help him out.
Komie has proved that Town of South Elgin Police destroyed the blood test prosecutors hoped would prove Erika Scoliere was drunk when she collided with motorcyclist Frank Ferraro. Without the test and sample, the defense cannot test the blood nor can it test the accuracy of the test at trial. That any evidence in an on going case is destroyed is a mystery, that the "best evidence" against a murder suspect is destroyed, right before trial, should lead potential jurors to wonder if the test actually showed ANY proof of alcohol at all.
The lead story in the news Friday should have been about how police malfeasance is causing Scoliere to get less than a fair trial. BUT NO!!
Seems that Scoliere or one of her inane "friends" posted asinine pictures of her on Facebook guzzling Tequila at a college party(in violation of her terms of release.)
Now first off, how did this young woman GET INTO a college to begin with? I mean what kind of brain damage do you have to have to realize that you killed someone and people are not happy with you? Prosecutors are looking for a reason, ANY REASON to convict you, and you decide it is a good idea to be in a place known for alcohol and stupid decisions (sorry Frat parties are Frat parties)?
Secondly, you are out on bail with an order to "call in" to probation while you are allowed to attend your "out of state" private college and go on vacations with your family. How do you "misunderstand" that Court Order?? ( I have to ask though why no one from probation notified Komie that his client was missing calls.)
The damage here is not that Scoliere now must wear a SCRAM (Secure Continuous Remote Alcohol Monitor.) It is that instead of being viewed as the victim of police, and a rush to judgment by an angry and hostile prosecution, she is seen as a ditzy, spoiled, bratty kid who needs to be taken down. She is the poster child for the over-indulged college student. She pushed the story of the lost evidence off of the headline and reinforced her image of being the "Paris Hilton" of Kane County. (Piece of unsolicited advice for Steve Komie, you may need to hire this client a PR consultant with a brain.)
We are now in the days of everyone, friends and foes, being able to record every waking moment of our lives. It is time to get smart. Ms. Scoliere's parents need to smarten up too. Get her into the house and keep her there until her trial takes place. How about considering placement into a rehab? It doesn't matter how unhappy she is. Drive her to Mr. Ferraro's cemetery plot every day, and remind her how unhappy his family must be. Have her leave a flower on the grave, a stone on his tombstone, and a prayer for his and her soul.
To my friend and colleague Steve Komie: Keep up the good work. You have a tough client there, but you represent all of us when you work to keep the government honest. Good Luck.
Hattip Avvo Legal News
Hey guys next time dig a little deeper, your article missed the "real story" the one about the Police destroying evidence!!
Komie has proved that Town of South Elgin Police destroyed the blood test prosecutors hoped would prove Erika Scoliere was drunk when she collided with motorcyclist Frank Ferraro. Without the test and sample, the defense cannot test the blood nor can it test the accuracy of the test at trial. That any evidence in an on going case is destroyed is a mystery, that the "best evidence" against a murder suspect is destroyed, right before trial, should lead potential jurors to wonder if the test actually showed ANY proof of alcohol at all.
The lead story in the news Friday should have been about how police malfeasance is causing Scoliere to get less than a fair trial. BUT NO!!
Seems that Scoliere or one of her inane "friends" posted asinine pictures of her on Facebook guzzling Tequila at a college party(in violation of her terms of release.)
Now first off, how did this young woman GET INTO a college to begin with? I mean what kind of brain damage do you have to have to realize that you killed someone and people are not happy with you? Prosecutors are looking for a reason, ANY REASON to convict you, and you decide it is a good idea to be in a place known for alcohol and stupid decisions (sorry Frat parties are Frat parties)?
Secondly, you are out on bail with an order to "call in" to probation while you are allowed to attend your "out of state" private college and go on vacations with your family. How do you "misunderstand" that Court Order?? ( I have to ask though why no one from probation notified Komie that his client was missing calls.)
The damage here is not that Scoliere now must wear a SCRAM (Secure Continuous Remote Alcohol Monitor.) It is that instead of being viewed as the victim of police, and a rush to judgment by an angry and hostile prosecution, she is seen as a ditzy, spoiled, bratty kid who needs to be taken down. She is the poster child for the over-indulged college student. She pushed the story of the lost evidence off of the headline and reinforced her image of being the "Paris Hilton" of Kane County. (Piece of unsolicited advice for Steve Komie, you may need to hire this client a PR consultant with a brain.)
We are now in the days of everyone, friends and foes, being able to record every waking moment of our lives. It is time to get smart. Ms. Scoliere's parents need to smarten up too. Get her into the house and keep her there until her trial takes place. How about considering placement into a rehab? It doesn't matter how unhappy she is. Drive her to Mr. Ferraro's cemetery plot every day, and remind her how unhappy his family must be. Have her leave a flower on the grave, a stone on his tombstone, and a prayer for his and her soul.
To my friend and colleague Steve Komie: Keep up the good work. You have a tough client there, but you represent all of us when you work to keep the government honest. Good Luck.
Hattip Avvo Legal News
Hey guys next time dig a little deeper, your article missed the "real story" the one about the Police destroying evidence!!
Wednesday, December 31, 2008
Free Ride Home For HS Students IN SYOSSET-WOODBURY, PLAINVIEW/OLD BETHPAGE , or JERICHO SCHOOLS Stranded on New Year's Eve: NO DWI'S TONIGHT!!
This New Year's Eve I am offering any High School Student at any High School located in the Plainview/Old Bethpage, Syosset-Woodbury or Jericho-Brookville School Districts, a free ride home from a party, bar or Train Station (Hicksville or Syosset stations) in those school district boundries, if:
1. You are too drunk to drive home
of
2. You do not have a safe ride home because the person driving You is intoxicated.
For a driver under 21 on Long Island that means if you had more than 1 drink and you are 100lbs or 2 drinks and are 150lbs or 3 drinks and 200lbs YOU ARE NOT SAFE TO DRIVE!!!
All you have to do is call 516-741-3400 and request a ride. The service will be provided between 11PM tonight December 31 2008 and 7AM January 1st 2009.
Doesn't matter if the intoxication is by drugs or alcohol. NO QUESTIONS ASKED. I will even arrange to have your car brought to your home the next day!!
That is right, if you have no way to safely and legally get home I will either pick you up, or have a car service pick you up, on my tab, and Drive You HOME.
No one needs to be arrested tonight. No High School parent needs to call me in the middle of the night to tell me that his or her son or daughter is lying in a hospital, or sitting in a cell because of a driving while intoxicated issue in the Syosset-Woodbury, Plainview or Jericho-Brookville school districts on Long Island. All rides are courtesy of:
The Law Offices of Anthony J. Colleluori & Associates, PLLC
180 Froehlich Farm Blvd.
Woodbury, NY 11797
1. You are too drunk to drive home
of
2. You do not have a safe ride home because the person driving You is intoxicated.
For a driver under 21 on Long Island that means if you had more than 1 drink and you are 100lbs or 2 drinks and are 150lbs or 3 drinks and 200lbs YOU ARE NOT SAFE TO DRIVE!!!
All you have to do is call 516-741-3400 and request a ride. The service will be provided between 11PM tonight December 31 2008 and 7AM January 1st 2009.
Doesn't matter if the intoxication is by drugs or alcohol. NO QUESTIONS ASKED. I will even arrange to have your car brought to your home the next day!!
That is right, if you have no way to safely and legally get home I will either pick you up, or have a car service pick you up, on my tab, and Drive You HOME.
No one needs to be arrested tonight. No High School parent needs to call me in the middle of the night to tell me that his or her son or daughter is lying in a hospital, or sitting in a cell because of a driving while intoxicated issue in the Syosset-Woodbury, Plainview or Jericho-Brookville school districts on Long Island. All rides are courtesy of:
The Law Offices of Anthony J. Colleluori & Associates, PLLC
180 Froehlich Farm Blvd.
Woodbury, NY 11797
Sunday, December 21, 2008
Around the Blogosphere the Week of 12/14/08-12/20/08: Part III- In and Around NY and Long Island
IN part III of this trip around the Blogosphere I found myself looking at some of the things happening in legal life around "here." ("Here" is Long Island and the five boroughs of NYC)
1. In the News on Long Island; Freaky Driving stories:
A. From Newsday (off twitter feed): A Long Island woman jumps from a moving SUV because the driver didn't want to take her to a bar. He wanted to eat dinner. She died. I heard of dying for a drink, but this one is ridiculous.
B. Also from Newsday Suffolk County Cops taze a 62 year old driver who is experiencing bleeding on the brain. He refused to follow orders of cops, they pull him over, he won't get out of car, they taze him, have to then take him to the hospital and wind up saving his life... Now that is making Lemonade from lemons.
2. The Agitator has this post on the indictment of a NYC Police Officer who attacked a guy on a bike, then arrested the guy for running into him!! The officer probably would have succeeded in getting the bicyclist busted on Felony charges had there not been somebody there with a camera phone taking a movie of the incident. The camera man gave his recording to reporters and the cop is now the first cop to be indicted for "Testilying" in as long as I can remember. Radley of course uses the indictment as a teaching opportunity. He scolds Pennsylvania prosecutors for using an old privacy law to allow cops to prosecute people who take photos of them while they "fail" to do their jobs.
3.NYS Governor David Patterson will be appointing a new Jr. Senator from NY to replace Hillary Clinton if she becomes the new Secy of State. So far we have Caroline Kennedy and Fran "The Nanny" Dresher. I would love to throw my hat in the ring too, as it seems the only qualification you need is that you have no qualification...
Ok you have to be at least Thirty years old.
Anyway, Kennedy is campaigning for the job (Dresher was on Larry King but she has a snowball chance in hell of getting the job unless she runs for it and gets a voice coach) Now here is the thing
In this story Caroline says she is a "Clinton Democrat". Now that does nothing for me but assuming it does something for a democrat, How can she call herself a Clinton Democrat when she supported Barack Obama against Clinton for President??? (Maybe Caroline is more qualified for the US Senate than we think, she clearly already knows doublespeak.)
Then I notice her voting record in general elections is "spotty". That means sometimes she doesn't chose to vote. Now while it is popular to say that it is everyone's duty to vote, I for one do not agree. I refuse to vote when I think that I am voting for the lesser of two evils. That is usually how I feel when I vote for President and sometimes Governor but at least there are lesser offices I might care about. I also do not vote when I don't know anything about the candidates or their opinions. I see nothing wrong with that. (About not voting, not knowing positions is a different post entirely, sometimes that is not my fault.)
Ms. Kennedy-Schlossberg is not unqualified to be a Senator from NY because she has missed votes, nor because she has never held nor run for public office. She is unqualified because she knows nothing of the needs of New Yorkers and we do not need another celebrity senator coming from this state when there are a number of people who do know what they are talking about and what to do about the issues. Unfortunately none of them are even in Congress right now.
Finally there is this interesting choice for US Senator, one that the Governor should really think about, one who has served our state very well over the last 20+ years and who is well aware of the needs of the people of our state. I think Eric Turkewitz of New York Personal Injury Attorney Blog is on to something when he recommends Chief Judge Judith Kaye who retire in 2 weeks to be our new Junior Senator. The only qualm I have with Eric's post is that he compares Ms. Kennedy with Pres. G.W. Bush. I am sorry Eric, there is no comparison. Caroline was an excellent student and a very good child. She has always been thoughtful and concerned about others while she guarded her privacy. Comparing her to Bush is like comparing the Pope to Saddam Hussein. Still I think Judge Kaye would make a great democrat possibility for US Senate.
4. Finally, The New York State Bar Association has a general Practice committee. It has a blog. The blog written by Leonard Sienko has a lot of important stuff on it. You don't have to be a member of the State Bar to read the Blog. So READ THE BLOG!!
Two important posts:
A. NY has finally adopted the Model Rules for Professional Conduct. It goes into effect in March 2009. I will be blogging on that I imagine a lot in the next few months.
and
B. The IRS is willing to help struggling homeowners refi and sell their homes by allowing Federal Tax liens to take a secondary position to some mortgages. It's a start anyway.
5. Over at the Divorce hotline, Janine Barbera (aka MatMaven) has a post about the way some judges just lord over a court, forgetting the people that use the court are not there to serve them so much as to be served by them. The post is short on facts but that is fair, Janine wants to be able to continue to practice law. Besides if any judge she appeared before in the last couple of days sees himself, then he should CHANGE HIS WAYS!!!
Q: In the meantime here is a quiz... What is the shortest time span known to man??
A: The period of time it takes for a newly minted judge to forget he was ever a practicing lawyer...
Ok that is a generalization, but sadly it is true way too often. Maybe it is something they should address in judge's school.
OK so much for Part III.
1. In the News on Long Island; Freaky Driving stories:
A. From Newsday (off twitter feed): A Long Island woman jumps from a moving SUV because the driver didn't want to take her to a bar. He wanted to eat dinner. She died. I heard of dying for a drink, but this one is ridiculous.
B. Also from Newsday Suffolk County Cops taze a 62 year old driver who is experiencing bleeding on the brain. He refused to follow orders of cops, they pull him over, he won't get out of car, they taze him, have to then take him to the hospital and wind up saving his life... Now that is making Lemonade from lemons.
2. The Agitator has this post on the indictment of a NYC Police Officer who attacked a guy on a bike, then arrested the guy for running into him!! The officer probably would have succeeded in getting the bicyclist busted on Felony charges had there not been somebody there with a camera phone taking a movie of the incident. The camera man gave his recording to reporters and the cop is now the first cop to be indicted for "Testilying" in as long as I can remember. Radley of course uses the indictment as a teaching opportunity. He scolds Pennsylvania prosecutors for using an old privacy law to allow cops to prosecute people who take photos of them while they "fail" to do their jobs.
3.NYS Governor David Patterson will be appointing a new Jr. Senator from NY to replace Hillary Clinton if she becomes the new Secy of State. So far we have Caroline Kennedy and Fran "The Nanny" Dresher. I would love to throw my hat in the ring too, as it seems the only qualification you need is that you have no qualification...
Ok you have to be at least Thirty years old.
Anyway, Kennedy is campaigning for the job (Dresher was on Larry King but she has a snowball chance in hell of getting the job unless she runs for it and gets a voice coach) Now here is the thing
In this story Caroline says she is a "Clinton Democrat". Now that does nothing for me but assuming it does something for a democrat, How can she call herself a Clinton Democrat when she supported Barack Obama against Clinton for President??? (Maybe Caroline is more qualified for the US Senate than we think, she clearly already knows doublespeak.)
Then I notice her voting record in general elections is "spotty". That means sometimes she doesn't chose to vote. Now while it is popular to say that it is everyone's duty to vote, I for one do not agree. I refuse to vote when I think that I am voting for the lesser of two evils. That is usually how I feel when I vote for President and sometimes Governor but at least there are lesser offices I might care about. I also do not vote when I don't know anything about the candidates or their opinions. I see nothing wrong with that. (About not voting, not knowing positions is a different post entirely, sometimes that is not my fault.)
Ms. Kennedy-Schlossberg is not unqualified to be a Senator from NY because she has missed votes, nor because she has never held nor run for public office. She is unqualified because she knows nothing of the needs of New Yorkers and we do not need another celebrity senator coming from this state when there are a number of people who do know what they are talking about and what to do about the issues. Unfortunately none of them are even in Congress right now.
Finally there is this interesting choice for US Senator, one that the Governor should really think about, one who has served our state very well over the last 20+ years and who is well aware of the needs of the people of our state. I think Eric Turkewitz of New York Personal Injury Attorney Blog is on to something when he recommends Chief Judge Judith Kaye who retire in 2 weeks to be our new Junior Senator. The only qualm I have with Eric's post is that he compares Ms. Kennedy with Pres. G.W. Bush. I am sorry Eric, there is no comparison. Caroline was an excellent student and a very good child. She has always been thoughtful and concerned about others while she guarded her privacy. Comparing her to Bush is like comparing the Pope to Saddam Hussein. Still I think Judge Kaye would make a great democrat possibility for US Senate.
4. Finally, The New York State Bar Association has a general Practice committee. It has a blog. The blog written by Leonard Sienko has a lot of important stuff on it. You don't have to be a member of the State Bar to read the Blog. So READ THE BLOG!!
Two important posts:
A. NY has finally adopted the Model Rules for Professional Conduct. It goes into effect in March 2009. I will be blogging on that I imagine a lot in the next few months.
and
B. The IRS is willing to help struggling homeowners refi and sell their homes by allowing Federal Tax liens to take a secondary position to some mortgages. It's a start anyway.
5. Over at the Divorce hotline, Janine Barbera (aka MatMaven) has a post about the way some judges just lord over a court, forgetting the people that use the court are not there to serve them so much as to be served by them. The post is short on facts but that is fair, Janine wants to be able to continue to practice law. Besides if any judge she appeared before in the last couple of days sees himself, then he should CHANGE HIS WAYS!!!
Q: In the meantime here is a quiz... What is the shortest time span known to man??
A: The period of time it takes for a newly minted judge to forget he was ever a practicing lawyer...
Ok that is a generalization, but sadly it is true way too often. Maybe it is something they should address in judge's school.
OK so much for Part III.
Monday, December 01, 2008
Do Not Support Mother's Against Drunk Drivers: That Lawyer Dude Responds to a Request for Financial Support
My friend Bob Kraft is a great lawyer and great and giving guy. Why just a few months ago I paid good money to get his rear-end out of jail on bail, as a fund-raising gimmick for MDA.
Bob is a man who not only gives his time and money, but his name to charities. That is why I hesitated to respond when he posted a plea for money on his blog P.I.S.S.D. (Personal Injury Social Security Disability Blog). (Further proof that not only is he a good guy but has a warped sense of humor.)
After thinking about it for a while I decided I could not let it go, so I posted a reply. I repeat it here in case any of my other readers are thinking about wasting valuable charity dollars on a group known as Mother's (they aren't) Against Drunk Driving, a now multi-million dollar fraud on the American public.
If you wish to follow me on Twitter, log into www.twitter.com/thatlawyerdude. Please be careful, Twitter can become an addiction.
Bob is a man who not only gives his time and money, but his name to charities. That is why I hesitated to respond when he posted a plea for money on his blog P.I.S.S.D. (Personal Injury Social Security Disability Blog). (Further proof that not only is he a good guy but has a warped sense of humor.)
After thinking about it for a while I decided I could not let it go, so I posted a reply. I repeat it here in case any of my other readers are thinking about wasting valuable charity dollars on a group known as Mother's (they aren't) Against Drunk Driving, a now multi-million dollar fraud on the American public.
Robert I love you but you have got to stop drinking the kool-aid with this one. MADD has gone so far off course that even its own founder won't have anything to do with it.
Money to MADD goes to paying the over-inflated salaries of its humongous staff. A staff by the way which perpetuates itself by making false claims about how many real innocent lives are taken each year by Drunk Driving.
MADD makes more than Fifty One Million Dollars ($51,000,000) a year and pays its executive director over a quarter million dollars a year. Most Executive directors of charities earn far far less. Staff for MADD is nearly 45% of its budget.
Additionally it has one of the lowest efficiency rankings in the Charity Navigator's rankings. (www.charitynavigator.org) Over-all it only has a rank of 2 out of 4 stars. The American Institute of Philanthropy gives it a "D" (A+ is the highest).
The continue to perpetuate that drinking and driving is a crime (Drinking and driving intoxicated is a crime) and they continue to try to lower the BAC for legal driving where in fact there has been little proof that .08 is an accurate figure for such a criminal charge. They also support laws that are designed to keep people charged with DWI and DUI from having lawyers and laws that are designed to further shore up their view that alcohol should be a banned substance.
MADD as presently constituted is nothing more than a lobbyist group they are corrupt and they publish false and misleading studies. They are at the front of a movement to keep real science out of the courtroom so as to support their positions and salaries.
NO BOB do not be fooled. MADD IS NOT A CHARITY WORTHY OF YOURS OR ANYONE ELSES "SUPPORT".
If you wish to follow me on Twitter, log into www.twitter.com/thatlawyerdude. Please be careful, Twitter can become an addiction.
Friday, November 28, 2008
Nassau DWI Arrests Spike on Thanksgiving Eve: Some Thoughts From That Lawyer Dude
Nassau County Police announced that their DWI arrests spiked by 300 percent. Nassau Police usually average about 10 arrests a night however on November 25th police arrested 35 people in Nassau County alone. Suffolk County numbers are not available.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
Wednesday, October 01, 2008
BREAKING NEWS: HEATHER LOCKLEAR MAY HAVE BEEN SET UP! PROSECTUTION IN DISARRAY
The celebrity gossip website TMZ is reporting that Actress Heather Locklear was set up by an out of work gossip reporter Jill Ishkanian illegally obtained information about Heathers whereabouts by hacking into her former employers website, followed her, called in a false tip and then sold information to a paparazzi that Heather was about to be arrested. Ishkanian is also under investigation by the FBI.
In a telling statement, TMZ reports:Ishkanian apparently is the only witness who says Locklear was driving erratically and that she was drunk, even though it's already established she was not under the influence of alcohol.
This really calls into question the probable cause for Locklear's arrest.
In a telling statement, TMZ reports:Ishkanian apparently is the only witness who says Locklear was driving erratically and that she was drunk, even though it's already established she was not under the influence of alcohol.
This really calls into question the probable cause for Locklear's arrest.
Sunday, September 28, 2008
Heather Locklear Arrested for DUI: Understanding Addiction
I was sorry to get the Twitter post earlier this afternoon that the beautiful Heather Locklear, was arrested in Hollywood for Driving Under the Influence of a Narcotic. Earlier this year (June 2008) Heather checked herself into the Sierra Tucson Rehab facility. I was sad because we are watching the unraveling of a person who is well liked, beautiful, as well as a mother of a youngster. I am also worried because I am afraid that people in the courthouses where I work may believe that the rehab, Sierra Tucson was less than a good place for patients to find recovery. I should say here, that I have over the last 15 years sent many of my clients to Sierra Tucson to find recovery from all kinds of addictions. I and the courts have been very pleased with the results.
Addicted people, especially those that understand they are addicted, do not lack control. Neither is falling off "the wagon" an indication that the rehabilitation they underwent failed. First, the problem with most addicts is that they have too much control. They need to control everything. As the world spins out of control, they become more and more unable to to control the pain and the anxiety that is in their world, and they use the anchor of the pill or the drink to help them deal with the fact that they are not in control of others and of events.
Put another way, a "dry" control freak is an alcoholic waiting to happen.
If you think about anxiety and stress as a kink in a hose lying on the ground, what happens is when the "water" (the issues in everyday life) get stuck in the kink the hose builds up pressure and when it finally blows the kink out, it is out of control. The way that "out of control" usually exhibits itself is by anger. The drug then is used to calm the alcoholic down and bring his behavior back into the fold so that he or she will be able to "control" everything again shortly.
When the alcoholic begins to understand that she has only control over herself and her behavior and reaction to things, she begins recovery. It sounds easier than it is. This is especially true for people who find themselves in Locklear's position. She is still required to be beautiful, she is pushing 50 her "best years" work wise behind her and she is going through not one but 2 major betrayals. One her divorce from Richie Sambora, and the other that her "best friend" Denise Richards took up with him. While Locklear has a new relationship, her dealing with the effects of the betrayals and other slights and resentments in her life determine her ability to recover. What I find heroic about her is that she signed herself in before she had a incident (such as the one she faces now)that forced the move. She went to Rehab, because she acknowledged she needed it.
In signing herself into Sierra, Locklear did not finish her journey into recovery, rather, she was beginning it. Sierra is a wonderful place. I have sent many clients there to find recovery and I have visited there to see how it all works. I will say that there are few more beautiful places than this ranch at the foothills of the Santa Catalina Mountains in southern Arizona. If one has to be in a rehabilitation facility, this is THE ONE. In addition to beautiful double rooms,called Casitas (they are not big, nor plush, but they are quiet and comfortable), The rehab has a hospital with about 8 beds to help those with Psych issues that have to be medicated,or detoxed, but it is not really a psychiatric hospital.
Sierra has a beautiful trail that winds it's way about a half mile into the desert where you can see snakes and coyotes as well as find one's soul. I have watched people take a walk into the desert and come back a changed person. They call this trail the Serenity trail.
Sierra is an "experiential" psych center, It is not just one big group therapy session. Everything is part of the work there; be it old fashion cognitive behavioral therapy, or some type of "fun" activity, it is all meant to open the patient up and make them vulnerable so that they may begin to find the tools to recover. Be it time in the gym, or the pool, or riding and caring for a horse in the equine therapy program, everything in this place is meant to help patients find a balance in all aspects of their lives. In addition, it is meant to help you confront the fears and the issues that is in your life. There is a program to not only help the patient, but to address the other people in the patients life. Family week is a very interesting time where family and friends of the patient can confront the patient and bring all the issues that are not talked about out into the open, in front of others in the group, in a safe way and in a safe place.
Sierra, is a magical place, but it is the continued work that goes on after one leaves the facility that is important. Unfortunately, Publicists, Managers, Agents, and others, may not be supportive of the program. Taking time for meetings and support groups and calling a fellow friend of Bill, or attending alumni meetings all take away time from making money. Further, humility is a key ingredient in recovery. One has to constantly remember that they are not able to finesse this disease. You cannot bat your eyes at it, you can't charm it away. This concept of humility is not in the repritoire of most actresses. Without support from the people, she surrounds herself with, and without a commitment to keeping humble herself, the rehabilitation was sure to relapse.
Often those of us that work with addicts say that relapse is part of recovery. Imagine being told that you can never have something that has always been used by you to reduce your pain and that is readily available to you. Imagine having a headache everyday and not being allowed to use aspirin or acetaminophen. The Addict is going to experiment the moment the pain becomes too great. She is going to see if she can CONTROL (there is that word again) the usage. Assuming that the issues that caused resentments were addressed in the rehab, it doesn't mean that they do not return. If they went unaddressed then they are sure to rear their ugly heads.
Working with someone who is trying to overcome an addiction is not an easy thing. It is frustrating and it can be heartbreaking work. I strongly suggest, that before one condemns a person who has tried to recover and failed, they walk a day in that person's shoes. As a society, we need to see addiction for what it truly is, an illness that often can be put into remission but not one that can be cured. This is not meant to excuse the behaviors of one who is addicted and fails to live within the law, rather it is to explain the work that one must do to beat back an addiction, and the support that individual needs to continue in recovery. It is also an attempt to help the public understand that if steps are taken to regain recovery, we should work with those steps, as the relapse is not an abnormal event in the course of this disease. I do not know if Heather Locklear is guilty of DUI, but I know that given her attempt to find a cure, she should receive our support and not our condemnation.
I wish her well.
Wednesday, September 17, 2008
From the Headlines on Long Island
Busy day in the courts on Long Island.
Newsday reports that former NY Giant receiver and Superbowl hero Mark Ingram was sentenced to 7 years 8 months for trying to launder money for people he thought were drug dealers. They were in fact FBI undercover agents. The crimes took place in Florida and New York. EDNY Judge Hurley was not moved by Ingram's off or on field heroics (Ingram played a big part in the Giants Superbowl win in 1991 over the Buffalo Bills.
Ingram's life since retirement has been bizarre. He has been jailed for a number of crimes including breaking into a car to steal a pocketbook. I understand he went through three assigned attorneys and wrote a very bizarre motion. I wonder if he is not somehow mentally ill. Finally, he went through an awful lot of money. He has to be indigent to get a free lawyer. This is a sad and bizarre story.
Speaking of bizarre cases, Nassau County District Attorney Kathleen Rice continues to misuse the law to forward her crazy views of DWI cases. Getting a conviction for Murder in the Second Degree, the court (Peck J.) sentenced the defendant Franklin McPherson, to Twenty Five years to life. Interesting given the fact that while the behavior was considered very reckless by the jury (a decision that will be over turned in my humble opinion because it was given an incorrect jury charge and a charge that was changed after summations were completed a No NO) that is the maximum. If we sentence to the maximum for reckless conduct, what does that leave us for intentional conduct??
Anyway, you can catch more on this story here
By the way Judge, I think 25 years is too long for a 20 year old kid who did not act intentionally. We are giving up on a 20 year old is really not a conservative concept. Do we really think this person has no value to us as a community?? Hopefully this case gets overturned soon.
Finally a case that does make some sense. Suffolk County Court Judge James Hudson, properly sentenced a man to probation in a devastating accident caused by his intoxication. His wife who was severely injured begged Judge Hudson and the Suffolk county District Attorney Thomas Spota for leniency for her husband and father of her two children. She told them she needs him home to care for her. The court and District Attorney agreed.
What I find interesting here is that DA Spota only charged the appropriate charge of vehicular assault and not the higher but legally unwarranted and vindictive Assault 2d degree. I am in a case right now with DA Kathleen Rice and just as she did in the McPearson case above, she has illegally over-charged the case. I am hoping the court agrees that we should have a vehicular assault charge only for accidents that happen while one is intoxicated. If Assault 2d degree were the appropriate charge why would we have a second separate charge? Well I guess while we pay more in taxes, Ms. Rice will continue to waste our taxpayers money to fight her insane,politically motivated and legally irrational march against the citizenry.
TLD.
Edited to make a few sentences make more sense.
Newsday reports that former NY Giant receiver and Superbowl hero Mark Ingram was sentenced to 7 years 8 months for trying to launder money for people he thought were drug dealers. They were in fact FBI undercover agents. The crimes took place in Florida and New York. EDNY Judge Hurley was not moved by Ingram's off or on field heroics (Ingram played a big part in the Giants Superbowl win in 1991 over the Buffalo Bills.
Ingram's life since retirement has been bizarre. He has been jailed for a number of crimes including breaking into a car to steal a pocketbook. I understand he went through three assigned attorneys and wrote a very bizarre motion. I wonder if he is not somehow mentally ill. Finally, he went through an awful lot of money. He has to be indigent to get a free lawyer. This is a sad and bizarre story.
Speaking of bizarre cases, Nassau County District Attorney Kathleen Rice continues to misuse the law to forward her crazy views of DWI cases. Getting a conviction for Murder in the Second Degree, the court (Peck J.) sentenced the defendant Franklin McPherson, to Twenty Five years to life. Interesting given the fact that while the behavior was considered very reckless by the jury (a decision that will be over turned in my humble opinion because it was given an incorrect jury charge and a charge that was changed after summations were completed a No NO) that is the maximum. If we sentence to the maximum for reckless conduct, what does that leave us for intentional conduct??
Anyway, you can catch more on this story here
By the way Judge, I think 25 years is too long for a 20 year old kid who did not act intentionally. We are giving up on a 20 year old is really not a conservative concept. Do we really think this person has no value to us as a community?? Hopefully this case gets overturned soon.
Finally a case that does make some sense. Suffolk County Court Judge James Hudson, properly sentenced a man to probation in a devastating accident caused by his intoxication. His wife who was severely injured begged Judge Hudson and the Suffolk county District Attorney Thomas Spota for leniency for her husband and father of her two children. She told them she needs him home to care for her. The court and District Attorney agreed.
What I find interesting here is that DA Spota only charged the appropriate charge of vehicular assault and not the higher but legally unwarranted and vindictive Assault 2d degree. I am in a case right now with DA Kathleen Rice and just as she did in the McPearson case above, she has illegally over-charged the case. I am hoping the court agrees that we should have a vehicular assault charge only for accidents that happen while one is intoxicated. If Assault 2d degree were the appropriate charge why would we have a second separate charge? Well I guess while we pay more in taxes, Ms. Rice will continue to waste our taxpayers money to fight her insane,politically motivated and legally irrational march against the citizenry.
TLD.
Edited to make a few sentences make more sense.
Sunday, July 20, 2008
Around the Blawgosphere: The week of July 14 2008
Don't forget about 8:30PM tonight, I begin blogging once a week at Long Island (Criminal)Trial Law. Tonights topic: Voir Dire of the Prosecutions Expert.
Ok so what did I find interesting last week?
1.This article from CrimProf Blog about how Facebook can help prosecutors and defense attorney's destroy the character of young witnesses.
Word to the wise Attorney: do a screenshot of your client's Facebook/MySpace page and then have him take it down. Tell him not to let anyone take his picture and to be sure that no one "Tags" him. Then make sure he or a loved one monitors the page. Also be sure that you get him to "Friend" you.
BTW if you do not have a Facebook or MySpace page or know what they are... you need to adopt a high school kid.
2. Also from CrimProf blog: When in the Congo, don't do like the Congolese (or the Brazilians either) This one is one of the weirder ones. The US State Dept Hired a nudist (not just a nudist but a leader of the movement) made him a diplomat and then he went to the Congo and Brazil where he had sex with minors and had pictures of them on his laptop...Porno of course. His defense? This type of behavior is common and is acceptable in those countries...
By the way, check out the URL for the post on the CRIMPROF's blog... Poetic Justice??
3. Mike over at Crime and Federalism Blog takes NY Times columnist Adam Liptak to task for not having any idea about the true nature and effectiveness of the Exclusionary rule. Seems in Liptak's world we defense lawyers are winning these suppression motions so often that it is making the world an unsafe place. Title of the piece, Media Ignorance (of the Exclusionary Rule), sounds redundant to me.
4. If they were any good at science they Woulda been Doctors not Judges.
My friend and one of my favorite bloggers Lawrence Taylor blogs about how in a recent case, California appellate judges permitted a Driver to be found drunk even though the defense was stopped by the judge from showing that the science behind the machine was faulty. See his post in DUI BLOG. The law trumps the state of accurate science...
5. Another Fave of mine Doug Berman over at Sentencing Law and Policy Blog is wondering here if President Bush will grant more pardon's at the end of his term
My short answer? Don't hold your breath.
That is it for now. Hope you are having a nice summer.
TLD.
Ok so what did I find interesting last week?
1.This article from CrimProf Blog about how Facebook can help prosecutors and defense attorney's destroy the character of young witnesses.
Word to the wise Attorney: do a screenshot of your client's Facebook/MySpace page and then have him take it down. Tell him not to let anyone take his picture and to be sure that no one "Tags" him. Then make sure he or a loved one monitors the page. Also be sure that you get him to "Friend" you.
BTW if you do not have a Facebook or MySpace page or know what they are... you need to adopt a high school kid.
2. Also from CrimProf blog: When in the Congo, don't do like the Congolese (or the Brazilians either) This one is one of the weirder ones. The US State Dept Hired a nudist (not just a nudist but a leader of the movement) made him a diplomat and then he went to the Congo and Brazil where he had sex with minors and had pictures of them on his laptop...Porno of course. His defense? This type of behavior is common and is acceptable in those countries...
By the way, check out the URL for the post on the CRIMPROF's blog... Poetic Justice??
3. Mike over at Crime and Federalism Blog takes NY Times columnist Adam Liptak to task for not having any idea about the true nature and effectiveness of the Exclusionary rule. Seems in Liptak's world we defense lawyers are winning these suppression motions so often that it is making the world an unsafe place. Title of the piece, Media Ignorance (of the Exclusionary Rule), sounds redundant to me.
4. If they were any good at science they Woulda been Doctors not Judges.
My friend and one of my favorite bloggers Lawrence Taylor blogs about how in a recent case, California appellate judges permitted a Driver to be found drunk even though the defense was stopped by the judge from showing that the science behind the machine was faulty. See his post in DUI BLOG. The law trumps the state of accurate science...
5. Another Fave of mine Doug Berman over at Sentencing Law and Policy Blog is wondering here if President Bush will grant more pardon's at the end of his term
My short answer? Don't hold your breath.
That is it for now. Hope you are having a nice summer.
TLD.
Thursday, July 17, 2008
Wow What a Summer, (And It Is Not Even Half Over)
When I last left you, I was sad that Debra Jean Paltrow decided to end her life. I think it was a permanent solution to what was a temporary problem. I also thought her prosecution (not to mention her conviction) was a monumental waste of taxpayers time and money not to mention personnel resources.
So then what happened?? All hell broke loose That is what happened.
In chronological order:
1. I became involved to represent the driver in this very sad case. (The Griffin Case)
2. I was a judge at the National Catholic Forensic League Grand Championships in The Fox Cities area of Wisconsin.
3. The Nassau County DWI Wall of Shame went up.
4. I started representing Rabbi Morris Talansky, who is a really nice guy getting slammed unfairly in the foreign press (and by the NY Tabloids too but what else is new.)
5. I started the Murder Trial of Ronald "Shorts" Rodriguez.
6. The District Attorney of Nassau decided that I might beat her in the aforementioned Griffin case so she began "Poisoning the Jury Pool" with outrageous remarks that show her lack of maturity and her lack of fitness for the office she holds.
7. A nut job in the gallery of the courtroom during the Rodriguez trial, jumped up and attacked Shorty and me (he was aiming for Shorty, I was just collateral damage) which caused a 2.5 day break in the trial, and pointed out to all of us in Nassau County that we need to take more precautions to safeguard our trial courts (Hint Hint, it is time to build a new and safer annex to the county court.)
8. After one of the toughest trials I have ever been involved with, Ronald "Shorts" Rodriguez was ACQUITTED of Murder in the second degree (Intentional Murder) Manslaughter in the 1st degree (Intentionally causing injury that results in death through the use of Deadly Physical Force) and was convicted of the non-violent crime of Manslaughter in the 2d degree (recklessly causing the death of another) and possession of a weapon 3rd degree. (Sentencing is scheduled for September.)
9. In addition, the economy tanked, you can no longer afford to fill a gas tank without a loan, and it is Obama v. McCain but look out for BARR to play a spoiler unless McCain starts to comeback to his roots.
AND
10. I was cited as a blogging lawyer in an article at Get LEGAL.COM
11. I am building a new website (the old one is down and I have a static place holder there right now but wait until) NEXT month.
I will be posting on these topics and a few other things too over the next few weeks. Sorry for being away too long, but I just can't seem to write when I am in trial.
Corrections: Spell checked and links added.
So then what happened?? All hell broke loose That is what happened.
In chronological order:
1. I became involved to represent the driver in this very sad case. (The Griffin Case)
2. I was a judge at the National Catholic Forensic League Grand Championships in The Fox Cities area of Wisconsin.
3. The Nassau County DWI Wall of Shame went up.
4. I started representing Rabbi Morris Talansky, who is a really nice guy getting slammed unfairly in the foreign press (and by the NY Tabloids too but what else is new.)
5. I started the Murder Trial of Ronald "Shorts" Rodriguez.
6. The District Attorney of Nassau decided that I might beat her in the aforementioned Griffin case so she began "Poisoning the Jury Pool" with outrageous remarks that show her lack of maturity and her lack of fitness for the office she holds.
7. A nut job in the gallery of the courtroom during the Rodriguez trial, jumped up and attacked Shorty and me (he was aiming for Shorty, I was just collateral damage) which caused a 2.5 day break in the trial, and pointed out to all of us in Nassau County that we need to take more precautions to safeguard our trial courts (Hint Hint, it is time to build a new and safer annex to the county court.)
8. After one of the toughest trials I have ever been involved with, Ronald "Shorts" Rodriguez was ACQUITTED of Murder in the second degree (Intentional Murder) Manslaughter in the 1st degree (Intentionally causing injury that results in death through the use of Deadly Physical Force) and was convicted of the non-violent crime of Manslaughter in the 2d degree (recklessly causing the death of another) and possession of a weapon 3rd degree. (Sentencing is scheduled for September.)
9. In addition, the economy tanked, you can no longer afford to fill a gas tank without a loan, and it is Obama v. McCain but look out for BARR to play a spoiler unless McCain starts to comeback to his roots.
AND
10. I was cited as a blogging lawyer in an article at Get LEGAL.COM
11. I am building a new website (the old one is down and I have a static place holder there right now but wait until) NEXT month.
I will be posting on these topics and a few other things too over the next few weeks. Sorry for being away too long, but I just can't seem to write when I am in trial.
Corrections: Spell checked and links added.
Sunday, April 27, 2008
A Sunday Jog Around the Blogosphere
Wow what a busy week. 8 posts in one week!! Pretty good especially for me. I doubt I will be quite so prolific this week as I am going to be back on a suppression hearing on Tuesday and maybe Wednesday in People v. Ronald "Shorty" Rodriguez, before the Hon. Meryl Berkowitz in Nassau County Court. Later in the week I will be in NYC for the 50th Anniversary of the NACDL. I may do a few blogs from there. I am excited because I am serving on the Nomination committee. Fellow Law Blogger and President-elect John Wesley Hall asked me to serve and I am very honored.
So as it is Sunday, I am going to again jog around the blogoshere with you. Here are a few things that caught my eye this week that I didn't get to write more about but you may want to look into yourself:
1. That Exotic Darlin' of the Neo-Con set Michelle Malkin asks the blog question, are US banks Knowingly Laundering Drug Money for Mexican Drug Cartels?? Michelle's take is that illegals, are here, sending money there (Mexico) through non-banks called "casas di cambio." American banks wanting some of the action offer these CdiC's a place to put large amounts of money and will look the other way if some of the money comes from the drug trade.
Michelle's neo-con answer is of course to prosecute the banks the illegals and the democrats. MY answer is better. Legalize the Drugs and tax same, put the money to use to help people beat their addictions, and open the borders correctly with a sane immigration policy that will not cripple US businesses.
Hmmm... Deport workers, cripple our economy, jail Americans for trying to make a living, jail more people for feeding their addictions, ruin foreign governments by making Criminal's rich and cost the American Taxpayer gazillion dollars for a drug war we could end with the stroke of a pen versus A sane immigration policy and drug policy... Ok she is sexy (especially compared to that shrieking idiot of the rightamortis, Ann Coulter ) but her views are silly.
2. I will never figure out the Federal Prosecutor's fascination with rebuttal witnesses. I guess they feel that it gives them a chance at primacy and finality two forensic speaking techniques. On the other hand, watching a case go in over seven (7) weeks and then blowing up on rebuttal just makes me question two things: to they think the defense isn't aware of their games and can not counter them? and Why do they think the jury needs to hear the same stuff over and over again? Anyway, the Pellicano case in L.A. Federal court is about to go to a mistrial... seems that the rebuttal witness they called to contradict the defendant's testimony on a minor issue, committed perjury and will have to take the 5th amendment on Monday. She was to be the final witness. Shame on the US Attorney's office in L.A. for doing a shabby job of investigating their own witness. Talkleft has some coverage here.
3. Pittsburgh Pa. has become an adoptive second home for us. We go there for some of my wife's medical treatments. The City is made up of many really nice people. Then of course there is their US Attorney, but she is a story for another post.
For now, here is a story about a guy who was arrested for complaining too much in a bad tone... A little subjective no?? Anyway he was convicted by a jury and it is on appeal... I can understand how one might want to be respected for working in public service. On the other hand I can also see how one might get fed up with the failure of certain public servants to do their jobs. What I cannot see is someone being convicted for complaining to a public servant about the job they do. Taking complaints is in the job description. As long as it is not abusive language tone shouldn't matter. (I am not sure abusive language should matter either but that too is another post.)
Hattip: to Radley Balko at The Agitator
In a related post over at the CrimProf Blog there is a story about a guy who got 15 years for sending governmental officials threatening letters.
4. "Romeo, Romeo, Where fore art thou Romeo..." Well both Romeo and Juliet are over at the Volokh Conspiracy this week where Professor Eugene Volokh, the head conspirator looks at the reason's behind Romeo and Juliet sex laws (laws that outlaw sex between adults and minors of a certain age but allows the sex if the lovers are born within a certain amount of time of each other. On first blush, it seems that Prof. Volokh is in favor of pedophiles, however when you look at his questions he does seem to put those laws under a light of logic and they do not come out all that well.
5. Some Good and Bad News about the Fourth Amendment in the news this week.
The blogosphere is abuzz with news out of California about the Ninth Circuit agreeing that laptops can be searched at screening at airport screening stations.
Meanwhile in NJ. the Supreme Court stunned prosecutors in ruling that people do have a fourth amendment protection in their ISP carriers information.
6. New and scary uses for DNA. Now it will be guilt by blood association. See this post for more information. Coming 0n the heels of Judge Weinstein's decision in , there may be a trend toward bringing Fourth Amendment law into the open and up to date with this century.
And that's our jog round the blogosphere. See you around. It should be an exciting week.
TLD.
So as it is Sunday, I am going to again jog around the blogoshere with you. Here are a few things that caught my eye this week that I didn't get to write more about but you may want to look into yourself:
1. That Exotic Darlin' of the Neo-Con set Michelle Malkin asks the blog question, are US banks Knowingly Laundering Drug Money for Mexican Drug Cartels?? Michelle's take is that illegals, are here, sending money there (Mexico) through non-banks called "casas di cambio." American banks wanting some of the action offer these CdiC's a place to put large amounts of money and will look the other way if some of the money comes from the drug trade.
Michelle's neo-con answer is of course to prosecute the banks the illegals and the democrats. MY answer is better. Legalize the Drugs and tax same, put the money to use to help people beat their addictions, and open the borders correctly with a sane immigration policy that will not cripple US businesses.
Hmmm... Deport workers, cripple our economy, jail Americans for trying to make a living, jail more people for feeding their addictions, ruin foreign governments by making Criminal's rich and cost the American Taxpayer gazillion dollars for a drug war we could end with the stroke of a pen versus A sane immigration policy and drug policy... Ok she is sexy (especially compared to that shrieking idiot of the rightamortis, Ann Coulter ) but her views are silly.
2. I will never figure out the Federal Prosecutor's fascination with rebuttal witnesses. I guess they feel that it gives them a chance at primacy and finality two forensic speaking techniques. On the other hand, watching a case go in over seven (7) weeks and then blowing up on rebuttal just makes me question two things: to they think the defense isn't aware of their games and can not counter them? and Why do they think the jury needs to hear the same stuff over and over again? Anyway, the Pellicano case in L.A. Federal court is about to go to a mistrial... seems that the rebuttal witness they called to contradict the defendant's testimony on a minor issue, committed perjury and will have to take the 5th amendment on Monday. She was to be the final witness. Shame on the US Attorney's office in L.A. for doing a shabby job of investigating their own witness. Talkleft has some coverage here.
3. Pittsburgh Pa. has become an adoptive second home for us. We go there for some of my wife's medical treatments. The City is made up of many really nice people. Then of course there is their US Attorney, but she is a story for another post.
For now, here is a story about a guy who was arrested for complaining too much in a bad tone... A little subjective no?? Anyway he was convicted by a jury and it is on appeal... I can understand how one might want to be respected for working in public service. On the other hand I can also see how one might get fed up with the failure of certain public servants to do their jobs. What I cannot see is someone being convicted for complaining to a public servant about the job they do. Taking complaints is in the job description. As long as it is not abusive language tone shouldn't matter. (I am not sure abusive language should matter either but that too is another post.)
Hattip: to Radley Balko at The Agitator
In a related post over at the CrimProf Blog there is a story about a guy who got 15 years for sending governmental officials threatening letters.
4. "Romeo, Romeo, Where fore art thou Romeo..." Well both Romeo and Juliet are over at the Volokh Conspiracy this week where Professor Eugene Volokh, the head conspirator looks at the reason's behind Romeo and Juliet sex laws (laws that outlaw sex between adults and minors of a certain age but allows the sex if the lovers are born within a certain amount of time of each other. On first blush, it seems that Prof. Volokh is in favor of pedophiles, however when you look at his questions he does seem to put those laws under a light of logic and they do not come out all that well.
5. Some Good and Bad News about the Fourth Amendment in the news this week.
The blogosphere is abuzz with news out of California about the Ninth Circuit agreeing that laptops can be searched at screening at airport screening stations.
Meanwhile in NJ. the Supreme Court stunned prosecutors in ruling that people do have a fourth amendment protection in their ISP carriers information.
6. New and scary uses for DNA. Now it will be guilt by blood association. See this post for more information. Coming 0n the heels of Judge Weinstein's decision in , there may be a trend toward bringing Fourth Amendment law into the open and up to date with this century.
And that's our jog round the blogosphere. See you around. It should be an exciting week.
TLD.
Friday, April 25, 2008
Mothers Against Drunk Drivers New Tactic : First Thing We Do Is Gag All The Lawyers
Our friends at DUIBLOG alert us to a new idea being tried out in Tennessee. A State Senator (a former nurse) has introduced an amendment to a Homeland Security bill to forbid Criminal Defense Lawyers from advertising their expertise in handling DWI cases. Here is the AP Article:
Senate measure would ban lawyers from DUI advertising
By ERIK SCHELZIG • Associated Press Writer • April 22, 2008
Defense attorneys would be banned from advertising their expertise with drunken driving cases under a bill advancing in the Senate.
Sen. Rosalind Kurita, a Clarksville Democrat, successfully added the provision to a bill that would create an online registry of repeat DUI offenders in Tennessee.
Kurita says officials have a hard enough time convicting drunken drivers without lawyers advertising their expertise in the field and offering discounts to DUI defendants.
Senate Democratic Leader Jim Kyle, a Memphis attorney, argued that Kurita's proposal would violate commercial free speech rights.
Kyle says that as long as lawyers are meeting ethical standards set by the state bar association they should be allowed to advertise their legal qualifications.
Interestingly Kurita is not beloved by her fellow Democrats because she jumped ship and voted a Republican into the Lt. Governors seat after promising to support a Democrat last year. She was rewarded with the Presidency Pro Tem of the legislature.
Hence it came as no surprise that the Democrats launched a primary Campaign against her.
Guess what her Primary Opponent does for a living...
Right! He handles Criminal Defense cases including DWI.
Given that this stands no chance of ever remaining law (Lawyers have a right to advertise Bates v. State Bar of Arizona 97 S.Ct. 2691 [1977]) this becomes just one more waste of taxpayers money. (On the other hand, Nassau County (NY) District Attorney Kathleen Rice would have a blast with this kind of legislation.
What is most worrisome however is the reason she gave for supporting the ban.
They have a hard enough time convicting without lawyers advertising their expertise and giving discounts to suspected drunk drivers. Imagine how hard it would be if they had to use real science and not the junk science that backs up today's breath testing equipment?
Who advises this Senator anyway?
Tuesday, August 28, 2007
That Lawyer Dude's Favorite Answers to Lawguru.com Questions
As Promised in the last post, I am going to repost some of my favorite Q & A from questions posted at LawGuru.com. These will be my answers to these questions.
Feel free to send in your own questions to this blog by writing me at Catlaw1@yahoo.com. I will respond to everyone that I can. The best ones I will repost here. I reserve the right to clean up language and change some of the question to preserve the "dignity"(?) of this blog...
A. The Nasty Neighbor.
A homeowner writes:
Q: I have a neighbor that has been writing anonymous letters to us and other neighbors (Yes we know who it is) and this last letter that I rec'd was slanderous and disturbing. It made us aware that she has been keeping track of us. She has knowledge of personal things that she should know. It was very disturbing and upset my entire family. She made reference to making a former tenant from the one rental house on the block ''sorry'' for having accused her of saying that she has been writing these letters. She also said that my ex husband should have physically abused me. Sick stuff! Is there anything we can do to make this stop. P.S. She is obviously mentally ill, but we shouldn't have to keep the blinds shut during the day, Right?
I responded:
Correct. She is guilty of Aggravated Harassment. It is an A misdemeanor and can cause her to be incarcerated for up to 1 year. Get to the police. Each letter to each neighbor is a separate count. You can also bring a cease and desist order and seek orders of protection.
B. The Overprotective School District.
A Parent writes:
My child's public school in upstate NY is hosting an after-prom party at the school. One of the party stipulations, which parents & students are required to sign, states that students will not be allowed to leave unless picked up by a parent. I think this is fine, except in the case of those students who are 18 and legally adults. This includes my child. I have 2 questions: 1) since my child is 18, how can I legally authorize the school to keep my child there?, 2) how could the school legally prevent anyone 18 & over from leaving any time they desired?
A:Technically they cannot. I am told that Aerodynamically, a bumble bee should not be able to fly...except no one tells the bumblebee. I have a feeling that your local HS is working under the same theory.
C. The Absent Social Host.
A concerned Parent(?) writes:
If a parent is away on vacation and their child has underage kids drinking at their house, are they liable under the law?
My Answer:
I assume you are speaking of the new social host laws in Nassau county and in some of the cities therein.
By way of the Nassau law, it seems that there are facts that could result in a conviction for an absent parent in your scenario, the parent would in fact be liable if he knew or had reason to know that underage minors were drinking in his home.
It will be a tough case in some instances, but yes a district attorney could conceivably get a conviction if the minor giving out the alcohol had done it before, and if the liquor was readily available in the home etc. etc.
I do not know if the courts will find this law constitutional or not, although I would love to handle the test case.
Be advised.
Well not bad for a first time out. Let me know what you think of this as a feature. I look forward to hearing your responses.
Feel free to send in your own questions to this blog by writing me at Catlaw1@yahoo.com. I will respond to everyone that I can. The best ones I will repost here. I reserve the right to clean up language and change some of the question to preserve the "dignity"(?) of this blog...
A. The Nasty Neighbor.
A homeowner writes:
Q: I have a neighbor that has been writing anonymous letters to us and other neighbors (Yes we know who it is) and this last letter that I rec'd was slanderous and disturbing. It made us aware that she has been keeping track of us. She has knowledge of personal things that she should know. It was very disturbing and upset my entire family. She made reference to making a former tenant from the one rental house on the block ''sorry'' for having accused her of saying that she has been writing these letters. She also said that my ex husband should have physically abused me. Sick stuff! Is there anything we can do to make this stop. P.S. She is obviously mentally ill, but we shouldn't have to keep the blinds shut during the day, Right?
I responded:
Correct. She is guilty of Aggravated Harassment. It is an A misdemeanor and can cause her to be incarcerated for up to 1 year. Get to the police. Each letter to each neighbor is a separate count. You can also bring a cease and desist order and seek orders of protection.
B. The Overprotective School District.
A Parent writes:
My child's public school in upstate NY is hosting an after-prom party at the school. One of the party stipulations, which parents & students are required to sign, states that students will not be allowed to leave unless picked up by a parent. I think this is fine, except in the case of those students who are 18 and legally adults. This includes my child. I have 2 questions: 1) since my child is 18, how can I legally authorize the school to keep my child there?, 2) how could the school legally prevent anyone 18 & over from leaving any time they desired?
A:Technically they cannot. I am told that Aerodynamically, a bumble bee should not be able to fly...except no one tells the bumblebee. I have a feeling that your local HS is working under the same theory.
C. The Absent Social Host.
A concerned Parent(?) writes:
If a parent is away on vacation and their child has underage kids drinking at their house, are they liable under the law?
My Answer:
I assume you are speaking of the new social host laws in Nassau county and in some of the cities therein.
By way of the Nassau law, it seems that there are facts that could result in a conviction for an absent parent in your scenario, the parent would in fact be liable if he knew or had reason to know that underage minors were drinking in his home.
It will be a tough case in some instances, but yes a district attorney could conceivably get a conviction if the minor giving out the alcohol had done it before, and if the liquor was readily available in the home etc. etc.
I do not know if the courts will find this law constitutional or not, although I would love to handle the test case.
Be advised.
Well not bad for a first time out. Let me know what you think of this as a feature. I look forward to hearing your responses.
Monday, January 15, 2007
Fox News Cites That Lawyer Dude On The Heidgen Case
I want to welcome all of the visitors from Fox News. I hope you will visit often.
The hits on this blog more than doubled yesterday and I had no idea why. Now I know. This story on Fox News' website cites my post on the Martin Heidgen verdict. I am cited for differing with the prosecution and saying that the verdict will be overturned. I guess we will see. Coincidentally I just had another post on DWI's right below this one. I guess that's proof that "great" minds think alike.
The hits on this blog more than doubled yesterday and I had no idea why. Now I know. This story on Fox News' website cites my post on the Martin Heidgen verdict. I am cited for differing with the prosecution and saying that the verdict will be overturned. I guess we will see. Coincidentally I just had another post on DWI's right below this one. I guess that's proof that "great" minds think alike.
Sunday, January 14, 2007
Drinking And Driving Does Not Equal Driving While Intoxicated
I have spent the better part of this holiday season trying to disabuse potential clients of the idea that because they had a drink and drove, didn't mean that the prosecutors could prove they were drunk at the time they were arrested. The anti-alcohol lobby has done an excellent job of telling America, wrongly of course that if you drink and drive, you're guilty of Driving While Intoxicated.
If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.
To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.
Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.
Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.
Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.
With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?
The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.
If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.
To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.
Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.
Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.
Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.
With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?
The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.
Wednesday, December 27, 2006
A New Way To Attack An Old Problem: Gorilla Marketing And Driving While Intoxicate
The New York Times on Tuesday highlighted a new initiative to stop Drunk Driving in this article.It seems that the Bennington VT. Police Department has hit on an idea that may just work. Stopping drivers from becoming intoxicated and you won't have to arrest them. Now that's a novel idea.
What the department does is it hands out beer glasses to participating bars. The glasses have the police logo on them. It makes the driver think about how much he is drinking. Now there is a concept that might work.
According to Lieutenant Doucette who is in charge of the program this is how the "Pint Patrol" works:
I think this is an idea that will work. Last winter and again this Thanksgiving I handed out leaflets on cars that warned drivers/bargoers that police in the area had stepped up their DWI patrols. The leaflet had information about safety and a description of our law firm. It also had a rights card with our office information on the other side which had it been handed to a police officer would have invoked our prospective client's right to an attorney before being questioned.
The result of the leaflet was interesting. It seems that because we were putting them on windshields almost as quickly as drivers pulled into the parking lot, arrests were around the area where the bars were located. People realized that a night of drinking to excess could land them in jail. I was surprised at how many people had not already selected a designated driver and how approaching them on their way into the bar made them think about it before they wound up in the back of a police car, or worse. I also learned it was a good community gift but not a really good way to get clients, at least not that night.
In reality, I feel like I helped save a few lives on those nights we handed out the card. I hand them out now at High schools where I speak and we plan on handing them out at a few bars this winter and spring as the mood strikes. If it saves one person from doing something stupid for one night of their lives and maybe saves a life or limb of another, well then it is worth it. Here is another important quote from Lieutenant Doucette:
Imagine what the effect would be if MADD volunteers would do this every Thursday Friday and Saturday night, rather than trying to put the alcohol and bar business out of business? Oh yeah, if they really wipe out Driving While Intoxicated, how will their directors and managers make a living?
What the department does is it hands out beer glasses to participating bars. The glasses have the police logo on them. It makes the driver think about how much he is drinking. Now there is a concept that might work.
According to Lieutenant Doucette who is in charge of the program this is how the "Pint Patrol" works:
"It was my idea that we try to do something to promote highway safety," said Lt. Paul Doucette of the BPD. "One of the ways we let people know we're out there is through increased visibility. We don't want people driving impaired at all."
The pint glasses are being distributed to a variety of bars and restaurants around town and will be put into circulation on Friday. The 160 glasses were made by local company Catamount Glass and donated to the police force. The glasses come with four different pictures on them — the BPD patch, the BPD special response team patch, the BPD K-9 logo and the BPD 150th anniversary badge logo.
Doucette said the logos are there to help remind people that police are on the streets in full force during the holiday season.
"Around the holidays, people tend to drink a little more," Doucette said. "And that's OK, just as long as they have somebody to drive them home."
I think this is an idea that will work. Last winter and again this Thanksgiving I handed out leaflets on cars that warned drivers/bargoers that police in the area had stepped up their DWI patrols. The leaflet had information about safety and a description of our law firm. It also had a rights card with our office information on the other side which had it been handed to a police officer would have invoked our prospective client's right to an attorney before being questioned.
The result of the leaflet was interesting. It seems that because we were putting them on windshields almost as quickly as drivers pulled into the parking lot, arrests were around the area where the bars were located. People realized that a night of drinking to excess could land them in jail. I was surprised at how many people had not already selected a designated driver and how approaching them on their way into the bar made them think about it before they wound up in the back of a police car, or worse. I also learned it was a good community gift but not a really good way to get clients, at least not that night.
In reality, I feel like I helped save a few lives on those nights we handed out the card. I hand them out now at High schools where I speak and we plan on handing them out at a few bars this winter and spring as the mood strikes. If it saves one person from doing something stupid for one night of their lives and maybe saves a life or limb of another, well then it is worth it. Here is another important quote from Lieutenant Doucette:
"I'm not just about going out and arresting people," Doucette said. "I'm hoping we have a very safe holiday season without any major accidents related to alcohol."
Imagine what the effect would be if MADD volunteers would do this every Thursday Friday and Saturday night, rather than trying to put the alcohol and bar business out of business? Oh yeah, if they really wipe out Driving While Intoxicated, how will their directors and managers make a living?
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