A bus driver in San Antonio is caught on camera while driving and texting.  Crash ensues.  Go figure.

Bus Driver Texting and Crash

Yesterday, in Arizona v. Gant, 07-542, the United States Supreme Court ruled that police need a warrant to search a vehicle of a person arrested once that person is secured in a police cruiser and poses no safety threat to officers.

The Court held, in a 5-4 decision:

Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18. (a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested inlarge part on the assumption that articles inside a vehicle’s passenger compartment are “generally . . . within ‘the area into which an arrestee might reach.’ ” 453 U. S., at 460.

Rodney Gant had been arrested in Tucson, AZ. for driving on a suspended license.  He was handcuffed and placed in the back seat of a police cruiser.  During a subsequent warrantless search of his car, officers found cocaine and drug paraphernalia in the vehicle.  The Arizona trial court denied his Motion to Supress and he was convicted of drug offenses.

The majority opinion, written by Justice John Paul Stevens, noted warrantless searches are permitted by police only if the car’s passenger compartment is within reach of the suspect or there is probable cause to believe evidence will be found of the crime that led to the arrest. 

In rejecting  more expansive search powers Stevens rationalized:

“A rule that gives the police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.  Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment - the concern about giving police officers the unbridled discretion to rummage at will among a person’s private effects”  Id. at 11-12.

So, what does this decision mean for the average New York driver?  Clearly more protection from police searches.  I have had countless cases where a driver was stopped by law enforcement for a simple traffic matter, such as speeding or another routine traffic violation, and it turns out they are driving on a suspended license and arrested.  Subsequent vehicle search turns up contraband.  Under Gant, the police now will need a warrant to search the vehicle, unless that search was for evidence of the crime that person was arrested for.  The same rationale applies to DWI cases where the driver is arrested and placed in the police cruiser.  Unless police have probable cause to believe the vehicle contains evidence of the crime of DWI, the police will need a warrant to search that vehicle.

It should be noted that Gant probably does not limit other Fourth Amendment warrant clause exceptions such as consent, inventory, parole/probation search, and weapons search upon reasonable suspicion.

No Talking and Driving

New York State Police and the New York Thruway Authority have announced plans to step-up enforcement of the ban on driving and using cell phones without a “hands-free” device.  “Operation Hang Up” will target these drivers from April 21 - April 24, 2009.  The Troopers have given out over 5,000 citations for this offense in the past year.

Last month, the New York Post reported that the New York City police had a similar crackdown and gave out over 9,000 citations in a 24 hour period.

VTL 1225(c):

§1225-c. Use of mobile telephones.

1. For purposes of this section, the following terms shall mean: 

(a) “Mobile telephone” shall mean the device used by subscribers and other users of wireless telephone service to access such service. 
(b) “Wireless telephone service” shall mean two-way real time voice telecommunications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. S 20.3. 
(c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear. 
(d) “Hand-held mobile telephone” shall mean a mobile telephone with which a user engages in a call using at least one hand. 
(e) “Hands-free mobile telephone” shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone. 
(f) “Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. 
(g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear. 

2. (a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion. (b) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call. (c) The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a mobile telephone, unless otherwise provided by law.

3. Subdivision two of this section shall not apply to (a) the use of a mobile telephone for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician’s office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter, or (c) the use of a hands-free mobile telephone.

4. A violation of subdivision two of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred dollars.

We are watching.

The New York State legislature plans to approve the installation of up to 50 red light cameras at intersections in Rochester, NY  The Democrat & Chronicle published a story today on this matter: 

“Critics question whether the cameras are a solution looking for a problem, as the city thus far has not produced accident or enforcement data related to people running red lights. And while Mayor Robert Duffy says the motivation for putting up cameras is public safety, some question if the true benefit is the fines that violators will pay.

“When we start to use law enforcement as a way to generate revenue, I think that is troubling,” said Gary Pudup, director of the New York Civil Liberties Union, Genesee Valley Chapter. “This is not a case where the city is saying we have had these horrible accidents, and we are trying to do something about it. What they are doing is they are trying to close revenue gaps by fining citizens.”

Mayor Duffy stated that these cameras may bring in up to 3.5 million dollars annually to the city.  Each violation will result in a $50.00 fine to the owner of the vehicle - regardless of who is actually driving.  A City municipal attorney stated these citations would not count against the person’s driving record or insurance.

Contrast this plan against what happens if a driver is issued a ticket for the same offense under the NY Vehicle and Traffic law:  fine, mandatory surcharge of $85.00, and three points assessed on your NY DMV driver abstract.

Albany Lawyer writes a post indicating that red light cameras actually increase accidents, citing several studies on the issue here.  Good food for thought - are our politicians looking out for our safety, or is this just a revenue grab?

The New York DMV has announced it has improved customer service with its on-line “RightNow” deployment:

“Thanks to RightNow, NYDMV has done more than just meet these challenges. The agency has significantly exceeded its original efficiency goals and is now delivering superlative service via phone, email, and the web. In fact, NYDMV now answers 97 percent of knowledge base users’ questions automatically via web self-service—and, as a result, has reduced email workloads by 75 percent. Phone and in-office workloads have also been reduced.

“RightNow has enabled us to provide our web customers with outstanding ‘Help Yourself’ service that has yielded eye-opening results,” said New York State DMV internet customer relations manager George Filieau. “We’ve also found that the more you help your customers online, the more you wind up helping yourself.”

Details here

Interesting post by the Buffalo Pundit blog on the issue of installing Red Light cameras at key intersections in the Buffalo, NY area.  Researchers at the University of South Florida College of Public Health found that these cameras are a safety risk for drivers. A local radio station is organizing a protest today.

It is said that in Rochester, NY there are two seasons - Winter and construction.  With the construction season upon us, there are portions of our local expressway, 490, back under construction with the requisite lane reductions and orange cones.  The construction zones last for several miles.  Accordingly, the speed limit has been reduced to 45 mph from the normal 55 mph.

Clients have been calling with similar fact patterns.  They were issued speeding tickets in these construction zones by the NY State Troopers.  Not only are the fines doubled, but the cited speeds are high enough to trigger the mandatory NY Driver Assessment Fee.  However, because these violations occured within the City of Rochester, they will be heard in the NY DMV Traffic Violations Bureau (TVB). 

The TVB handles non-criminal moving violations in the cities of Buffalo and Rochester, the five boroughs of New York City, and portions of the Towns of Babylon, Brookhaven, Huntington, Islip and Smithtown in Suffolk County.  The problem with the TVB is that it offers NO REDUCTIONS to traffic violations.  Clients must plead “guilty” or go to trial if they choose to plead “not guilty”.  “Not guilty” pleas must be mailed within 15 days of the recorded violation date.  On-line pleas are also accepted here.

Trials are heard in front of an Administrative Law Judge (ALJ) who has the authority to find the defendant guilty or not guilty of the offense, set a fine, and the ALJ can suspend or revoke a driver’s license when required by law or if the ALJ believes it is in the interest of public safety.  The evidence of guilt must rise to a “clear and convincing” standard.  The officer who wrote the ticket is required to appear and testify for a finding of guilt.  The defendant has the right to testify, produce witnesses, documentation and have an attorney present.

The bottom line here is to use extra caution and common sense when driving within construction zones.  If you are driving in an area that is subject to the TVB, use extra, extra caution.

A Buffalo man recently applied for an “enhanced” New York State driver’s license which is designed to make crossing the US/Canada border more secure.  However, he was “shocked” to find someone elses photo on his license.  Details here.

A typical client just called me at the office with a familiar tale.  After being pulled over for a minor speeding ticket, she’s been arrested and charged with a misdemeanor Aggravated Unlicensed Operation of a Motor Vehicle.  Further, she is adament that she did not know her New York driver’s license had been suspended quite some time ago.  Apparently, she has moved several times in the last few years when she was a college student and did not notify the NY Department of Motor Vehicles of her current address.  The law states that the DMV must be notified of any permanent address change within 10 days.  NY DMV FAQ  Her suspension occurred when she failed to pay an old speeding ticket.  The DMV was notified by the Court and sent her a suspension notice at the last known address on file.  She stated she never received it and continued to drive without knowing she was suspended.  There are several legal issues involving how the prosecution can prove that the suspension notice was sent by the DMV.  See, People v. Pacer  This will be the subject of a later post.

Aggravated Unlicensed Operation (AUO) is set forth in Vehicle and Traffic Law section 511 as follows:

AUO 3d: a person is guilty of AUO 3d when the person …”knowing or having reason to know” that person’s license is suspended, revoked or otherwise withdrawn by the DMV.  This is a misdemeanor and punishable by a fine of $250-500 or up to 30 days in jail.

AUO 2d: a person is guilty of AUO 2d when that person commits AUO 3d and i) has a prior AUO 3d in the last 18 months; or ii) suspension is based on refusing to submit to a chemical test per VTL 1194, finding of consuming alcohol per VTL 1192(a) (DWAI), or a conviction of VTL 1192 (DWI); or iii) if suspension was a mandatory suspension pending prosecution for a charge of violating VTL 1192 (DWI); or iv) person has in effect 3 or more suspensions, on 3 different dates for failure to answer, appear, or pay a fine.  This is a misdemeanor punishable by a fine of $500 - 1,000 and 7 to 180 days in jail or probation.

AUO 1st: a person is guilty of AUO 1st when that person commits AUO 2d while under the influence of alcohol or drugs or commits AUO 2d and has 10 or more suspensions on 10 or more different dates.  AUO 1st is a Class E felony.

So, back to my client.  In the majority of cases I’ve handled with similar facts, the Court and prosecutor will want the defendant to resolve the underlying offenses/charges which led to the suspension.  Most Courts will allow sufficient time for the defendant to obtain the funds to pay the fines and surcharges.  In one recent case, a very patient Judge allowed my client over 5 months to do so - he had a very long list of unpaid fines.

Once the defendant is able to show the Court a “clean abstract” or driving history, the typical offer or reduction in these cases is to a VTL 509, Unlicensed Operation, which is not a criminal charge, and resulting in a fine by the Court.

In the above matter, my client will have to be in Court for several hearings before the Judge to resolve the matter.  And yes, she has updated her address with the NY DMV.

I’ve been handling many speeding tickets in the Stafford Town Court, Stafford, NY.  Most of these arise from speeding on the New York State Thruway, which is just north of Stafford.  The Truway is patrolled by the New York State police and most speeding tickets heard in Stafford are written by the troopers.  Like many rural Town Courts in NY, the troopers actually prosecute the speeding tickets - there is no assistant district attorney.  There are many arguments against this process from a defense perspective, but that is the practice in Stafford Town Court.

Because the posted speed limit on the Thruway is 65 mph, the majority of tickets written fall in the 76 mph and above category.  In Stafford, the Judges look at various factors to determine whether a reduction will be granted: a) was the speed below 86 mph; b) what is your driving history in the last 18 months; c) was there anything out of the ordinary that the trooper wrote in his notes regarding the stop.  In most cases, the reduction offered will be the iconic VTL 1110(A), Failure to Obey a Traffic Control Device, a two point non-speed violation.

All in all, I have found that both Judge Call and Judge Mancuso are fair and just in their adjudication of matters before them in Stafford.