New York Criminal Attorney Blog

If you’re stopped by the police in New York (Greenburgh, White Plains, Harrison, etc) for a traffic infraction such as speeding, should the police read you your “rights” prior to questioning you about where you coming from, if you had anything to drink or if you knew why you were stopped? When a person is arrested they lose certain rights. For example, when one is arrested, they lose their right to liberty and they are subject to a warrantless search incident to their arrest. In fact, a search incident to a lawful arrest is one of the many exceptions to the search warrant requirement.

However, while a person loses certain rights when they are arrested, they also obtain certain rights once they are arrested. For example, before the police can question a person who has been arrested they must read that person their “rights” – the police must “Mirandize” an arrested person before questioning.

There is absolutely no doubt that Uniform Traffic Tickets or Simplified Traffic Informations are also appearance tickets. See e.g., People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket deemed an appearance ticket); People v. Hollinger, 15 Misc. 3d 130A (App. Term 2nd Dept. 2007)(The front of the uniform traffic tickets directed defendant to appear in the Justice Court of the Village of Old Westbury on September 18, 2003, thus serving as an “appearance ticket” under CPL 150.10); Farkas v. State, 96 Misc. 2d 784, 787 fn 1 (N.Y. Ct. Cl. 1978)(Appearance ticket includes, by definition, uniform traffic tickets); People v. Litean, 2008 N.Y. Misc. LEXIS 5475, 240 N.Y.L.J. 33 (N.Y. Sup. Ct. 2008)(“A summons requiring a defendant to appear in court is the equivalent of a desk appearance ticket . . .”); People v. Genovese, 156 Misc. 2d 569, 571 (J. Ct. 1992)(“the yellow copy of the simplified traffic information is an appearance ticket as defined by CPL 150.10”).

Since People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) held that the detention of a person by the police for the purpose of issuing such person an appearance ticket creates an “arrest situation” justifying a search of such person just as if they had been formally arrested, doesn’t it follow that the police would have to Mirandize this so-called “arrested” person before questioning them? Why should the police get the benefit of deeming the person “arrested” so they can search them but not allow this “arrested” person the benefit of his Miranda rights just like any other arrested person?

One stopped by the police is clearly not free to go. In People v. Wallgren, 2011 NY Slip Op 51556U, (N.Y. County Ct. Aug. 16, 2011) the police officers testified at the probable cause hearing that defendant’s vehicle was driving erratically and they stopped it only to check on the driver’s “welfare.” However, as observed by the court, the officers were not concerned about the driver’s welfare but instead immediately launched into a DWI investigation:
Notwithstanding both officers’ testimony regarding the welfare
check, Officer Einsfeld, upon approaching the driver’s window,
asked whether the defendant was drinking prior to driving, where
the defendant came from and where the defendant was going.
These questions were clearly indicative of a DWI investigation,
not a welfare check and are designed to solicit incriminating
evidence from a motorist.

Furthermore, the police admitted that “when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person.” Id. The court therefore concluded that the police testimony established that the defendant was in custody from the very inception of the defendant’s encounter with the police: “By [Officer Einsfeld’s] testimony alone the custodial status of the defendant from the very inception was admitted by the police.” Id.

Continue reading "Are New York Police Required To Read A Driver Their “Miranda Rights” Before Questioning Them During a Car Stop?" »

Have you been charged in New York with “speed not prudent” by an officer who did not witness the alleged offense? Were you involved in an accident and then issued a ticket for an infraction by an officer who did not witness the accident? Judge Malone of the Justice Court of Mendon, New York, noted in People v. Genovese, that the practice whereby police officers in New York issue tickets for traffic infractions they did not witness occurs every day in lower courts across the State.

One of the most common scenarios is where an officer arrives upon the scene of an accident he did not witness and, after conducting an “investigation”, concludes that one of the drivers (or the only driver if it was a single car accident) had to be driving at a speed not reasonable and prudent and issues a traffic ticket to the “offending” driver charging him or her with violating VTL 1180(a) – “Speed Not Prudent” – which states that:

No person shall drive a vehicle at a speed greater than is reasonable
and prudent under the conditions and having regard to the actual
and potential hazards then existing.

This practice is wholly improper. First, as detailed above, a police officer cannot issue an appearance ticket for a traffic infraction not committed in his presence. Second, “[t]he mere happening of the accident because of the skidding of [driver’s car] did not warrant the conclusion that there had been negligent operation of a motor vehicle or that the statute had been violated.” Weisinger v. MacDuff, 285 A.D. 607, 611 (1st Dept. 1955). To be guilty of driving faster than is reasonable and prudent, the conduct of the driver must constitute more than mere error of judgment or simple negligence. People v. Benway, 41 Misc.2d 39 (1963) see also Hessney v. MacDuff, 284 A.D. 70, 72 (4th Dept. 1954)(Negligent operation of a motor vehicle may not be inferred merely because a car skidded or an accident happened); Fake v. MacDuff, 281 A.D. 630, 633 (4th Dept. 1953)(The fact that the car skidded or slid off the road does not, standing alone, even constitute ordinary negligence).

Continue reading "New York Speeding Tickets: Speed Not Prudent Charge Cannot Be Based Upon The Mere Happening of An Accident" »

If you are charged with Driving While Intoxicated [VTL 1192(2), (3)] in New York, the criminal defense attorney you choose can be one of the most important decisions of your life. Are you going to retain a “read-em-and-plead-em” hack, the lawyer who handled the closing when you purchased your home, the lawyer who drafted your Will or are you going to retain a lawyer well versed in the law, science and procedures associated with DWI cases?

Are you going to choose an attorney that has experience not just in DWI cases; but also in winning Driving While Intoxicated trials? Make no mistake about it, district attorneys and prosecutors know full well which attorneys are capable of actually taking a DWI case to trial. An attorney’s trial ability often plays a role in the plea bargaining offer. If your attorney has no trial experience, plea bargains all of his or her cases, always backs down at the last minute and accepts whatever offer the prosecution has made and has shown him or herself to be incompetent in the few hearings or trials he or she has done, the prosecutor has no real concern that the case will ever go to trial. If the prosecutor knows that in the end, your attorney will “plea you out” the prosecutor has no incentive to offer anything other than their standard policy offer.

Of course, accepting a plea bargain offer in certain cases is advisable. However, a detailed “risk/benefit” analysis must first be done. If the prosecution wants you to plead guilty to misdemeanor DWI with three years of probation and you’re a first time offender and the case did not involve any accident or injuries; their might not be any risk associated with going to trial because it’s very unlikely you would be sentenced to anything more than probation if you lost at trial.

A lawyer should not advise a client to accept a plea bargain unless that attorney has thoroughly investigated the case. That includes listening to, and investigating, not only a defendant’s claim of innocence, but the facts, circumstances and issues concerning probable cause to stop the vehicle, the legality of the roadblock, the administration of Standardized Field Sobriety Tests, the timeline of events, the officers involved, the administration of any breathalyzer testing, blood drawing, urine collecting and other issues that can arise in DWI cases.

In certain Driving While Intoxicated cases it might be advisable that the attorney visit the scene of the stop. The attorney might view the area where the defendant performed the Standardized Field Sobriety Tests. The attorney might even travel the route the defendant traveled prior to being pulled over. If the defendant claims he or she only had one or two drinks, credit card statements from the restaurant or other establishment where the defendant was prior to being stopped by the police might be helpful. Interviews with employees of the establishment where the defendant drank might reveal a witness to defendant’s drinking. Are their any witnesses to defendant’s driving?

Only after a searching and diligent review and investigation of the above factors as well as the relevant statutes, regulations and case law can an attorney render an opinion on a plea bargain offer. Most importantly however, the attorney who conducts the case review must be extremely knowledgeable and experienced in DWI defense. An attorney can spend countless hours reviewing and investigating all aspects of a Driving While Intoxicated case with zealous enthusiasm, however, if that attorney simply doesn’t know the laws, rules, regulations, case law, science, toxicology, breath testing, chemical testing, police procedures, etc., that lawyer’s opinion on a plea bargain offer will be no better than flipping a coin.

In a recent decision, the New York State Appellate Division unanimously affirmed a lower court ruling which granted a defendant’s motion to vacate his guilty plea in a Driving While Intoxicated case. The Court concluded that “[d]efense counsel failed to conduct any investigation, make any motions, or even view the video of defendant’s breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument.” People v Rivera, 2012 NY Slip Op 43, 1 (1st Dept. Jan. 5, 2012).
In support of its decision, the Court observed that there were defenses that should have been investigated including matters affecting the accuracy of the breathalyzer result. Furthermore, the Court explained that, because the defendant had no prior record and no accident occurred, it was extremely unlikely that he would have received a jail sentence had he lost at trial. Therefore, the “defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case.” Id.

The Rivera decision unfortunately does not indicate the sentence defendant received as part of the plea deal or what his Blood Alcohol Concentration was. In fairness to the attorney that represented defendant in Rivera, if his BAC was alleged to be, for example .16 or .17 and the plea offer didn’t require probation, than Rivera did receive some benefit. Specifically, he avoided probation, which can be difficult for some. For example, in Westchester, avoiding probation is a major consideration on DWI cases because DWI probation in Westchester County can be fairly onerous.

Nevertheless, the Rivera decision should put all defense attorneys on notice that it is unacceptable to advise a DWI client to plead guilty to the top charge without first conducting any real investigation into the strength of the prosecution’s case. The Rivera decision should also put everyone who is charged with DWI on notice that they should speak with several attorneys and get several opinions prior to retaining an attorney. And, the attorney they retain should be knowledgeable specifically with DWI cases.

Generally, if you are charged with Driving While Intoxicated and have no prior criminal history; there was no accident; no injuries; no property damage and there are no allegations that you were driving in an overly reckless or unreasonable manner, be very careful if your attorney recommends you plead guilty to the top charge with probation – be even more careful if your attorney makes such a recommendation very early in the case.

Continue reading "GUILTY PLEA IN NEW YORK DRIVING WHILE INTOXICATE CASE VACATED BECAUSE DEFENDANT’S ATTORNEY DID NOT PROVIDE MEANINGFUL REPRESENTATION" »

The New York State Legislature has acknowledged that CPL140.10(1)(b) prohibits an officer from making an arrest or issuing an appearance ticket for a traffic infraction not committed in his or her presence and has determined that there are only three specific traffic infractions where an officer should be allowed to arrest or issue an appearance ticket despite the fact that said infractions were not committed in the officer’s presence.

Specifically, the New York State Legislature has authorized an officer to arrest or issue an appearance ticket in lieu of arrest where the motorist leaves the scene of an incident involving property damage in violation of VTL 600(1) or leaves the scene of an incident involving injury to certain animals in violation of VTL 601.

Indeed, VTL 602 states in pertinent part that an officer may arrest “in case of violation of section six hundred and section six hundred one, which in fact have been committed, though not in his presence, when he has reasonable cause to believe that the violation was committed by such person.” Therefore, with regard to VTL 600(1) and VTL 601, both non-criminal traffic infractions, the Legislature has determined that officers may arrest or issue appearance tickets even where said infractions are not committed in the officer’s presence.

Additionally, the Legislature has authorized an officer to arrest where the motorist has committed the violation of Driving While Ability Impaired by alcohol in violation of VTL 1192(1) if the motorist was involved in an accident. The relevant statute, VTL 1194(1)(a) states in pertinent part:that a police officer may arrest a person, without a warrant in case of a violation of subdivision (1) of section 1192 of this article, "if such violation is coupled with an accident or collision in which such person is involved, which in fact has been committed, though not in the police officer's presence, when the officer has reasonable cause to believe that the violation was committed by such person."

Accordingly, only if a motorist is believed to have committed VTL 600(1); VTL 601 or VTL 1192(1) involving an accident can an officer arrest even though these non-criminal traffic infractions were not committed in the officer’s presence.The Legislature’s Exclusion of Some Traffic Infractions From The Precepts Of CPL 140.10(1)(b) Establishes An Irrefutable Inference That Those Not Excluded Were Intentionally Not Excluded

That an officer may not arrest for non-criminal traffic infractions not committed in his presence except where said infraction is for violating VTL 600(1); VTL 601; and VTL 1192(1) involving an accident is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York Statutes 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.).
The New York Legislature has in fact judicially created several exceptions to the general rule found in CPL 140.10(1) which prohibits an officer from making an arrest or issuing an appearance ticket for non-criminal traffic infractions not committed in his presence. These express exceptions created by the legislature pertain to violations of VTL 600(1); VTL 601 and VTL 1192(1) involving an accident.

It must be noted however that the Legislature did not except any other non-criminal traffic violations from the precepts of CPL 140.10(1). Therefore, under New York Statute 240, there is an irrefutable inference that the Legislature purposely chose not to exclude any other non-criminal traffic infractions from the precepts of CPL 140.10(1)(a).

Continue reading "Appearance Tickets In New York: New York Has Carved Out Only Three Specific Exceptions Which Allow An Officer To Arrest A Person For A Traffic Infraction Not Committed In the Officer’s Presence" »

New York's "move over" law was expanded starting at the beginning of this year (January 1, 2012) making it applicable to not only emergency vehicles that are stopped on the side of the road but now to "hazard vehicles". The law, which originally went into effect last January originally only covered "emergency vehicles" those vehicles which are displaying either a red light or a combination of red and white lights such as a police, fire or emergency medical vehicle. Now, as of this year, the law also applies to "hazard vehicles" those vehicles which display one or more amber lights such as tow trucks, road service vehicles and highway crews.

New York Vehicle and Traffic Law Sec 1144-a requires that drivers on a limited-access highway or parkway to exercise "due care" when approaching an emergency or hazard vehicle and defines due care as requiring at a minimum that the driver move from the lane adjacent to the shoulder where the emergency or hazard vehicle is stopped. In other words if the emergency vehicle is stopped on the right shoulder and you are driving in the right lane, you must move over to the center lane as you pass the emergency or hazard vehicle. Since moving over is not always possible on busy New York highways, the law does set the condition that you should move over only if it complies with other New York Vehicle & Traffic Laws such as moving from lane unsafely under V&TL 1128 and disobeying a traffic control device under V&TL 1110. In other words, if it is not safe to do so you or it is otherwise illegal to move over you should not. Rather, in that case you should slow down.

Violating the new "move over" law is a traffic infraction under New York Law punishable by a fine of $150, 2 points on you license and up to 15 days in jail although it should be emphasized that jail in not a likely possibility and that the points have been improperly reported in the media. The points count toward suspension of your driver's license and/or the driver responsibility assessment.

Motorists should be warned that when section 1144-a originally went into effect last year the police were very aggressively enforcing the new law. We fully anticipate that the police will be aggressively enforcing all of the new provisions of section 1144-a. In addition motorists need to exercise extreme caution when they attempt to move over. The purpose of the law is safety and changing lanes create another risk. Vehicle and Traffic Law section 1144-a makes clear that you must observe all other Vehicle and Traffic Laws including but not limited to using your turn signal, changing lanes safely, complying with lane markings, signs and speed restrictions.

Continue reading "NEW YORK'S "MOVE OVER" LAW JUST EXPANDED" »

In New York there are two different Driving While Intoxicated charges. Driving While Intoxicated under VTL 1192(3) is based upon the officer’s opinion that a motorist is intoxicated. This charge has nothing to do with one’s Blood Alcohol Concentration (BAC) and is referred to as common law DWI. The other Driving While Intoxicated charge in New York is based solely upon one’s BAC being at or above .08 as determined by a chemical test such as a breathalyzer type test and is found at VTL 1192(2).
When one is charged under VTL 1192(2) based upon a BAC of .08 or above, the allegation of a BAC of .08 or above must be supported by non-hearsay evidence. What is called the accusatory instrument will be deemed insufficient if the allegation regarding the .08 BAC is not supported by non-hearsay evidence. In other words, it is insufficient for one officer to allege that the defendant’s BAC was .08 unless that officer administered the test or witnessed the test.
For example, in People v Bonner (Lisa), 31 Misc. 3d 142A (App. Term 2nd Dept. 2011), the Court found the Information (accusatory instrument) insufficient where Officer
Montemurro alleged that defendant’s breath test result revealed a .16% BAC but he did not state that he had administered the test, or observed the test being conducted. Furthermore, the Intoxilyzer 5000 printout card which had allegedly been annexed to the information for the breathalyzer test result included the signature of another officer who had conducted the breathalyzer test. Further, the printout that was signed by another officer did not attest to any personal knowledge nor was it properly verified.
Accordingly, the Court found that the lower court should have granted defendant’s motion to dismiss because “[t]he information did not set forth nonhearsay allegations which, if true, established every element, and defendant's commission thereof, of the offense charged.” Id.

Continue reading "Driving While Intoxicated Per Se In Violation of VTL 1192(2): Sufficiency of Information: Information Must Contain First-Hand, Non-Hearsay Evidence Regarding Breath Test Result" »

Capping an unbelievable three weeks, New York Criminal Defense Firm, Tilem & Campbell plea bargained three cases with truly remarkable results. While, Tilem & Campbell has successfully gone to trial and won many criminal cases, it does not always take a trial to get a successful outcome in a criminal case. With experience and expertise the lawyers at Tilem & Campbell are often able to negotiate truly spectacular deals for their clients. Having two former prosecutors obviously helps.

In the first case resolved in late June, our client was charged with shooting at an individual with an illegal handgun. The client was charged with felony Reckless Endangerment and Criminal Possession of a Weapon in the Second Degree, both felonies. On the Weapons charge the client faced a prison sentence of 15 years in prison with a mandatory minimum of 3 ½ years in prison. On the Reckless Endangerment in the first degree charge the client faced up to 7 years in prison. After months of litigation and negotiation, the client pled guilty at the end of June to a class “B” misdemeanor with no jail, no probation and only a conditional discharge. The “B” misdemeanor the client pled guilty to was an Attempt to Commit the Crime of Criminal Possession of a Weapon in the Fourth Degree.

In the second case resolved just two days ago, the client was charged with the felony of possessing 4 illegal guns in Rennselaer County, New York. In New York, possession of 3 or more illegal guns elevates the crime to a class “D” felony, punishable by up to 7 years in prison. The firm was able to negotiate a plea bargain for this client in which he pled guilty to a “B” misdemeanor and again received no jail, no fine, no probation but just a conditional discharge. In addition, the Judge signed a “Certificate of Relief From Civil Disabilities” which is a certificate that relieves the holder of all bars to employment that may be imposed by law as a result of a criminal conviction.

Yesterday, in the third case, it was our client’s second DWI and he refused to take the breathalyzer test. In addition to the DWI tickets he was issued a total of 42 points in tickets for traffic offenses including Reckless Driving, Speeding, Going the Wrong Way on a One Way Street, Passing a Red Light and many more. In addition to the revocation for a conviction for DWI and the Refusal, the client faced a loss of his driving privileges for having more than 10 points and the Driver Responsibility Assessment for 42 points is $3000 plus fines and surcharges. Yesterday he pled guilty to Driving While Ability Impaired by alcohol which is a traffic infraction not a crime like Driving While Intoxicated. All the other moving violations were dismissed and he pled guilty to one 2 point ticket. That’s right 42 points were reduced to only 2 points. The fines and surcharges which could have been thousands of dollars only totaled $745.

While each case is different and results may vary from County to County, Court to Court and based upon the very specific facts of each individual case. These results demonstrate that great legal representation can help you achieve an exceptional outcome in your criminal case.

New York Traffic Ticket lawyers are monitoring New York's recently enacted Texting While Driving Law which was made tougher this week after a new law signed by governor Cuomo went into effect. The new law makes Texting While Driving a primary enforcement statute. This means that a police officer may stop a vehicle because the driver is observed violating this statute. In the past, a police officer could only stop a vehicle for a reason other than texting while driving and then issue the summons for Texting While Driving if there was probable cause to believe that the operator also committed an offense under New York Vehicle & Traffic Law (VTL) 1225-d. .

While New York VTL 1225-d is usually referred to as New York's Texting While Driving Statute it punishes a broad range of conduct that does not involve texting or even using your cell phone. For example the statute is entitled "Use of Portable Electronic Devices" and defines portable electronic devices as any: hand-held mobile telephone (cell phones), PDA (personal digital assistant), handheld device with mobile data access (such as a IPAD, IPOD, or Tablet or GPS), laptop computer, broadband personal communication device, pager, two-way messaging device, electronic game, or portable computing device. This list seems like it would encompass pretty much any electronic device you can conceive of including devices that are commonly used in cars such as I-Pods and navigation devices.

In addition, if you simply are holding the device while viewing it that is considered viewing and there is a presumption built into the statute if you hold the device while driving in a "conspicuous manner" you are presumed to be "using" the device. This all means that simply holding any electronic device in your hand while driving can cause you to receive a three point ticket punishable by a fine of up to $150 plus a surcharge of a minimum of $80 for a total of $230. Plus there of course exists the possibility of insurance surcharges or increases and if you accumulate 6 points, additional fees under the Driver Responsibility Assessment.

The only two exemptions in the statute are for communicating with emergency service personnel in an emergency and of course for police, fire and ambulance personnel in the performance of their duties.

The bottom line of this new law is that the statute is broad and written to punish a wide range of conduct of which the public has not been informed. I predict that law enforcement will issue large numbers of tickets under this section and the state as a result will make a large amount of money. While I see signs all over New York warning us not to Text While Driving, I have heard or seen nothing about the broad range of conduct encompassed in this law.

If you, a friend or family member receives a ticket under VTL 1225-d please contact this office for a free telephone consultation.

Did you receive a ticket for a traffic infraction such as speeding, red light or tailgating that is returnable to the Bedford Town Court? The attorneys at Tilem & Campbell can represent you in court for a flat, one-time fee of $195. Our lawyers are experienced in all aspects of traffic ticket defense and in most cases you will not have to appear in the Bedford Court with us. While past results don’t guarantee a particular outcome in your case, we have about a 95% success rate at getting traffic infractions returnable in the Bedford Court reduced or dismissed. Sometimes the court does require the driver’s attendance if the speeding ticket alleges a high speed (typically 90 mph or over). We sometimes see speeding tickets alleging high speeds on I684.

YOU MUST MENTION THE “SUMMER SPECIAL” THE FIRST TIME YOU CONTACT US TO RECEIVE THIS SPECIAL $195.00 FEE.

*Our $195.00 flat fee “SUMMER SPECIAL” expires August 31, 2011. The Summer Special fee only covers all traffic infractions except leaving the scene of an incident and DWAI. If you were issued multiple tickets at the same time, returnable to the same court on the same date and time, our fee for each additional ticket is $25. Therefore, if you received five tickets during the same stop, our fee to represent you would be $295.00. Criminal charges are not covered by the Summer Special fee. The fee must be paid and received by Tilem and Campbell before midnight on August 31, 2011. Should you wish to retain Tilem & Campbell to represent you on a traffic infraction, we will provide you with a written engagement letter which will set forth the terms of our agreement. That retainer agreement will control our agreement.

For more information contact us at 1-877-377-8666 or visit us on the web at www.DrSummons.com.

If you received a speeding ticket in the Village of Bronxville, the lawyers at Tilem & Campbell are offering a Summer Special fee of just $195.00 to represent you. Our attorneys are experienced in all traffic related matters (speeding, red light, stop-sign, school bus, etc) and have handled thousands of traffic infraction cases throughout the State of New York. Most times you will not have to appear in court with us.

While our past performance does not guarantee a favorable outcome in your case nor can we guarantee a result, we have successfully obtained reductions or dismissals in approximately 98% of the Westchester County traffic infraction cases we have been retained on. Some of the factors that affect the outcome of your case are (1) the seriousness of the charge (don’t expect a great deal if you were doing 95 mph on the Bronx River Parkway); (2) the officer who issued the ticket; (3) the judge; (4) your driving record; and (5) your attitude with the cop when pulled over. Having a “you don’t know who I know” attitude with the Officer certainly can make plea negotiations more difficult.

Our $195.00 Summer Special ends August 31, 2011 and applies to all New York traffic infractions except leaving the scene of an incident and Driving While Ability Impaired [VTL 1192(1)]. You MUST read the Terms for all details and you MUST mention this "Summer Special" Promotion in your FIRST contact with us to receive this special $195.00 price. For more information you can contact us toll free at 1-877-377-8666 or visit us on the web at www.DrSummons.com.

Bronx ADA Jennifer Troiano who was arrested in August for DWI apparently had two prior driving incidents, one of them involving DWI according to an article published in the Daily News this week. The first incident in 2005 led to the suspension of NYPD Detective Jose Arroyo who was allegedly asleep in the passenger seat when Troiano was involved in some kind of accident and left a bumper and license plate at the scene. In 2009, Troiano was allegedly arrested for DWI but the arrested was voided because she was a prosecutor according to the Daily News Article.

Jose Arroyo was later convicted of Rape and is currently serving a 15 year prison sentence according to the Daily News Article.

The arrest of Troiano and the uncovering of the voided arrest from 2009 has uncovered a large ticket fixing scandal involving Bronx Police Officers. More than 40 police officers are expected to be indicted by a Bronx County Grand Jury according to the Daily News. This could affect hundreds of cases in which indicted police officers made arrests.

New York VTL §600 requires that anyone operating a vehicle who is involved in an incident involving that vehicle that knows or has reason to know that damage was caused to property or injury was caused to a person to stop and exhibit their information at the scene of the incident. The question is exactly what do you exhibit? What must you show and What information must be exchanged in order to avoid being charged with Leaving the Scene of an Incident in New York.

New York Vehicle and Traffic Law §600 clearly defines which information must be exchanged, as follows:
1. Name,
2. Address, including number and street,
3. Insurance carrier
4. Insurance identification information including the number and effective dates, and
5. License number

In addition, the statute requires you to physically exhibit your insurance identification card and driver's license.

In the event of injury to a person you are not only required to exchange the information with the injured person but also to report the incident to the police "as soon as physically able."

By following these procedures, a motorist should be able to avoid a serious charge for Leaving the Scene of an Accident or Incident. If you have any questions about these procedures, contact the law firm of Tilem & Campbell for more information.

New York criminal law firm Tilem & Campbell has just added a new Leaving the Scene of an Accident page to its already extensive website.

Leaving the Scene on an Incident (as its called in New York Vehicle & Traffic Law §600) cases in New York can be among the most serious cases faces drivers since Leaving the Scene of an Accident involving Serious Physical Injury or Death can result in felony charges. This is true even if the accident or incident was not the operator's fault. If the incident involves a death the operator faces a 7 year prison sentence upon conviction for a class "D" felony and if the incident involves serious physical injury but not death the driver faces up to four years in prison upon conviction for a class "E" felony.

Even Leaving the Scene involving a minor injury can result in a misdemeanor criminal charge and a jail sentence of up to a year and leaving the scene involving property damage can result in a conviction for a traffic infraction and three points on your license.

In a future blog will discuss what information must be exchanged in order to avoid a charge of Leaving the Scene of an Incident.

If you or a loved one has been charged with or is suspected of Leaving the Scene of an Incident (or Accident) contact one of our experienced criminal defense lawyers to discuss your rights and options.

In New York State, prior to 1969, all traffic tickets were handled in the criminal court for the particular jurisdiction where the traffic infraction (speeding, stop sign, red light, etc) allegedly occurred. In 1969, the New York State Legislature enacted Article 2-A of the Vehicle and Traffic Law, which authorized the administrative adjudication of traffic infractions in cities with populations in excess of one million people. In 1972, the population requirement was lowered to 275,000. The population requirement is currently 200,000. In other words, cities in the State of New York with a population of more than 200,000 can “opt” into the Department of Motor Vehicle’s Traffic Violation Bureau (TVB) system thus adjudicating traffic infractions administratively instead of in their respective criminal courts.
Currently New York City, Rochester, Buffalo and certain parts of Suffolk County utilize the TVB administrative system. Therefore, if you are issued a ticket in those jurisdictions, your case will be handled by the TVB and determined by an administrative law judge.
Just like in criminal court, the burden of proof in a TVB hearing is upon the People (the prosecution). However, the burden proof is lower in a TVB proceeding than in criminal court. Indeed, the burden of proof for one to be convicted at a TVB hearing is “clear and convincing evidence.” VTL 227(1). However, the burden of proof for one to be convicted of the very same traffic infraction in a criminal court is “beyond a reasonable doubt.”
In Rosenthal v. Hartnett, 36 N.Y.2d 269 (1975), the Court of Appeals held that it was constitutional for the Legislature to authorize the administrative adjudication of traffic infractions and to utilize the “clear and convincing evidence” standard of proof in such administrative proceedings instead of the “beyond a reasonable doubt” standard. Id at 272-273. The utilization of the “clear and convincing evidence” standard in the TVB does not deny a defendant due process of law because the TVB cannot impose a term of imprisonment which would trigger the “beyond a reasonable doubt” standard. Id at 273.
If you have been charged with a traffic infraction such as speeding in New York City or other jurisdictions that adjudicate traffic infractions administratively through the TVB system, click here for more information. You can also call us toll free for a free telephone consultation at 1-877-DR-SUMMONS (1-877-377-8666) or visit us on the web at www.DrSummons.com.

In New York, unless your traffic ticket is returnable to the Traffic Violations Bureau, you will most likely be offered a chance for you or your traffic court attorney to conference your ticket with the prosecutor. At this conference the prosecutor usually offers to reduce the charge to something with less points in return for you agreeing to waive your right to trial. Most times the prosecutor on a traffic ticket is the officer who issued the ticket or another officer from the same police agency. However, the New York State Police have an internal policy forbidding state troopers from plea bargaining tickets they issue. Therefore, many towns, villages and cities have hired “special” prosecutors to prosecute tickets issued by state troopers. These “special” prosecutors are not bound by the New York State Police “no plea” policy.
One individual who is absolutely not allowed to unilaterally reduce a traffic infraction or enter into plea negotiations with the defendant is the judge. A judge is not allowed to plea bargain even if you are charged with a criminal offense. In Matter of Reedy, the son of Justice James H. Reedy received a speeding ticket returnable to J. Reedy’s court. Following correct protocol, J. Reedy recused himself from the case and asked a judge in a neighboring jurisdiction to accept the transfer of the case. At that point J. Reedy should have taken no further action. He should have taken the steps necessary to transfer his son’s speeding ticket case to a neighboring jurisdiction and let that jurisdiction proceed as they would with any other speeding ticket.
However, J. Reedy contacted the other judge, told him that his son was represented by an attorney and that an Assistant District Attorney had offered to reduce the speeding charge to VTL 1202(a)(1) which is a no point parking type violation. The other judge agreed to the plea bargain offer and indicated the fine would be $25.00.
At the request of J. Reedy, the other judge picked up the ticket and the fine money from J. Reedy’s home. The ticket had been signed on the back by J. Reedy’s son. The reference to the speeding violation [VTL 1180(d)] had been crossed out and “VTL 1202-A1” had been hand written in the space provided for the judge to indicate what charge the defendant was ultimately convicted of. Id at 301.
It was later learned that the state trooper who issued the ticket did not make the changes on the ticket nor did he consent to the reduction. Id at 302 (Note: In 1985 when this case occurred, state troopers did routinely prosecute and plea-bargain the tickets they issued. Only recently did the state police start enforcing their “no-plea” policy.).
Judge Reedy was ultimately found to have engaged in “ticket fixing” by the State Commission on Judicial Conduct and the Commission recommended his removal from the bench. The New York Court of Appeals accepted the Commission’s removal determination noting that the state trooper never authorized or agreed to the reduction. The Court of Appeals determined that “Ticket-fixing is misconduct of such gravity as to warrant removal . . .” Id.
If you have been issued a traffic ticket for any traffic related offense (speeding, red light, stop sign, etc) anywhere in New York state, you should consider hiring attorneys experienced with plea bargaining and defending such charges. Feel free to contact us for a free telephone consultation at 1-877-377-8666 or visit us on the web at www.DrSummons.com.

Tilem & Campbell senior partner Peter H. Tilem was quoted in today's New York Times in the article about the Federal Investigation into the tragic bus crash that killed 15 people over the weekend. There has been much speculation about whether or not the driver will be charged with a crime in connection to the deadly accident and the Times sought advice from two former prosecutors who have been involved in these types of cases.

The issue will boil down to whether the bus driver's conduct leading up to the fatal crash rose to the level of criminal negligence or recklessness according to Mr. Tilem who reportedly told the Times that just falling asleep at the wheel without more usually wouldn't rise to the level of either criminal negligence or recklessness. Mr. Tilem also told the times that it is usually a combination of factors such as weaving, speeding and driving after a long period without rest that could combine to make it possible for prosecutors to charge the driver.

To rise to the level of Recklessness, a person must be aware of and consciously disregard an unjustifiable and substantial risk. To rise to the level of Criminal Negligence a person must fail to perceive an unjustifiable and substantial risk. In both cases the risk must be so grave that the failure to perceive it or the conscious disregard of the risk constitutes a gross deviation from the standard of care that a reasonably prudent person would observe in a given circumstance.

The difference between the two, while subtle, can result in a huge difference in criminal charges. For example recklessly causing death can result in a conviction for Manslaughter in the Second Degree which is punishable by up to 15 years in prison and causing death by criminal negligence can result in a conviction for Criminally Negligent Homicide which is punishable by up to 4 years in prison.

Peter H. Tilem is currently a partner in the law firm of Tilem & Campbell and is a former homicide prosecutor in the New York County District Attorney's Office. You may contact him through the firm's website.

If you are issued a speeding ticket in New York City, your case is not handled in a criminal court (as it would be if were issued a speeding ticket in Westchester County). Instead, your case will be heard by the Traffic Violations Bureau of the Department of Motor Vehicles (TVB). Cases heard by TVB are not criminal but instead are considered administrative proceedings. An experienced traffic court attorney can explain the difference between a speeding ticket issued in New York City and one issued in a city such as Yonkers or White Plains in Westchester County.
Often, people we represent who are charged with speeding in New York City ask if we can obtain information about the particular radar or laser unit the police used to measure their speed. For examples, the operating procedures and testing history.
The answer is generally no. The CPLR, including its discovery provisions, is not applicable in cases heard by the Traffic Violations Bureau. 15 NYCRR § 123.1. In Miller v. Schwartz, 72 N.Y.2d 869 (1988) the New York Court of Appeals upheld the constitutional validity of this rule and held that there is no constitutional right to discovery in administrative proceedings. (Note: The TVB is not a criminal court; it is an administrative tribunal).
Therefore, if you are going to take your speeding ticket to trial in NYC (or any other jurisdiction that utilizes the TVB system) the only proof that you will have that the radar unit was used properly by the officer and was in proper working order will be the testimony of the officer. Of course, if you could obtain a user’s manual from another source, you could use that to cross-examine the officer.
For more information about this or any other New York traffic matter (including DWI) feel free to contact us toll-free at 1-877-377-8666 or visit us on the web at www.DrSummons.com.

A new rule that went into effect this past Wednesday, elevated the penalties for Talking on a cell phone while driving VTL 1225 c(2). The new law raises the maximum fine to $150 but also imposes 2 points on a motorist's driving record. The points can result in higher insurance premiums, financial penalties from the Department of Motor Vehicles or suspension or revocation of your driver's license. New York traffic ticket attorneys are prepared to fight these new tickets.

New York's ban on talking on mobile phones while driving prohibits talking on phones without an attached hands free device. New York was the first state to impose such a ban which has been controversial since studies have shown that these laws fail to reduce accidents. The law as initially enacted carried a maximum $100 fine and no points.

This new law will encourage motorists to fight New York cell phone tickets since traffic court attorneys are often able to get 2 point violations reduced to no points or get them dismissed altogether. Under the old law, it rarely paid to fight a cell phone ticket.

Anyone who is issued a cell phone ticket is encouraged to contact this office for more information.

At Tilem & Campbell we handle traffic tickets throughout New York State. Knowing the rules helps us obtain the best results for our clients. In New York, when a defendant is charged in a criminal court with a traffic infraction such as speeding, he is entitled to a supporting deposition upon a timely demand. CPL 100.25(2). (Of course these rules do not apply to New York City Traffic Tickets which are not handled in a "criminal court".) However, when can a defendant request a supporting deposition? Can the defendant request the supporting deposition prior to the return date on the ticket? Can the defendant request the supporting deposition prior to actually being arraigned on the traffic ticket? In other words, can the defendant request the supporting deposition before he even enters his not guilty plea? As explained below, the answer is yes; a defendant may request the supporting deposition prior to the return date on his ticket and prior to his arraignment on the ticket.

Criminal Procedure Law sec. 100.25(2) formerly “expressly provided that a defendant is only entitled to a supporting deposition after he has been arraigned upon a simplified information (a traffic ticket). see People v Perry, 87 N.Y.2d 353, 355 (1996)

In Perry, the defendant was charged Failing to Yield The Right of Way to an Emergency Vehicle in violation of VTL 1144 – a traffic infraction. Thereafter, defendant’s attorney sent an “appearance letter” to the local court indicating that defendant was pleading not guilty and requesting a supporting deposition. The supporting was not served on defendant and his subsequent motion to dismiss was granted.

The case wound its way through the appellate process with the Court of Appeals ultimately reversing the dismissal and reinstating the ticket holding that defense counsel’s “appearance letter” did not constitute or eliminate the need for a formal arraignment. In 1996 when Perry was decided a defendant was only entitled to a supporting deposition after he had been “arraigned upon a simplified information.” See Perry, 87 N.Y.2d at 355 citing CPL 100.25(2)(1996).

Accordingly, the Court of Appeals held that a defendant who has not been properly arraigned “is not entitled to request a supporting deposition and any such request is a nullity.” Id. Applying this rule to the specific facts in Perry, the Court of Appeals concluded that because the defendant had not been properly arraigned at the time he requested the supporting deposition, his request failed to trigger the People’s statutory obligation to timely file and serve the supporting deposition.

However, shortly after the Court of Appeals decided Perry, the New York State Legislature amended CPL 100.25(2) to allow a defendant to request a supporting deposition after he has been “charged by” a simplified information (a traffic ticket) as opposed to “arraigned upon.”

In People v. Tyler, 1 N.Y.3d 493, 496 (2004) the Court of Appeals acknowledged and explained the 1996 amendment to CPL 100.25(2) which allowed a defendant to now request a supporting deposition after he has been charged by a simplified information. In other words, the way CPL 100.25(2) is written now, a defendant is entitled to request a supporting deposition as soon as he is “ticketed.”

In Tyler, the defendant was issued a ticket for speeding on April 21, 2002. The ticket directed defendant to appear in court on May 14, 2002. The ticket instructed defendant how to plead not guilty by mail; to check a box on the ticket if he wanted a supporting deposition; and to mail the ticket to the court within 48 hours. The court would then send defendant a trial notice. Id at 494.

The defendant filled out the ticket indicating he was pleading not guilty and checked the box to request a supporting deposition. However, instead of mailing the ticket to the court, on April 22, 2002 he hand delivered it to the court clerk. The clerk accepted the ticket with the not guilty plea and supporting deposition request then moved defendant’s appearance date up to May 1, 2002. Id at 495.

On May 1, 2002, defendant appeared in the local court and was formally “arraigned” on the ticket. He entered a plea of not guilty and restated his demand for a supporting deposition. Defendant received the supporting deposition on May 31, 2002. Id at 495. Defendant thereafter filed a motion to dismiss the ticket alleging that the supporting deposition was not served within the statutorily required 30 days of his initial request for it on April 22, 2002. Id.

Exemplifying a problem that is much too common in New York’s local court system, the local court in Tyler decided defendant’s motion in a manner completely opposed to the law. In fact, after reading the Tyler decision, it would be more than reasonable to conclude that the local court (1) simply didn’t know the law; or (2) knew the law but desired a certain outcome so it ignored the law.

In denying defendant’s motion, the local court construed CPL 100.25 (2) to preclude defendant from requesting the supporting deposition before May 14, 2002, the date he was originally directed to appear in court or, at the earliest, May 1, 2002, when he was actually arraigned and restated his demand for the supporting deposition. Id.

The County Court reversed the local court holding that defendant’s April 22, 2002 demand was proper and timely. The Court of Appeal agreed observing that CPL 100.25(2), as amended, “does not force a defendant to wait until arraignment to request a supporting deposition.” Id. Indeed, observed the Court of Appeals, the 1996 amendment to CPL 100.25(2) provides that a defendant may request a supporting deposition “when ‘charged by a simplified information.’” Id at 496 (emphasis in original). The defendant was “charged” when he was ticketed.

The lower court had decided defendant’s motion in Tyler as if the legislature had never amended CPL 100.25(2) as described above. Thankfully, the defendant in Tyler had the wherewithal to appeal the lower court’s erroneous ruling.

For more information about defending a traffic ticket (speeding, red-light, stop sign, etc) anywhere in the State of New York; supporting deposition issues or other traffic defense strategies, please contact us toll free at 1-877-DR-SUMMONS (1-877-377-8666) or visit my website at www.DRSUMMONS.com.

New York speeding tickets are a dime a dozen but the speed trap on the Henry Hudson parkway north between the George Washington Bridge and about 1/2 mile before the Henry Hudson Bridge is just inexplicable. The speed limit is 35 miles per hour in the vicinity of Fort Tryon Park while it is 50 mph on the identical stretch of highway heading south bound and 50 mph before and after this stretch between the George Washington Bridge and the Henry Hudson Bridge.

Without any explanation several months ago the speed limit signs were changed to 50 mph on this stretch of highway and then just as mysteriously went back to 35 mph within the last several days. Of course, the New York City Police are aggressively enforcing the new speed limit.

To add to the absurdity, the speed limit goes up to 50 mph about 1/2 mile before the speed limit suddenly drops to only 10 mph just before the Henry Hudson Toll Plaza.

If anyone has any explanation for this seemingly ridiculous speed trap please post a comment to this blog. I for one would love to know and so would the many motorists who received New York City traffic tickets in this area. In the meantime, if you drive on this stretch of New York City road be careful and pay close attention to the signs. A motorist who drives just 56 mph (believing that the speed limit is 50 mph) faces 6 points on their license if caught in this area. The 6 points brings all types of headaches such as the driver responsibility assessment and insurance headaches.

If you are ticketed in this area contact Tilem & Campbell or visit drsummons.com to learn about your options.

Tilem & Campbell managing partner John Campbell scored his fourth straight DWI trial victory this week when the Cortlandt Justice Court in Westchester County New York, acquitted his client of all charges which included DWI (VTL 1192(3), Aggravated Unlicensed Operation (VTL 511) and Speeding (VTL 1180). The defendant was facing a year in jail.

While the arresting officer testified to signs of the defendant’s intoxication, Mr. Campbell focused the defense on signs of the defendant’s sobriety and the defendant’s flawless operation of his vehicle. For example, on cross-examination, the arresting officer admitted that he followed the defendant for several miles and that there was nothing about how the defendant drove the vehicle that indicated he was intoxicated; that the defendant maintained his lane at all times; that he did not hit anything or drive erratically; that he safely pulled his vehicle to the shoulder and came to a safe stop. The officer also admitted that the defendant complied with all orders, produced his license, registration and insurance card without any problems and that he exited his vehicle with no problems. The only traffic violation the officer claimed to have observed was speeding.

The Court found that there was reasonable doubt as to whether the defendant was actually intoxicated. Further, the Court found that the defendant had no knowledge that his license was suspended. Finally, the Court found the defendant not guilty of the speeding charge because the arresting officer could not recall if there was a posted speed limit sign at the time he stopped the defendant.

If you have been charged with Driving While Intoxicated in New York, please contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit them on the web at www.888DWICOUNSEL.COM.

In March 2010, Tilem & Campbell senior partner Peter H. Tilem took a passing a steady red light summons to trial in Ardsley Village Court here in Westchester County. The offense was videotaped by the video camera behind the patrol car's rear view mirror. Yesterday, Ardsley Village Justice Walter Schwartz issued a written decision finding the motorist not guilty and dismissing the ticket.

The issue raised at trial by Mr. Tilem is under what circumstances a police officer may issue a ticket for passing a red light when the police officer does not view the same traffic light as the motorist but rather views that the light is green in the perpendicular direction. May the police officer infer that the light facing the motorist is red? It turns out that the answer is no, the Officer may not reach that inference and rather would be required to examine the light to make sure it was working properly.

In the Ardsley case tried last month, the police officer never inspected the light but rather testified in very conclusory terms that the light was "working properly." In addition, the police officer attempted to bolster his case by claiming that he saw the shadow of the red light from his angle, but that testimony was called into question when he admitted, during cross-examination by Mr. Tilem, that the weather was clear, that it was mid-day and that the cylinders over the lights were designed to prevent motorists from seeing the light from the side and becoming confused.

Justice Schwartz's decision in the case was consistent with a whole line of decisions on this topic from Courts dating back to as early as 1960.

Red light tickets carry a fine of up to $450 plus an $85 surcharge and 3 points on your license. They should be taken seriously since many insurance companies take them seriously. If you, or anyone you know has been issued a summons for any moving violation, take it seriously. Contact one of the lawyers at Tilem & Campbell or visit us on the web at drsummons.com.

New York criminal defense law firm Tilem & Campbell has noticed an increase in the number of client's charged in New York City with Reckless Driving under Vehicle & Traffic Law 1212. Reckless Driving is a serious offense in that unlike most traffic offenses, it is a misdemeanor, punishable by up to 30 days in jail. In addition, the New York Department of Motor Vehicles will assess 5 points on your driver's license and conviction can leave you with a permanent criminal record in New York.

It seems that these tickets are being given out for almost any conduct and judges seem reluctant to dismiss them. We are often seeing these tickets given in connection with a motorist that "squeals" their tires.

Tickets in New York City for Reckless Driving are returnable in the Criminal Court and not the DMV Courts that adjudicate traffic violations in the City of New York. While these tickets are extremely serious and not to be taken lightly, the lawyers at this firm have had overwhelming success getting these tickets reduced to non-point violations with small fines.

Any motorist who receives a Reckless Driving (VTL 1212) ticket should contact an attorney to discuss their options. Like any criminal offense, these tickets should be treated very seriously and can have very serious consequences.

The Town of Ramapo located in Rockland County New York is Rockland County's largest geographically and most populous town. The Town covers more than 61 square miles and contains 12 villages most with Village Courts of their own. With a very diverse population, the Town Court in Ramapo is both busy and efficient. With major roads traversing through the town and low density of serious crimes, it would be fair to say that speeding violations are the bread and butter of the Ramapo Court, followed by other traffic violations such as tailgating, turn signal violations and stop signs.

Traffic misdemeanors (and felonies) such as DWI and Aggravated Unlicensed Operation (AUO) top the criminal calendar. Many of the traffic violations and traffic misdemeanors take place along such major roads as I-287, I-87, Rt 59 and the Palisades Parkway.

The Town had three Justices. Judges Arnold Etelson, Rhoda Schoenberger and Samuel Coleman. Judge Coleman recently retired, leaving the Town one judge short and the Court extremely busy. Expect crowded calendars and long lines on Court days. Experienced attorneys can often get you out quickly but without an attorney, expect to wait.

The Court is located at 237 Route 59, Airmont, New York 10901.
The Court can be reached at (845) 357-5100 Ext. 239 or you can E-Mail the Court Clerk Helen Travers at justicecourtclerk@ramapo.org

I previously discussed the New York Court of Appeals decision in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968) which held that an officer can issue a traffic ticket for a non criminal offense he or she did not witness. But the discussion does not end there. Unfortunately, many police officers, prosecutors and judges believe that Boback allows officers to issue tickets for non-criminal traffic offenses the officer did not personally witness that are as jurisdictionally sound as a ticket issued by an officer who actually witnessed the offense. This is simply not the holding of Boback.
The Boback decision noted that where an officer issues a ticket for a non-criminal traffic infraction that the officer did not witness, the ticket itself is insufficient to procure the defendant's appearance before the court. The Boback decision noted that should the defendant/motorist choose to ignore the summons and not appear on the return date of the summons, the court must take testimony or have before it affidavits which would establish probable cause before issuing an arrest warrant. One could argue therefore, that if they were issued a ticket for a traffic infraction not witnessed by the officer, they need not appear in court and that court may not suspend their license or take any other action against them until that court is presented with testimony or affidavits establishing probable cause.
For example, in People v. Genovese, 156 Misc.2d 569, 593 N.Y.S.2d 925 (Jus. Ct. Town of Mendon 1992), the Court held that it was improper for an officer to arrive at the scene of an accident he or she did not witness, decide who was at fault and issue a summons charging a non-criminal traffic violation. The Court held that an action charging a non-criminal traffic infraction could not be commenced by the filing of a simplified traffic information where the officer did not witness the offense.
If you have been charged with any traffic infraction, offense or misdemeanor such as speeding, Aggravated Unlicensed Operation, Driving While Intoxicated or other offense, call Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit us on the web at www.drsummons.com.

Generally, an officer may arrest a person when that officer has reasonable cause to believe that person committed a crime, whether in the officer’s presence or not. However, for an officer to arrest a person for a non-criminal offense, the offense must be committed in the officer’s presence. There are a limited number of exceptions to this law. (See CPL § 140.10).
This issue frequently arises when an officer arrives on the scene of an accident; interviews witnesses and determines that, for example, a motorist was speeding, traveling to closely, or changed lanes unsafely and issues a ticket accordingly. However, since speeding, traveling to closely or changing lanes unsafely are all non-criminal offenses (they are traffic infractions), can the officer issue a ticket even though the offenses were not committed in his presence?
I must say, I was surprised to learn that the answer is yes. First, the law says that an officer may not arrest for a non-criminal offense not committed in his presence. It says nothing about the issuance of a ticket. (See CPL § 140.10). Second, in People v. Boback, 23 N.Y.2d 189, 295 N.Y.S.2d 912 (1968), the Court of Appeals held that a traffic ticket may be based upon “information and belief”. That means that an officer need not have personal knowledge of the traffic infraction – he or she need not actually witness the traffic infraction.
Therefore, if you had an accident, the officer who arrives on scene could issue you a ticket for unreasonable speed even though that officer didn’t personally witness you driving the vehicle or the accident. However, unlike a ticket issued by an officer based upon his or her direct observation of the traffic infraction, where an officer issues a ticket based upon “information and belief” developed from interviewing witnesses, those witnesses would have to appear and testify in court. Unless the officer or other witnesses called by the prosecution was an accident reconstruction experts that could offer expert testimony as to your speed, eyewitnesses would have to give testimony at trial. The point is, if the officer doesn’t witness the traffic violation, other eyewitnesses or experts will be needed by the prosecution to convict you. (See for example, People v. Genovese, 156 Misc.2d 569, 593 N.Y.S.2d 925 (Justice Court 1992)(holding that it is not proper for a police officer to arrive at the scene of an accident, take oral statements of all those involved, decide who and what to believe and then issue a uniform traffic ticket charging only an offense to one of the involved motorists)
For more information about any traffic related matter including speeding, driving while intoxicated or reckless driving, please call Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.drsummons.com.

New York criminal defense law firm Tilem & Campbell will launch a holiday season ad campaign directed toward those caught Driving While Intoxicated or violating other New York traffic laws. The campaign will advertise the Doctor Summons trade name which will ask potential clients to contact Tilem & Campbell through its 877-DR-SUMMONS toll free number and through its DRSUMMONS.COM website. The ad campaign coincides with the holiday season, during which the firm sees an increase in DWI, Aggravated Unlicensed Operation of a Vehicle, Speeding and other moving violations.

The ad campaign is designed to let motorists know that they can fight these types of charges and that in many cases they can fight traffic violations without the necessity of going to Court.

The Dr Summons name has been used by law firm Tilem & Campbell, for several years to give motorists an easy to remember toll free number and website in case they find themselves charged with a traffic violation or DWI. Tilem & Campbell has successfully handled thousands of traffic violation in New York State.

Those drivers who receive the new E-Tickets that police officers and New York State Troopers conveniently print from their police cars should take note that one judge is Oneonta has ruled that the tickets are not legal and recently dismissed an Aggravated DWI case as a result. Ruling in the case of People v. Nathaniel White, City Court Judge Lucy Bernier ruled that the actions of the police officers in entering the data into the computer are indistinguishable from mere word processing and therefore the tickets are not affirmed or sworn under penalty of perjury as required by law.

The White ruling conflicts with a 2005 ruling by a City Court judge in Rochester that described the process of filling out the electronic ticket troubling but found that the tickets were ultimately legal. In the Rochester case, the City Court Judge found that the supporting deposition which was signed rescued the defective traffic ticket. The White ruling however, is both lengthy and well reasoned and will likely be appealed. In the interim, New York Traffic Court lawyers and New York DUI attorneys will continue to fight this issue.

If you or any family member has been charged in New York with any DWI, Speeding ticket or other traffic infraction or traffic misdemeanor investigate your rights. Contact one our experienced attorneys for a free over-the-phone consultation.

Starting November 1, 2009, New York drivers will have another good reason not to text while driving, it will become illegal, a traffic infraction under New York Law. New York's new texting while driving law is going into effect Sunday and there is little doubt that police and other law enforcement officers will be looking for those who are texting while driving. The new law is subject to secondary enforcement which simply means that a motorist must commit and be stopped for another offense such as speeding, passing a red light, turn signal violation or a similar moving violation before they can be ticketed for texting while driving.

The New York texting while driving law carries no points but a fine of up to $150 can be imposed on first time violators. A recent study found that a driver who was texting while driving was 23 times more likely to be involved in accident than a driver who is not texting. While the law seems like a good idea, as I discussed on my recent television appearance on "Bronx Legal", the law seems like it is hard to enforce and hard to prove. Police cannot seize your phone and search it for recent texts without a search warrant. In addition, existing laws permit one to dial a telephone as long as a hands free device is attached. It seems that unless the motorist admits that he is texting, it would be very difficult to prove that a motorist is texting as opposed to dialing.

Anyone who receives a ticket under New York's new texting while driving law or for any other New York traffic violation should seek the advice of an experienced traffic court attorney.

New York defense lawyer Peter H. Tilem will appear on a television show called Bronx Legal tonight at 6:30 pm. The topic of the show tonight is New York's new Texting While Driving law and other common New York traffic violations. Although the television show will only air in the Bronx, it will be available in several days on the internet both at Bronxnet.org and at the Tilem & Campbell media page.

Peter Tilem is the senior partner at the White Plains based law firm, Tilem & Campbell. The firm handles a wide variety of criminal defense matters throughout the New York metropolitan area and handles traffic violations throughout New York State. Tilem & Campbell operate the website site DRSUMMONS.COM.

Many articles have been written about the numerous costs of paying traffic tickets. While New York traffic fines are high and surcharges that are imposed by the Courts have recently been increased, there are many hidden costs that New York Driver's need to be aware when deciding whether or not to fight their New York Traffic Ticket.

One such surprise is the New York Driver Responsibility Assessment covered in a past blog. In a nutshell, the New York Driver Responsibility Assessment imposes a fee, billed by the New York State DMV of $300 when you get 6 points on your license and $75 per point over 6. The fee is payable over three years.

Another hidden cost comes from your insurance company. According to an article published on the National Motorist Association website, one traffic violation can raise your insurance 20% per year for a period of three years. According to the article even if your insurance costs a modest $800 that works out to $480 over three years. The article further explains that a second offense in 3 years can result in a 40% increase which can cost you $1200 more just in insurance.

The article on the National Motorist Association website advises that you ". . . should fight every ticket - every time." [emphasis supplied]. The article also advises that "[e]ven paying for a lawyer is often well worth the expense. . ." and advises that for "most ordinary traffic cases - speeding, running a red light, etc. - a lawyer will want around $700 or so."

In these economic times, the advice of the National Motorist Association is worth heeding. Keep more money in your pocket. Know the hidden cost of paying a traffic ticket. Hire an experienced traffic court lawyer who knows how to fight tickets. For more information contact one of the attorneys at drsummons.com for a free consultation.

A recent change in New York Vehicle & Traffic Law sec. 1806 will make it much harder to fight traffic tickets in New York State. Prior to New York April 7, 2009, New York law made it clear that in most cases a person should only have to appear one time to fight a routine traffic infraction such as speeding, unsafe lane change or failure to signal. The Vehicle & Traffic Law made it clear that upon receipt of a "not guilty" plea from a motorist the Court was required to schedule the matter for a trial. On the trial date the motorist could plea bargain or proceed to trial. Judges who violated this rule faced sanctions from the Commission on Judicial Conduct. The Commission found that judges that set cases down for a "pre-trial" conference rather than trial were putting an unnecessary burden on motorists who would then feel coerced to plead guilty rather than appear in Court multiple times for a rather routine matter.

Well, the New York State Legislature and Governor decided that coercion was the best way to resolve New York traffic tickets and have now amended the Vehicle & Traffic Law to require Courts to send motorists an "appearance" date rather than a "trial" date. This law seems to require motorists to appear a minimum of two times to fight their traffic tickets.

Since New York State Troopers are not permitted to plea bargain their tickets and many localities do not have prosecutors to handle those tickets, we have to wonder both what the purpose is of holding such a Court appearance? and what would happen at that appearance?
In any case as noted by the New York State Commission on Judicial Conduct, this practice is likely to coerce many guilty please.

Motorists who receive tickets need to understand that experienced traffic lawyers can make these appearances without the motorist being present and can usually resolve these tickets with reduced or no points. Since experienced traffic lawyers generally handle several cases in a Court at one appearance they can offer very reasonable rates to fight tickets. Traffic lawyers can save the motorist from making multiple appearances, save the motorist money, save the motorist points, save the motorist the driver responsibility assessment and save the motorist from insurance increases.

If you wish to fight a ticket contact one of the experienced traffic court attorneys at DrSummons.com.

New York State traffic offenses such as speeding tickets, DWI's, Driving with a Suspended License and other driving infractions and crimes are getting more expensive. New York State already imposes surcharges totaling $85 for any traffic infraction over and above any fine. The total Surcharge is $80 in City Courts. However, the law imposed a cap, or maximum surcharge of $100 per incident which meant that if a motorist was convicted of multiple tickets the maximum surcharge could be $100. In a memo sent to all New York State City, Town and Village Courts, the Office of Court Administration has notified the Courts that effective for New York Vehicle and Traffic Law (VTL) offenses committed after July 6, 2009, the cap for mandatory surcharges was raised to $180.

The calculations are complex because over the years, as a way to increase revenue, New York has imposed an increasing number of fees on all types of convictions especially traffic violations. For example the $85 surcharge imposed on a routine traffic infraction such as speeding or passing a red light actually includes a $55 mandatory surcharge, a $5 crime victim assistance fee, a $5 town and village fee if the conviction is not in a City Court, and a $20 additional surcharge. The new $180 cap only applies to the mandatory surcharge and crime victim assistance fee. So if you are convicted of 10 routine traffic infractions, the surcharges will total $180 (the "cap"), plus $200 (the $20 additional surcharge 10 times) plus $50 (the town and village fee 10 times).

A conviction for a DWI can cost $400 just in surcharges. That's excluding the fine of between $500 and $1000. Even a conviction for Driving While Ability Impaired by Alcohol, a traffic infraction, carries surcharges of $260. Additionally, suspension lift fees (suspension termination fees) have gone up from $35 to $70 and the cap on these fees has doubled to $400.

The bottom line is that simply pleading guilty to and paying New York traffic tickets has gotten very expensive. Routine tickets can result in fines, surcharges, imposition of the driver responsibility assessment and insurance increases and/or surcharges. If you receive a traffic ticket contact an experienced New York traffic Court attorney or visit DrSummons.com.

Local, County and New York State Police begin their annual "click it or ticket" campaign today which means an increase in seat belt tickets across the State and the Region. The increased enforcement will take the forms of patrols and checkpoints and will likely lead to an increase in traffic tickets of all kinds. In addition to the New York State Police, County and local police in Westchester, Rockland, Orange Counties and beyond are expected to participate. The program is scheduled to last two weeks.

While Seat belt violations in New York carry no points and a fine of $50, it is important to remember that no seat belt or child restraint for a child less than 16 years of age carries 3 points per violation in New York. In addition, Police will be looking for other violations such as speeding, unsafe lane change, failure to signal and equipment violations as they patrol so drive carefully.
If you receive a traffic summons contact us DrSUMMONS.com or 877-DRSUMMONS

Unless your New York Traffic Ticket was issued in New York City, Buffalo and parts of Suffolk County you are entitled as a matter of law to a supporting deposition on all moving violations (including: speeding, red lights, tailgating, unsafe lane change and failure to signal) . You must however, ask for it.

As experienced New York traffic court lawyers, demanding a supporting deposition from the complainant/police officer is one of many tools in our arsenal to help us successfully fight traffic violations. While it is clearly not the right tactic in every case, it can be an effective, although procedurally difficult tactic.

New York Criminal Procedure Law § 100.25(2) provides that a defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to a supporting deposition of a complainant police officer and that upon such a request, a court must order the officer to serve a copy of the same within 30 days of the date such request is received by the court, or at least five days before trial, whichever is earlier. N.Y. CPL § 100.25(2).

Failure to comply with the order directing the service and filing of supporting depositions renders the traffic tickets for which they were demanded facially insufficient. CPL 100.40(2); People v. Titus, 178 Misc. 2d 687, 682 N.Y.S.2d 521 [AppTerm, 2d Dept 1998]). This failure divests this Court of jurisdiction to proceed on the simplified traffic information, a divestiture that cannot be "cured" by any attempted untimely service of the supporting deposition. People v. Aucello, 146 Misc. 2d 417, 558 N.Y.S.2d 436 (Appellate Term – Second Department 1990).

Furthermore, the plain language of CPL 100.25 (2) and CPL 100.40 (2) establishes that the designated 30-day period for supplying supporting deposition runs, not from the date of the order directing compliance with a defendant's demand, but from the date the demand is received by the court (see CPL 100.25 [2] [13]; cf. CPL 100.40 [2]; and see People v. Titus).
Moreover, a court may not grant an adjournment to allow the People to furnish a supporting deposition after the 30-day deadline. Rather the statute sets an absolute time, which may not be altered. People v DeFeo, 77 Misc.2d 523, 355 N.Y.S.2d 905 (App Term, 2d Dept. 1974)(Defendant who requested a supporting deposition had an absolute right under statute to a supporting deposition before commencement of trial for speeding, and court's offer of an adjournment for purpose of furnishing deposition could not cure defect and thus information was insufficient on its face requiring that it be dismissed).

If you have received a traffic ticket for any traffic related matter, you might consider demanding a supporting deposition. However, an experienced attorney familiar with the attitudes of the particular court and officer you are dealing with could better guide you with your decision to request a supporting deposition. In some courts, favorable plea bargains are readily available and requesting a supporting deposition might simply annoy the judge, prosecutor and officer. In addition, a person demanding a supporting deposition must make a timely motion for dismissal.

For more information contact Tilem & Campbell at 1-877-DR-SUMMONS or visit us on the web at www.DrSummons.com.

Nassau County Police have announced an initiative targeting "aggressive drivers" on Nassau County roads, beginning tomorrow. While details of the initiative have not been released the program is likely to result in the issuance of additional tickets for such New York traffic violations as speeding, tailgating, passing a red light, unsafe lane change, failure to signal, unsafe passing, the failure to obey traffic control devices and failure to yield right of way in Nassau County.

These types of violations all carry points and can lead to higher insurance costs as well as fines and imposition of the driver responsibility assessment. Nassau County traffic violations are handled in the Traffic and Parking Violations Agency (TPVA) which is located at 16 Cooper Street in Hempstead

If you have any questions about fighting traffic violations in Nassau County or anywhere else in New York contact us or visit us at drsummons.com or 877-DR-SUMMONS (377-8666).

Several months back I wrote a series of blogs about officers and troopers prosecuting New York traffic tickets they issue. As an experience New York Traffic Court attorney, I wrote about why this practice should not be allowed. Recently, I had an experience in one particular Dutchess County court which reaffirms my belief that officers and troopers should not be masquerading as prosecutors.

Simply stated, police officers and state troopers should not act as prosecutors because they operate with no regard for the disciplinary and ethical rules that guide attorney conduct or those acting as attorneys under one of the exceptions promulgated by the legislature. Furthermore, I have personally witnessed State Troopers blatantly violating their own internal rules. I have personally witnessed the questionable (if not outright illegal) practice of State Troopers, with firearms at their side, calling defendants out into the hallway for a “conference”. Like a prison yard roll-call, these troopers turned “prosecutors” call out: “Smith, Jones, Johnson and Lopez, outside in the hall”. Then, with 9mm firearms visible on their sides these troopers turned “prosecutors” “advise” the hapless motorists to plead guilty but to tell the judge they were only going 10 mph over the limit. The troopers turned “prosecutors” then promise that they won’t object to the judge finding them guilty of a lesser speed.

The trooper practice of advising the defendants to plead guilty is border-line criminal. Even if this court were to rule that troopers can act as prosecutors, that does not mean that those troopers can call defendants into the hallway and give them legal advice. (See Jud. Law 478 & 484). This is misdemeanor (See Jud. Law 485). The State Police have a no-plea policy. What then, could they possibly want to talk to the defendant about? There is a no plea policy, right. That means the troopers show up for trial, period.

Furthermore, the troopers turned prosecutor’s practice of telling motorists to plead guilty but to tell the judge they were only going 10 mph over the limit also violates their own New York State Police internal policy prohibiting troopers from becoming involved in any way with reducing an offense. Indeed: State Police Regulation 8A13 states in relevant part that:

…a member shall not request or solicit a reduction in traffic offenses or in any
way become involved in reducing such offenses or in seeking reductions in penalties
assessed for such offenses.

Additionally, by telling motorists to tell the court that they were only going 10 mph over the limit while at same time the trooper really believes the motorist was going faster than that (indeed, the trooper would not have written the ticket for a higher speed if the motorist had not in fact been going that speed, right?), the trooper is suborning perjury. In other words, the trooper is telling the motorist to lie to the judge.

In a future blog I will explain why it is improper for a court to reduce your speed or let you plead guilty to a lesser speed without the express consent of the prosecutor. Meanwhile, if you have any questions on any New York traffic related matter, feel free to call us toll free at 1-877-377-8666 or visit us on the web at www.DrSummons.com

Experienced New York traffic ticket lawyers know that generally, there are two possible defenses when one is charged with speeding in New York: (1) “I wasn’t speeding”; or (2) “I was speeding but I have an excuse”. (Keep in mind however, there is a third strategy which is not a defense and that is, “I was speeding but the officer can’t prove it”. The “they can’t prove it” strategy will be the subject of future blogs).

With regard to excuses, motorists issued speeding tickets come up with any number of excuses to justify why they were exceeding the speed limit. Generally, unless you have a verifiable pregnant woman in the car or an assailant with a gun to your head, you have no legal excuse. However, at least one court has held that exceeding the speed limit to avoid a suddenly slowing vehicle constitutes a sufficient “emergency” to absolve the motorist of a speeding charge.

In People v. Cataldo, 65 Misc.2d 286, 316 N.Y.S.2d 873, a 1970 case out of the Suffolk County First District Court, J. Colaneri found a motorist not guilty of speeding where the evidence showed that the motorist accelerated to avoid a vehicle that was “rapidly slowing down”. In so ruling, J. Colaneri relied upon the “emergency” justification defense found in Penal Law sec. 35.05(2) which states, in sum and substance, that criminal conduct in not criminal when it is necessary to avoid a public or private injury which is about to occur through no fault of the actor (i.e. the defendant did not cause the emergency situation). In Cataldo, J. Coleneri found that the defendant/motorist was justified in speeding to avoid colliding with the “rapidly slowing” vehicle.

As a defense attorney I love to see defendants win their cases. I love to see judges apply the law as it is written and follow the rules of evidence instead of simply operating as an extension of the prosecution. But even I have some doubts as to the reasoning behind the Cataldo decision. Clearly if the defendant needed to accelerate to avoid a “rapidly slowing” vehicle, the defendant was following too closely and further, was traveling at an imprudent speed. Therefore, the defendant in Cataldo was not entitled to the protections of the emergency defense because he created the emergency situation by tailgating and speeding.

If you have been charged with any traffic violation or traffic misdemeanor, contact Tilem & Campbell toll free at 1-877-DR-SUMMONS or visit us at www.DrSummons.com.

A New York driver must drive at a "reasonable and prudent speed" and reduce his or her speed below the posted speed limit when necessary to do so. Notwithstanding the posted speed limit, you still must drive at a speed that is reasonable and prudent (VTL 1180(a)). Therefore, even if the posted speed limit is 65 mph, you must nevertheless reduce your speed if say for example, it is raining or foggy. Furthermore, you must also reduce your speed at a railroad crossing, when approaching and crossing an intersection, when you go over the crest of a hill, on winding roads, when a special hazard exists with respect to pedestrians or if weather or highway conditions require a reduced speed (See VTL 1180(c)). These statutes have been held constitutional. See People v. Lewis, 13 N.Y.2d 180, 245 N.Y.S.2d 1, 194 N.E.2d 831 (1963); People v. Nappi, 18 N.Y.2d 136, 272 N.Y.S.2d 347 (1966).

If you have been issued a speeding ticket anywhere in New York State including White Plains, New Rochelle, Harrison, Yonkers, Greenburgh or any other jurisdiction in New York State call Tilem and Campbell at 1-877-DR-SUMMONS (1-877-377-8666) or visit www.DrSummons.com, www.TrafficTicketExpress.com, www.WhitePlainsSpeedingTicket.com, or www.HarrisonSpeedingTicket.com.

In New York and elsewhere, it’s common for brake parts to be replaced with rebuilt parts. For example, it’s common for garages to install rebuilt brake calipers, brake pads and shoes, master cylinders and power brake boosters. Furthermore, when repairing or maintaining brakes on trucks, its also common to use rebuilt air compressors and brake valves. Therefore, the most important system on any vehicle, the braking system, is routinely repaired and maintained with re-built or refurbished parts. Many times, the parts to be rebuilt (the “cores”) are obtained from salvage yards (junkyards).

However, the New York State Legislature, in its infinite wisdom, has found it necessary to bar the installation of salvaged airbag systems (called inflatable restraint systems under New York law). Effective March 1, 1999, airbag systems in New York may only be replaced with new systems or salvaged systems which have been certified pursuant to standards set by a nationally recognized testing, engineering and research organization (See VTL § 398-d(6)(e) & 415-c (2)).

Here’s the problem with this law; leave it to the New York State Legislature to pass a law requiring salvaged airbag systems to meet standards set by a nationally recognized testing, engineering and research organization when no such standards or organization to develop such standards exist. And, leave it to the New York Court of Appeals to hold that the failure of the Department of Motor Vehicles to develop such standards did not invalidate the law. N.Y.A.A.D., Inc. v. State of New York, 1 N.Y.3d 245, 771 N.Y.S.2d 54 (N.Y. 2003)
Accordingly, in New York, no matter what reason the air bag system was removed from a vehicle, it may not be sold and installed in another vehicle. Therefore, even if the original car was junked due to a blown engine or rear-end collision, the perfectly working air bag system must be junked.

For more information regarding any New York State Vehicle and Traffic Law issue, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.TrafficTicketExpress.com.

A January 1, 2009 article on MSN.com confirms what many New Yorkers have already found out the hard way; that enforcement of traffic laws is on the increase in large part to raise money for state and local government.

The article confirmed some disturbing trends already observed by the New York traffic court attorneys here at Tilem & Campbell. That much of traffic enforcement is motivated by the desire of government to raise revenue but is also urged by insurance companies eager to raise revenues by increasing premiums on drivers who are convicted of routine traffic offenses.

New York is mentioned in the article because of the recent announcement that New York City will hire 200 additional traffic enforcement agents but the article suggest the national nature of this trend by citing examples from Massachusetts, Colorado, Detroit and Arizona, to name a few places.

At Tilem & Campbell, not only have we noticed an increase in traffic enforcement activity but we have observed an increase in the number of tickets issued during each car stop. Many clients who contact Tilem & Campbell through our 877-DR-SUMMONS telephone number have been issued tickets totaling more than 10 points in a single traffic stop. After 11 points, a driver loses his or New York driving privileges.

In a related Video on MSN, the experts suggest that you do not simply pay your tickets because of the high collateral costs. The experts suggest fighting your tickets in Court.

If you need any advice about New York Traffic Tickets, contact the New York Traffic Attorneys at Tilem & Campbell.

Tilem & Campbell would like to wish our friends, clients, colleagues and loyal readers of this blog a very happy, healthy and successful holiday season and 2009. During this time of year it is important to remind everyone to be careful on the roads. As we celebrate with our families, friends and colleagues, certain things bear repeating:

Do not drink and drive. As discussed in our March 3, 2008 blog, even small amounts of alcohol can result in an arrest and charge for DWI or DWAI.

Refusing to take a breath test can result in the revocation of your driver's license for one year whether or not you are convicted of DWI or DWAI. See our March 17, 2008 blog on refusal to submit to a chemical test in New York.

If you refuse to submit to a chemical test in New York, that fact may be used against you as evidence in your criminal case for DWI or DWAI. See the above March 17 blog.

Do not ignore traffic tickets or traffic fines. Doing so can result in your being charged with Driving with a suspended (or revoked) driver's license in New York (Aggravated Unlicensed Operation) which is crime in New York State. Please see our May 16, 2008 Blog on Driving with a suspended or revoked license.

If you are issued traffic summons or traffic tickets in New York keep in mind that a conviction for most moving violations carry points on your license in addition to the fines. If you receive six points on your license you will be assessed a driver's assessment fee from the New York State Department of Motor Vehicles. This fee will be $100 for six points for three years plus $25 per year for each point over six. In addition, if you receive eleven points your license will be suspended and three speeding convictions in 18 months can result in your license suspension. Do not simply pay tickets indiscriminately. Contact an experienced traffic court attorney. An experienced attorney can often negotiate a substantial reduction of points and/or challenge the tickets.

Do not mix prescription pills (or illicit drugs) and driving. See our November 9, 2008 blog.

With a little commons sense lets all have a safe and healthy holiday season.

Imagine you are laying in intensive care in a New York City hospital awaiting a life-saving heart transplant. Without the transplant, you will die. Now imagine a donor heart becomes available; it is flown in by helicopter as the members of your transplant team are notified to head to the hospital. The problem is, the surgeons and other specialists are not permitted to utilize red emergency lights or disobey certain traffic laws to speed their trip to the hospital even though your life hangs in the balance.
One would think that if an officer pulled over a surgeon for speeding on his or her way to a hospital for a medical emergency that the officer would escort the doctor to the hospital. Indeed, officers are taught that preserving life is always their first priority. Unfortunately, I have heard far too many complaints from doctors pulled over for speeding on their way to an emergency who, instead of receiving an escort from the officer, were delayed while the officer wrote a speeding ticket. Something is very wrong with a system that rightfully allows the Emergency Medical Technicians (paramedics) who drive the ambulance the dying patient is in to disregard certain traffic laws and regulations (VTL 1104) but does not extend the same privileges to the doctor who will perform those life saving procedures. Indeed, even sanitation patrol vehicles may disregard certain traffic laws and utilize emergency lighting and sirens. In other words, glorified garbage men have more priority than doctors in route to save a life. (See VTL 101 & 1104).
However, there might be legal way to classify a doctor’s vehicle as an authorized emergency vehicle thus allowing him or her to disregard certain traffic rules and regulation and to also utilize red emergency lighting. In People v. Levy, 188 Misc.2d 103, 727 N.Y.S.2d 248 (2001), the Appellate Term for the Second Department held that a volunteer ambulance service member’s vehicle qualified as “emergency ambulance service vehicle” as defined in VTL 101 because the defendant produced uncontroverted proof that the vehicle was affiliated with a volunteer ambulance service. Specifically, the defendant produced a dashboard placard showing that his vehicle was affiliated with a local private ambulance service.
Therefore, one way for doctors to legally equip their vehicle with emergency lighting and disregard certain traffic regulations in the event of an emergency is to associate their vehicle with the ambulance service operated out of their hospital or a private ambulance service operated in the area of their hospital or other medical location. One should not do this however, without first consulting with an experienced traffic court attorney that can review the law in more detail with them.
If you have received a ticket for any traffic violation/crime, such as speeding, contact Tilem & Campbell toll-free at 1-877-DR-SUMMONS (1-877-377-8666) or visit us at www.DrSummons.com.

In previous blogs I discussed the reduced speed limits in work zones as well as the definition of a work area. As discussed, many White Plains speeding tickets are issued in the work zone along I-287. Much of the highway work is done by members of The Laborers' International Union of North America (LIUNA) of which I am a member in good standing. Prior to becoming a criminal attorney I worked through Local 731 of LIUNA and to this day I still pay my monthly dues and carry my “card”.

As we approach and pass through construction zones, all of us have seen flagpersons either redirecting the flow of traffic or advising oncoming traffic of hazards and the need to slowdown. Basically, a flagperson is one employed by the state, municipalities, local authorities, public authorities including public utility companies or individuals working for companies under contract with such state agencies who have been assigned to direct and control traffic on public highways in connection with any construction or maintenance work. A flagperson is also one employed to direct traffic at railroad crossings and who has been authorized to direct traffic in connection with escort vehicles operating on a public highway (See VTL § 115-b for the exact definition of “flagperson”).

I have worked as a flagperson and I can state from experience that it is one of the more dangerous jobs. The flagperson is generally in the line of traffic and most drivers don’t’ realize that a flagperson has the same authority as a police officers in terms of directing traffic. (See VTL § 1102). Lately, however, most municipalities now station police officers at construction zones on local streets to help slow down the traffic flow. Nevertheless, a motorist must comply with a lawful direction or order of a flagperson whether a police officer is present or not. (VTL § 1102).

If you have any questions about any traffic related matter including White Plains speeding tickets, feel free to call 1-877-DR-SUMMONS (1-877-377-8666) or visit www.DrSummons.com or www.WhitePlainsSpeedingTicket.com.

The City of White Plains Police Department is relentless when it comes to issuing speeding tickets. This is especially so in school zones. At Tilem & Campbell we are routinely retained by motorists who received a school zone speeding ticket in White Plains. Many of these White Plains speeding tickets are issued in the Stepinac High School zone along Mamaroneck Avenue where the speed limit drops from 40 mph to 25 mph. Although there is no parking across the street from the high school, there are no drop off points across the street from the high school, the high-school is set back several hundred feet from the main road and all student parking and pick-up locations are several hundred feet from the main road, the speed limit drops dramatically at that location and others along Mamaroneck Ave. and elsewhere.

School zone speeding tickets are covered in NY VTL § 1180(c) which states in general terms that whenever a maximum school zone speed limit has been established, no motorist shall exceed said speed limit during school days indicated on a school zone speed limit sign provided that such reduced speed can only be in effect from 7 a.m. to 6 p.m. or any time interval in between (See VTL § 1180(c)(1)).

Instead of a school zone speed limit sign, a reduced school zone speed limit may be indicated by flashing lights indicating that a reduced school zone speed limit is in effect during school activities. Such flashing lights may only flash and therefore, may only reduce the school zone speed limit for a period starting 30 minutes before and up to 30 minutes after school activities (See VTL § 1180(c)(2)).

These School Zone tickets are often prosecuted more aggressively than other types of speeding cases in the White Plains City Court and in other Courts such as Mamaroneck and Harrison.

If you have been issued a White Plains Speeding Ticket for exceeding a school zone speed limit or any other traffic violation including work zone speeding, red light, no left turn, etc, call Tilem & Campbell toll free at 1-877-DR-SUMMONS (1-877-377-8666) for a free consultation or visit www.DrSummons.com.

The City of White Plains hosts one of the busiest traffic courts in Westchester County and probably the most common traffic infraction cited in White Plains is speeding. That’s understandable with Interstate 287, the Hutchinson River Parkway and the Bronx River Parkway running through it. As a result, in addition to the White Plains Police Department, speeding tickets returnable in the White Plains City Court are issued by the Westchester County Police and the New York State Police.

A common hot spot for White Plains speeding tickets, especially work zone speeding tickets is Interstate 287. For the past several years construction work has been taking place on I-287 in White Plains. This construction results in “work zones” or “work areas” along I-287 wherein the speed limit is 45 mph.

Not only are work zone speed limits generally 10 to 20 mph less than the normal speed limits, the minimum fine for speeding in a work zone is double that of a non work zone speeding ticket. You may not drive through a work or road maintenance area faster than the posted speed limit (VTL §1180(f)). However, as I stated above, the speed limit in these areas is generally 10 mph to 20 mph less than usual and can tend to sneak up on drivers. A work zone speed limit may not be more than 20 mph below the normally posted speed limit for that area nor may a work zone speed limit be less than 25 mph. (VTL § 1180(f)).

In 1995, the New York State Legislature determined that work zones are one of the most dangerous work environments and that drivers who exceed the posted work area speed limits must be severely punished (Legislative Findings of L.1995, c. 446). Accordingly, the Legislature passed a law doubling the minimum fines for speeding in a work area. In other words, if you are convicted of exceeding a work area speed limit by 1 to 10 mph, the minimum fine would be $90.00 instead of $45.00; if you are convicted of exceeding a work zone speed limit by 11 to 30 mph, the minimum fine would be $180.00 instead of $90.00; and if you are convicted of exceeding a work area speed limit by 31 mph or more, the minimum fine is $360.00 instead of $180.00. Remember that all traffic violations in the City Court of White Plains get assessed a new $80 mandatory surcharge in addition to the fine.

In a future blog I will discuss the definition of a work zone as well as other issues relevant to work zone speeding tickets. If you have received a White Plains speeding ticket for speeding in a work zone, or if you have received a ticket for any other traffic offense such as speeding, red light, passing a school bus, stop sign or an equipment violation, or a summons for any traffic misdemeanor such as reckless driving, DWI or Aggravated Unlicensed operation, contact Tilem & Campbell PC at 1-877-DR-SUMMONS (1-877-377-8666) for a free telephone consultation.

For the most part, yes, in New York, bicyclists are subject to the same rules of the road as motor vehicles. In fact, in New York City it is not uncommon for bicyclists to be “pulled-over” and issued tickets for violations committed while traveling on their bicycles. There are, of course exceptions which will be discussed below. Generally, a bicycle is defined under New York law as a two or three wheeled device propelled by human power. The definition however, does not include devices with solid tires intended to be used by pre-teenage kids on the sidewalk. (See VTL § 102 for the exact definition).

Generally, bicyclists must obey the same rules of the road as operators of other vehicles. See VTL § 1231 which provides in pertinent part that anyone riding a bicycle or in-line skates are subject to all the rights and duties applicable to drivers of more common vehicles except for certain regulations and provisions which by their very nature have no applicability. VTL § 1231

For example, a bicyclist must stop at a stop sign. Trzepacz v. Jara, 1 A.D.3d 531, 782 N.Y.S.2d 852 (2nd Dept. 2004). And a bicyclist operating on a roadway, with few exceptions, bears virtually all of the same responsibilities a driver of a motor vehicle does. Redcross v. State, 241 A.D.2d 787, 660 N.Y.S.2d 211(3rd Dept. 1997). Just as a bicyclist must obey the same rules as the operator of a more conventional vehicle, the bicyclist is also entitled to the same rights or “right of way” as the more conventional vehicle. Therefore, a motorist must yield the right of way to a bicyclist who is already lawfully in the intersection. People v. Marr, 187 Misc.2d 280, 721 N.Y.S.2d 737 (2001 Jus. Ct. Vil of Horseheads)(Motorist found guilty for failing to yield right of way to bicyclist, who motorist subsequently hit, at an intersection where bicyclist had the right of way.)

However, one law that bicyclists are exempt from is VTL § 1163(b) which requires that an intention to turn left or right be given continuously for a least one hundred feet prior to the turn. This does not mean that a bicyclist is totally exempt from signaling their intention to turn. However, due to the obvious safety concerns associated with a bicyclist operating his or her bike for 100 feet with only one hand on the handlebars as he or she uses the other hand to indicate their intention to turn, bicyclists are exempt from the 100 foot requirement found in VTL § 1163(b). However, while exempt from the 100 foot requirement, bicyclists must indicate their intention to turn by some hand signal although it need not be for the full 100 feet as required by VTL § 1163(b) see e.g. Blitstein v. Capital District Transportation Authority, 81 A.D.2d 981, 439 N.Y.S.2d 768 (3rd Dept. 1981) see also Secor v. Kohl, 67 A.D.2d 358, 415 N.Y.S.2d 434 (2nd Dept. 1979)(Requirement of Vehicle and Traffic Law that turn signals be given continuously for at least 100 feet before turning is gauged to speeds of automobiles and cannot be reasonably applied to much lower speeds of bicycles.).

If you have been issued a ticket or summons anywhere in New York State for an alleged violation committed while riding your bike, you should contact an experienced New York traffic court law-firm to defend you. You should also always carry identification with you when you are out riding because there are far too many police officers who will arrest you and put you through the criminal justice system for 24 hours locked up with the worst of the worst until you get to see a judge. For more information contact Tilem & Campbell PC at 1-877-DR-SUMMONS (1-877-377-8666).

The simple answer is no. Emergency vehicles in New York are defined as police vehicles or bicycles, ambulances, fire, corrections and civil defense emergency vehicles as well as sanitation patrol vehicles, emergency response vehicles, certain vehicles of the United States Armed forces and hazardous materials emergency vehicles. VTL § 101. Vehicle and Traffic Law section 1104 permits the above mentioned emergency vehicles to disregard certain traffic laws and regulations when involved in an emergency operation. VTL § 1104.

However, with the exception of police vehicles, the other emergency vehicles are only exempt from the traffic laws and regulations if they are traveling with an audible signal as well as at least one red light (if more than one light, at least one must be red) visible from at least 500 feet. VTL § 1104(c). For obvious reasons, police vehicles are exempt from the siren and lighting requirements. The driver of a police vehicle nevertheless still must drive with due care and may not proceed recklessly.

The above listed vehicles found in VTL § 101 are the only emergency vehicles authorized the disregard certain traffic laws and regulations (provided they do so with due care and not in a reckless manner). A member of a local volunteer fire department therefore, may not equip his or her vehicle with lights and sirens and declare it to be an emergency vehicle thus allowing him or her to disregard traffic laws and regulations while traveling to a fire. Nicosia v. Shultis, 239 A.D.2d 473, 658 N.Y.S.2d 640 (2nd Dept. 1997).

If you have been injured in a car accident with an emergency vehicle, contact the law firm of Tilem & Campbell. You should contact an attorney immediately as there are strict time limitations for filing certain necessary documents when you are suing a municipality such as New York City, White Plains, New Rochelle, Pelham, the Village or Town of Mamaroneck or any other municipalities. However, you should know that when involved in an accident with an emergency vehicle travelling to an emergency situation, the driver of that emergency vehicle will not be deemed liable unless he or she operated the emergency vehicle with a reckless disregard for the safety of others. This is a more difficult standard to prove then the mere negligence standard applicable in accidents involving non-emergency vehicles.

New York Traffic Ticket Lawyers, Tilem & Campbell are please to announce the posting of their newest web paging entitled "New York City Traffic Tickets". The page is designed to be a primer of the practices of the New York Traffic Violation Bureau Courts (TVB) that operate in New York City, Rochester, Buffalo and parts of Suffolk County. If you receive a traffic summons in Brooklyn, Bronx, Queens, Manhattan or Staten Island in New York City it will be returnable to the Department of Motor Vehicles and be adjudicated in a TVB. The New York City Traffic Ticket page will educate you about the practices and procedures of these administrative courts.

The page is broken up by heading with topics such as "The Hearing", "Entering Your Plea" and "The Rules of Evidence at the Hearing" and more and therefore should be a simple reference for any questions realting to New York City Traffic Tickets.

If you receive a traffic summons in the City of New York or any other area that is covered by the TVB please refer to the "New York City Traffic Tickets" page or contact us at 877-DR SUMMONS. Keep in mind that the TVB only handles traffic infractions and not traffic misdemeanors or other types of violations.

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney's Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964) (Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)

Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not been duly admitted and licensed to practice law in New York Courts from acting or holding themselves out as attorneys.

The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478

In Section 484 of the Judiciary Law titled: “None but attorneys to practice in the state” the New York State Legislature again reiterated that only duly licensed attorneys may practice in New York but this statute virtually mirrors Jud. Law § 478 by specifically identifying those non-attorneys that may, under proper supervision, perform legal representation otherwise not allowed by non-attorneys. To summarize, law students or those awaiting their bar exam results may appear as attorneys, under proper supervision, for the Legal Aid Society and the District Attorney’s Office.

The most telling exemptions found in both Sections 478 and 484 of the Judiciary Law pertaining to non-attorneys appearing as attorneys is the exemption allowing officers of societies for the prevention of cruelty to animals to appear, under proper supervision, to prosecute appropriate cases. This exemption establishes that the Legislature has specifically authorized a particular law enforcement officer to act in an attorney/prosecutorial like role. Therefore, under the doctrine of “inclusio unius est exclusio alterius”, the Legislatures express inclusion of one type of enforcement officer that may act in a prosecutorial capacity creates an irrefutable presumption that no other law enforcement officer may act in a prosecutorial capacity.

There are numerous other examples of where the Legislature or an agency acting pursuant to Legislative authority specifically authorizes a non-attorney to represent individuals. See for example:
• NY Labor Law § 538 specifically allows a claimant to be represented by a representative who need not be an attorney.
• 18 NYCRR 434.5(d) which allows one appealing a finding of abuse or neglect to be represented by an attorney or other “representative” at a fair hearing.
• 15 NYCRR 124.1(b) which allows a motorist charged with a traffic violation in the Traffic Violations Bureau “the right to the assistance of counsel or other representative”.

It should be noted now however, that the Legislature, while authorizing non-attorneys to act as attorneys in certain circumstances, has never authorized the officer who issued the New York traffic ticket to act as a prosecutor. Under the doctrine of “inclusio unius est exclusio alterius” as codified in McKinney’s Statutes § 240, the fact that the Legislature specifically allowed certain non-attorneys to act as attorneys infers that the Legislature intentionally excluded other non-attorneys, such as police officers and State Troopers from acting as attorneys.
Clearly, the above statutes and regulations establish that the Legislature has statutorily created certain situations where non-attorneys make act as attorneys. The Legislature however, did not include local police officers or New York State Troopers in these categories.

Many times at the New York Criminal Defense Firm of Tilem & Campbell we are contacted by individuals who have been charged with Aggravated Unlicensed Operator (VTL § 511) resulting from the suspension or revocation of their New York State driver’s license or the suspension or revocation of their privilege to drive in New York if they are an out-of-state resident. This charge is not simply a traffic violation but it is a serious criminal matter that could result in a misdemeanor conviction.

While I will not discuss the details of the Aggravated Unlicensed Operator charge in this blog, I will discuss a key element of the charge that must be attacked in order to defeat the charge. (It should be noted however that if the defendant clears up the underlying suspensions that resulted in the Aggravated Unlicensed Operator charge most, if not all, prosecutors will agree to reduce the charge to a non-criminal traffic violation. If however, the defendant has multiple Unlicensed charges, was intoxicated, injured someone or if some other aggravating factor is present, their might not be an offer and the case must be fought because a criminal record hangs in the balance.)

What is the key element to attack in an Aggravated Unlicensed Operator charge? It’s the know or having reason to know that your license was suspended or revoked element that must be attacked. In order to be convicted of Aggravated Unlicensed Operator, the People must prove that you knew or had reason to know that that your license was suspended or revoked. How can the People prove this? New York Vehicle and Traffic Law section 214 basically states that if the DMV produces an affidavit from an employee explaining the procedures DMV follows for mailing suspension or revocation notices and if electronic copies of such notices are presented in court, there is a statutory presumption that such notice was mailed.

However, all VTL § 214 establishes is a presumption that the suspension or revocation notice was mailed. The prosecutor has a much harder burden to prove that the defendant actually received such notice. Since the United States Supreme Court holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004], an affidavit such as the one described in VTL § 214 cannot be introduced into evidence by the People to prove defendant's knowledge that his license had been revoked. To do so violates the defendant’s constitutional right to confront the witnesses against him. People v. Pacer, N.Y.3d 504, 847 N.E.2d 1149 (2006).

In Pacer, the New York Court of Appeals noted that the affidavit prepared by the Department of Motor Vehicle employee was critical to the People’s case but without that employee being actually present and subject to cross-examination the defendant had no means of cross-examining her on a critical element of the charge. For example, the defendant had no chance to question the DMV employee about whether the DMV ever made mistakes with their mailings or whether the mailing was returned to DMV undeliverable. Also, another key point in this case was the fact that the mailing in this case was alleged to have taken place 16 years earlier yet the affidavit prepared for court was prepared by a DMV employee who did not work for DMV back then and had no idea about DMV procedures for mailing notices back then.

A defendant however, must specifically raise a Crawford objection to the introduction of a DMV affidavit without a DMV employee present to cross-examine. (People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] [“defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error].

If a lawyer fails to raise the objection, your right to confront the DMV employee might be forever lost. As a result treat the charge of Aggravated Unlicensed Operation of a Vehicle with the seriousness that it deserves. Hire a New York criminal defense lawyer experienced in handling these types of cases. If you or a loved one is charged with Aggravated Unlicensed Operation contact one of the lawyers at Tilem & Campbell

In a previous blog I explained that one doesn’t not have a statutory right to a speedy trial in a New York traffic violation case (such as speeding, red light, stop signs violations, etc). Does this mean that a New York court can take years to schedule your trial? The answer is yes and no. While there is no statutory right to a speedy trial in a traffic violation case, the courts have held that one charged with a New York traffic violation has a constitutional right to have his or her trial held within two years. This constitutional right is found in CPL § 30.20 which basically states that after a criminal prosecution is commenced the defendant is entitled to a speedy trial. This section does not set forth what constitutes a speedy trial however. It also applies to traffic violations because for purposes of procedure, traffic violations are treated as misdemeanors. See VTL § 155. The Sixth Amendment to the United States Constitution also guarantees a right to a speedy trial even in traffic violation cases.

Numerous New York court cases have held that the speedy trial provision found in CPL § 30.20 applies to traffic violation cases. The question becomes therefore, what is considered an acceptable time frame within which one charged with a New York traffic violation must be brought to trial in light of CPL § 30.20? Two years seems to be the limit provided the delay is not caused by the defendant. Below are reviews of relevant cases:

In People v. Thorpe, 160 Misc.2d 558, 613 N.Y.S.2d 795 (1994) the Appellate Term dismissed a conviction due to an unexplained two year delay in bringing the case to trial. This is the case to rely on when making a speedy trial motion. See also People v. Matera, 2003 WL 21974065 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51180(U)(unexplained delay of over two years in bringing traffic infraction to trial warranted dismissal); People v. Rogoish, 2003 WL 21700087 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 51120(U)(unexplained delay of over three years in bringing the traffic infraction to trial warranted dismissal)

Therefore, if you are charged with a traffic infraction in New York and never receive a trial notice, don’t call the court. Contact an experienced traffic court firm such a Tilem & Campbell and we will run your license to ensure that you didn’t miss a date. Then we will sit back and wait. If the trial notice comes more than two years later, Tilem & Campbell will file a written motion seeking dismissal. Finally, the above analysis and laws do not apply for tickets handled by the DMV Traffic Violations Bureau. Those tickets have are handled under a different set of rules which I will discuss in a future blog.

The simple fact is, a motorist charged with a New York traffic violation has no statutory right to a speedy trial. The denial of a statutory right to a speedy trial in a New York traffic violation case is yet another example of the New York Judiciary completely disregarding the laws duly enacted by the Legislature and imposing their own will. It is yet another example of what I consistently refer to as judicial supremacy as opposed to judicial oversight. Such rulings by the courts quite simply amount to a judicial hijacking of the legislative role thus destroying the separation of powers.

A review of the relevant laws reveals that the Courts' denial of speedy trial rights in traffic violation cases (as well as the denial of other rights in traffic violation cases) is completely contrary to the clear and unambiguous wording of the laws; laws that the judiciary is constitutionally obligated to enforce and carryout whether they agree with them or not.

First of all, the New York State Legislature has determined that, with some exceptions, traffic “violations shall be deemed as misdemeanors and all provisions of law relating to misdemeanors . . . shall apply except that no jury trial shall be allowed for traffic infractions.” See VTL § 155. Therefore, if the Legislature has determined that traffic violations are to be treated procedurally as misdemeanors, under what possible theory could the speedy trial statutes not apply? See for example People v. Solomon, 1984, 124 Misc.2d 33, 475 N.Y.S.2d 749 (1984) where the court held that the right to speedy trial does not attach to actions commenced for traffic violations. See also People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778(1993)(Speedy trial statute applies only to felonies, misdemeanors, and violations, and “violation” is specifically defined to exclude traffic infractions.)

Under what possible theory of statutory construction could the Solomon court have concluded that statutory speedy trial rights do not apply to traffic violations in light of the clear wording of VTL § 155 which states that traffic violations shall be treated as misdemeanors?

In fact, NY CPL 30.30(1)(d) states that when a defendant is charged with a violation, the People must be ready within 30 days of the commencement of the criminal action. However, the courts have literally hijacked the legislative authority by ruling that the speedy trial provisions found in CPL 30.30 don’t apply to traffic infractions. If you are charged with a traffic violation in New York and more than two years have passed since the time you received the ticket and the time your trial is scheduled, contact Tilem & Campbell because while you may not have a statutory right to a speedy trial on a traffic violation case, you do have a constitutional speedy trial right which usually takes effect at about two years. In a future blog I will discuss the constitutional speedy trial right you have when charged with a traffic violation.

As I explained in a previous blog, the practice of officers prosecuting the New York traffic tickets they issue was upheld by the New York Court of Appeals case; People v. Soddano. Soddano and it’s holding that officers may act as prosecutors for their tickets is flawed for several glaring reasons. First, the practice violates a principle as old as trials themselves - a witness may not act as an advocate at a trial. In other words, if the lawyer is a witness in a case, he may not act as one’s lawyer in that same case. For example, if I witness a car accident, I am forbidden from representing someone involved in that car accident. This is commonly referred to as the “Witness-Advocate Rule”. In fact, this ancient rule is codified in the Disciplinary Rules that attorneys in this State are obligated to follow. See N.Y.Ct.Rules, § 1200.21(c); (DR 5-102(c).

This is a very basic rule that most sixth-graders could comprehend once it was explained to them. If you are a witness in the case, you can’t represent someone in the case. Therefore, in a traffic ticket case, the issuing officer is not only a witness; he or she is usually the complaining, and sole witness in the case. Accordingly, under the “Witness-Advocate Rule”, the officer should be barred from representing the People. The officer should be barred from acting as an advocate in the very case he or she is the main witness. Very simple, right? Wrong!

You see, in most New York local criminal courts, “up is down” “down is up” “left is right” “right is left” and the Constitution and Due Process are mere annoyances that are simply cast aside. When I first became an attorney, I thought I was missing something. I became hesitant to even open my mouth in court because apparently in local criminal court, words have different meanings and statutes are interpreted and applied without regard to the plain wording of the law. I came out of law-school thinking the judges were the most wise and legally educated individuals in the equation. Quickly, however, I realized that I wasn’t misreading the law; I came to learn that the law doesn’t matter. It’s that simple – THE LAW DOESN’T MATTER. The extent to which most local criminal court judges will contort the law to ensure conviction and accommodate the prosecution is mind boggling.

How the courts justified officers prosecuting the tickets they issue when such conduct clearly violates the “Witness-Advocate Rule” is a perfect example of the contorted reasoning that courts will employ to justify improper prosecutorial misconduct and constitutional violations. In People v. Pappas, the Appellate Term held that the “Witness-Advocate Rule” didn’t apply to officers who prosecuted their own tickets because they are not attorneys and therefore are not bound by the Disciplinary Rules that attorneys must follow. 19 Misc.3d 140(A)(2008).

The court’s reasoning in Pappas is flawed. If the officers are not attorneys, they shouldn’t be prosecuting cases. By allowing officers to act as attorneys without being bound by the rules of attorney conduct removes a layer of protection designed to protect the public and ensure that those who practice law are fit to do so and comply with strict standards of conduct. It also puts an attorney representing a defendant at a disadvantage. Indeed, the defense attorney’s adversary (the officer) is not bound by the rules of attorney conduct. By allowing officers to prosecute their own tickets, without regard to the rules of attorney conduct, the Courts have created an unequal playing field. If the officer can violate the attorney Disciplinary Rules prohibiting a witness from representing a party; what other attorney Disciplinary Rules can the officer violate?

As I discuss in my next blog, the Legislature has indicated where non-attorneys may act as prosecutors and police officers are not one of the non-attorney classifications empowered by the Legislature to act as prosecutors.

The answer to this question is fairly simple; when it comes to New York traffic violations, the Courts of New York State have allowed deeply rooted judicial principles founded on fairness to be disregarded. As I said in a previous blog, far too many judges have no apparent concept of the presumption of innocence and proof of guilt beyond a reasonable doubt. This fact is more prevalent in traffic court where, in most (but not all) courts, if a traffic violation actually goes to trial, the guilty outcome is a foregone conclusion. The trial, sadly, is a rubberstamp process and the rubberstamp says “Guilty”.

The New York criminal justice system particularly as it pertains to lower level offenses is designed for speed. Some New York courts handle hundreds of tickets per day; others handle dozens per day. Needless to say, fair trials are not on the top of the judge’s list of things to do. In my opinion the desire to “move cases” has eroded our rights to a fair trial in New York traffic court. A prime example of placing the need to “move cases” over the rights of defendants is the practice of having the police officer who issued the ticket both plea bargain the ticket and if necessary, prosecute the ticket. This practice has been condoned by the highest court in New York. See People v. Soddano, 86 N.Y.2d 727, 631 N.Y.S.2d 120 (1995) where the New York Court of Appeals held that officers may, upon a proper delegation from the duly elected District Attorney, prosecute the traffic tickets they issue. The Court acknowledged that the elected county District Attorneys are ultimately responsible for all prosecutions in their particular county (See County Law § 700) but held that the County District Attorneys could properly “delegate” the authority to prosecute traffic infractions to the issuing police officers.

In reality, I doubt the officers have any formal delegation of authority from the elected District Attorney to prosecute their own tickets. Tilem & Campbell handles hundreds of traffic tickets each year and I only recall one time where a local village prosecutor actually presented a written delegation of authority from the elected District Attorney allowing that local prosecutor to prosecute traffic violations within that village. In fact, if you were to ask the issuing officer under what authority he was acting as prosecutor, he or she would most likely have no idea what you were talking about. Most police officers probably learned as rookies that they negotiate and/or prosecute their own tickets. It is in reality, a matter of custom. Ask a local judge to dismiss or inquire as to what delegation of authority the officer has to act as prosecutor and most (not all) local court judges will look at you like you are speaking an unknown foreign language. That’s the reality of New York traffic court.

As if New York Traffic Fines (please see our June 21, 2008 post) were not high enough, New York has a Driver Responsibility Program that can cost those who pay traffic fines in New York a whole lot more. Under the Program in New York, a Driver Responsibility Assessment is billed by New York DMV if you obtain 6 points on your license in 18 months. The Assessment starts at $100 per year for a period of 3 years (for a total of $300) and adds $25 per point per year over 6 points (for example 8 points costs $150 per year for three years).

The Driver Responsibility Assessment in New York applies to both New York Drivers and out-of-state drivers. The penalty for failing to pay is suspension of your driving privileges in New York.

Its important to remember that the Assessment is on top of the fine, surcharge and any raise in insurance rates.

Many drivers in New York who get tickets and plead guilty by mail get completely taken by surprise when they get this additional bill in the mail from New York Department of Motor Vehicles. It’s easy to get to six points in New York. Speeding 76 or above in a 55 mile per hour zone is six points for one ticket. Failing to signal a lane change and 41 in a 30 mile per hour zone is another easy way to get to six points.

Bottom line, if you receive any traffic summons in New York State consult an experience New York Traffic Attorney and get the facts before you plead guilty.

New York State traffic ticket fines can be expensive. Some small towns actually use traffic summons fines as a revenue source to help lower the taxes of the local residents. New York State Speeding fines can be among the most expensive traffic violations with fines for one mile per hour over the speed limit costing as much as $150 for a first offense. In addition, each traffic violation in New York State carries a mandatory New York State surcharge of either $50 or $55 depending on the Court. Even for a first conviction speeding 31 or more miles over the limit carries a fine of up to $600 for the first offense and for a third offense in eighteen months (which carries a mandatory revocation of the motorist’s driver’s license) the fine and surcharge can exceed $1000.

Aside from speeding fines, other traffic violations such as passing a red light and reckless driving can be very expensive and it is not uncommon for a single traffic ticket to cost more than $200 for the fine and surcharge.

In addition to the exorbitant fines levied in New York Courts for traffic summonses, New York has a point system that insurance companies and the New York State Department of Motor Vehicles (DMV) use to assess additional fees and surcharges. See point chart at trafficticketexpress.com.

The bottom line is that New York Traffic Violations can get very expensive. If you have received a traffic ticket, don’t simply pay it without knowing your rights and the potential consequences. Get the facts at trafficticketexpress.com or contact 1-877 DR SUMMONS.

Aggravated Unlicensed Operation of a Motor Vehicle in New York, also known as driving with a suspended (or revoked) license is a serious crime defined in the Vehicle and Traffic Law of New York State. Driving with a suspended license can be either a misdemeanor or a felony depending on the circumstances of the individual case. Most often the motorist’s license is suspended for failure to answer one or more summonses but a person’s New York State License can be suspended or revoked because of a DWI, DWAI, an insurance lapse, three speeding convictions in an eighteen month period or accruing more than 11 points on a person’s license to name a few.

If your license is suspended don’t drive. In many cases an attorney experienced in traffic matters can “clear” the license inexpensively and quickly. If you are stopped while driving with a suspended or revoked license in Manhattan, Queens, Brooklyn, Bronx or Staten Island you will most likely be arrested and spend twenty-fours in jail waiting to see a judge (arraignment). In Westchester and other suburbs you will probably receive a summons but so not let the summons fool you. The summons may charge you with a felony or misdemeanor for which a jail sentence is required.

The best course of action is to “clear” your license. That means obtaining a driver’s abstract from DMV (we can obtain driver's abstracts) and resolving each of the issues on your driver’s license. The ultimate goal is to restore your driving privileges with the Department of Motor Vehicles. Judges and prosecutors are reluctant to plea bargain cases where the defendant has not restored his or her driving privileges. Judges and prosecutors are concerned that if you don’t restore your driving privileges you will be back with another VTL 511 charge.

A note about out-of-state driver’s or individuals without a New York State License, you can still be charged under this section. VTL §511 makes it a crime to operate a vehicle if your privileges to operate a vehicle have been suspended or revoked. That means that even if you have never had a New York State Driver’s License if you fail to answer a New York summons or cause DMV to suspend your privileges for some other reason (like a New York DWI) your New York State driving privileges can still be suspended or revoked and if caught driving in New York you are subject to arrest.

The bottom line is, don’t ignore summonses, DMV notices or insurance issues. If you believe your license is suspended do not drive. Check with DMV or a New York lawyer who can check the status of your license or driving privileges. If you are charged with Driving with a Suspended or Revoked License get an attorney involved as early as possible so that you can get your privileges restored and get the best possible outcome.

A relatively new set of laws in New York creates a new category of crimes based upon fleeing from the police in a car. Only in effect since November of 2006, Penal sections 270.25, 270.30 and 270.35 criminalize fleeing from the police if you are in a vehicle and you either exceed the speed limit by 25 miles per hour or drive recklessly. Section 270.30 applies if the chase results in “serious physical injury” and section 270.35 applies if the chase results in the death of someone.

Prior to the effective date of these statutes, a person fleeing from the police was only guilty of failure to obey a police officer which is a traffic infraction under New York Law. Under these new sections, fleeing from the police is a crime. Under Penal Law §270.25 a person can be found guilty of a class “A” Misdemeanor and face up to one year in jail. Under Penal Law §270.30 a person can be found guilty of a class “E” Felony and face up to four years in prison and under Penal Law §270.35 a person can be found guilty of a class “D” Felony and face up to seven years in prison.

These cases are serious and anyone charged with any of these crimes should contact an experienced New York criminal defense attorney who handles driving related matters.

The bottom line is if you see the police behind you, pull over immediately. The life you save maybe yours.

White Plains based law firm Tilem & Campbell has launched its own investigation into some of the practices of the Cayuga Heights Village Court and Judge Glenn G. Galbreath. Tilem & Campbell, the Westchester County based firm that represents drivers throughout New York State and is the owner of domain name TRAFFICTICKETEXPRESS.COM, launched the investigation after a letter from the Cayuga Heights Court seemed to indicate that Judge Galbreath may be implementing an illegal plea policy with regard to speeding tickets. During a preliminary investigation, the firm received complaints from several lawyers about the Court and Judge Galbreath prompting the wider probe.
Peter H. Tilem, Senior Partner at the firm, has requested transcripts of numerous Court proceedings and has requested access to all traffic ticket cases adjudicated in the Court over the last year. As a former New York County Prosecutor, Mr. Tilem has extensive experience in conducting investigations. A similar investigation launched by the firm last year into practices at the North Hills Village Court led to the firm filing an action against Judge Sigmund Semon in the Supreme Court of Nassau County.

If you are charged with a “Traffic Infraction” such as speeding, passing a school bus, red light violation, etc, you should not plead guilty but instead should hire an attorney skilled in defending such charges. The lawyers at the New York Law Firm of Tilem & Campbell have experience in fighting thousands of tickets. The Website trafficticketexpess.com is also a great resource to find out more about your ticket and your right. Tickets issued in New York City (Bronx, Manhattan, Brooklyn, Queens and Staten Island), Rochester, Buffalo and parts of Brookhaven, Babylon, Islip, Huntington, Smithtown and Riverhead, in Suffolk County, your case will be handled by the New York State Department of Motor Vehicles Traffic Violations Bureau. If you received your ticket anywhere else in the State such as Westchester County, White Plains, New Rochelle, Mt. Vernon, Mamaroneck, Larchmont or other municipality, your ticket will be handled by the local criminal court. Below is a brief definition and explanation of a “Traffic Infraction”.

Traffic Infraction: A Traffic Infraction is any offense defined as a “traffic infraction” by VTL § 155. A “traffic infraction” is any violation of the VTL (except Articles 47 & 48) or of any ordinance, law, rule, regulation or order regulating traffic which are not misdemeanors or felonies. VTL § 155. Traffic infractions are not crimes and the punishment imposed for committing a traffic infractions shall not be deemed a penal or criminal punishment nor shall a conviction for a traffic infraction impair one’s credibility as a witness. Id.

A conviction for a New York traffic infraction can result in fines, the remote possibility of jail and fines imposed under the New York State Point System.

Where “traffic infractions” are handled in local criminal court, for purposes of procedure and otherwise, they shall be deemed misdemeanors and, with some limited exceptions, all provisions of law applicable to misdemeanors are applicable to “traffic violations” except no jury trials are permitted. Id. The Court of Appeals has stated that prosecutions for “traffic infractions” in local criminal court are generally governed by the rules of criminal law. People v. Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632, 239 N.E.2d 515 (1968).

Despite this very clear language establishing that the procedures and law pertaining to misdemeanors shall apply to “traffic infractions”, one does not have any statutory speedy trial rights when charged with a “traffic infraction”. People v. Solomon, 124 Misc.2d 33, 475 N.Y.S.2d 749 (1984)

For the exact definition of “Traffic Infraction”, see NY VTL § 155.

What this means is that many legal “loop holes” exist that can be used to fight your traffic ticket. These loop holes can be used to get tickets dismissed but also used to obtain favorable plea bargains for drivers. The key is to have an experienced attorney, such as an experience New York Traffic Attorney from Tilem & Campbell who knows the procedures and can best fight your ticket.