Thursday, July 14, 2011

Ithaca, NY DWI Lawyer Plays The Can You "Prove" That Game

In my typical week I stand in front of a great many Judges, Court Clerks, and Assistant District Attorneys. When I say this or that about this law or that statute I am often looked at quizzically (is that a word? of course it is after all I said so!.

But even if one week the Judge or Clerk or ADA says OK, you're right, the next week it's like the movie "Ground Hog Day." We start all over as if they forgot what happened in the prior week. Which has me bringing into the Court, law books, so they can see the actual numbers and pages to the law that I quote and want applied.

For instance, it is the "law" that if someone pays restitution for a crime that there is no mandatory state surcharge for the crime/violation. In the case of a DWI with an accident, if the tree or street sign or mail box that were broken or destroyed are replaced or repaired, there should be NO NYS SURCHARGES!

When I tell some Judges, Clerks, and ADAs this law they often balk at my request and insist that I am mistaken, that I am wrong, or don't you know about the DWI exception to this law? The What?

Anyway, I often have to pull out my books or my photocopied pages of the statutes to prove my point.
The New York State Vehicle and Traffic Law section on Penalties and Disposition of Fines and Forfeitures in VTL §1809 (6) states that, Notwithstanding any other provision of this section,
where a person has made restitution or reparation pursuant to section 60.27 of the penal law, such person shall not be required to pay a mandatory surcharge or crime victim assistance fee.


Furthermore, New York State Penal Law § 60.35 (6) states that Notwithstanding any other provision of this section, where a person has made restitution or reparation pursuant to section 60.27 of this article, such person shall not be required to pay a mandatory surcharge or a crime victim assistance fee.


Proof is usually in the pudding or in this case most certainly in the law.