Wednesday, June 19, 2013

Ithaca Lawyer Reports New 5 Point Violations for Cell Phone, Texting, and Electronic Device While Driving

Dangerous Devices to Use While Driving in New York

Well the big news this weeks is the surprise from our own Governor Cuomo. You can still use a phone and even text while driving in many states. See map below.

Yellow States Still ALLOW Texting and Phone

The national trend is against ANY form of distracted driving via USE of ANY electronic device. New York is taking this all very seriously with these emergency measures, and wanting to put an end to what I consider to be "amateur" drivers.

Serious (High Point) Penalties and Consequences

1. Change to 5 Points for New York State violations of VTL 1225-c (use of a mobile telephone) and 1225-d (use of portable electronic devices) after June 1, 2013.

New York State already had laws against using a cell phone while driving, and texting while driving, and using any electronic devices while driving (think ipods, ipads, portable storage devices). For a short history lesson: It went from no points to five in less than two years. It was no points before February 2011, then 2 points in February 16, 2011, then 3 points in October 2011, NOW FIVE POINTS in June 2013.

2. This change will transform violations of VTL 1225-c and 1225-d into "high-point driving violations."

Now they are in the same category, and seriousness based on points as VTL 1212 Reckless Driving ( a five point misdemeanor), and VTL 1174 (a) failing to stop for a school bus.
For perspective this is more serious than VTL 375 (1) Inadequate Brakes on a truck (a 4 point misdemeanor).

3.  This change will also have significant consequences for those with prior "alcohol- or drug-related driving convictions or incidents" under the new 15 NYCRR Part 132 (dangerous repeat alcohol or drug offenders) and the recently amended Part 136 (Licensing or Relicensing After Revocation Action). Remember two serious traffic violations plus DWs and bye bye driver's license.

4. Added words = new definitions:

The law also adds to the definition of portable electronic device in VTL 1225-d (2) (a) "any other electronic device when used to input, write, send, receive, or read text for present or future communication." 

And the new term "using" is re-defined in 1225-d(2)(b) will be defined as "holding a portable electronic device while viewing, taking, or transmitting images, playing games, or, for the purpose of present or future communication: performing a command or request to access a world wide web page, composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, instant messages, or other electronic data."

Bottom Line:

Don't look at or touch ANYTHING while driving except your steering wheel.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law


Friday, June 14, 2013

Fighting for What's Right: Can Police Issue Tickets for Violations They Never Saw?

Car off the road, and then you get tickets, was your speed Not Reasonable and Prudent?

I'd like to imagine I'm a pretty easy going guy. Don't ask my wife about this, because she knows better and believes that I can be a big PITA (pain in the ass). Certain things just bother me. I'm annoyed by unfairness and unprincipled conduct. So that means I must spend a large majority of time away from people, government, and businesses to avoid being mad.

Maybe that's why I moved to the boonies? Yeah, Ithaca is the boonies when you were born and raised in Brooklyn.

Making Friends

I got into a little argument the other day with a Deputy. Great guy, dedicated, and bright but he believes he is entitled to write up people for speeding (traffic) violations he never witnessed. He stood in front of me and counted off reason after reason why he believes that people that go off the road MUST be going over the speed limit.

1. he arrived on the scene without going off the road
2. other cars passed without going off the road
3. he would testify to reconstruct the scene in court

So therefore, my client must have been speeding, as in "Speed Not Reasonable and Prudent" VTL 1180 (a).

Why this common and ongoing practice is illegal:

1. NYS CPL 140.10 (1) (b) prohibits (stops) a LEO (law enforcement officer) from making an arrest or issuing an appearance ticket (traffic ticket) for a violation (infraction) committed outside of their presence.

2. Officers, troopers, and deputies can only write unseen violations for three situations. All involve an accident, and/or leaving the scene and/or alcohol.

So the moral of this story is don't accept this common police practice sitting down as in just pleading guilty. Confront, hire an attorney, and take it and them to court.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law


Courtroom Decorum or Avoiding Mistakes at Sentencing in New York Criminal Cases

I love the TV show TMV. From the music to the fast and funny graphics, to Harvey (I'm a lawyer), it is a hit in my book. They love to capture legal events involving celebrities, btw who doesn't?

Just last week they showed the sentencing of Chad Johnson aka Ochocinco for some domestic violence charge in Florida. His lawyer did a great job of negotiating a plea bargain for his probation violation to just some community service hours and counseling. In other words NO JAIL TIME!

The General Rule

Plea offers between the District Attorney and the defense attorney are generally accepted by Judges but the Judge is always the ultimate decider. In this case all was well, and proceeding quite smoothly until the million dollar question that many judges ask at sentencing to avoid appeals was posed:

"Were you satisfied with the representation of your attorney?"

The basis of most appeals is inadequate representation (AKA Ineffective Assistance of Counsel) so if you say, "I was satisfied by my lawyer's representation at final sentencing" this issue is off the table so to speak. Judges want to avoid repeats, and appeals, they only add to an overworked and underfunded calendar.

In this case Ochocinco said, "yes" and added a slap to his lawyer's behind. Probably OK on the field of play or in a locker room but the Courtroom is another matter. Most people in Court laughed in amusement at the gesture but the most important person there found no humor in the situation.

She remarked it was not a time for jokes or joking (she believed that he was not taking this serious) AND she set aside his plea offer, and then proceeded to sentence him to 30 DAYS in Jail.

These are my FOUR hard and fast sentencing rules for clients, break them at your peril.


Know the Judge's demeanor. If this is not a Judge that enjoys jokes, don't make any. If this is Judge that is conservative don't wear a liberal tie with pot leaves. Know who you are standing in front of.


Don't speak unless spoken to, and don't add anything beyond the questions that are asked. Think more and speak less. Sentencing is the final stretch so don't blow it. Until everything is signed and sealed this is a solemn moment. Uncomfortable silence is OK, don't feel the need to speak.


Sentencing is POST Plea, It comes after you have plead to something, so now is not the time to deny and lie. You have admitted to some criminal behavior, so OWN it. Take responsibility, and be accountable if asked.


Judges love sincere apologies. Don't offer it if IT is NOT sincere, things will only be worse. That said if you can offer up a coherent and heartfelt apology do it.

Lawrence (Larry) Newman, D.C., Esq.
Doctor of Chiropractic
Attorney and Counselor at Law


Your New York Driving Privileges: Why Tired Driving is Not Innocent Driving

Weather or tiredness or speed? from gregjolly.typepad

I get lots of phone calls asking for direction and advice. I wish I could caution people before the fact that talking to the police is not only stupid but dangerous. You are feeding them. Think about giving a lion a steak before he eats you. The steak is your statement.

So someone gets into an accident, maybe no other car is involved, the police come to investigate. You tell them you were tired, you were sleepy, and that's what caused your "poor" driving behavior. You think oh, I wasn't high, or drunk, or speeding, or careless I was just tired. Seems so safe and innocent? Right? WRONG!

the baby lamb- from fair-isle.blogspot
cute and vulnerable

You are a baby lamb. Ready to be slaughtered. If you are driving tired or sleepy that is NOT a good thing. The police will now report you to the DMV. You will now be under investigation for a potential medical issue that makes you a dangerous driver.

G-d help you if you have a medical history that is less than perfect because you are now a suspect license holder. You are now under review by the powers that be. You are no longer an innocent person. You must now prove yourself well, prove yourself fit, prove yourself safe, and prove yourself worthy of keeping you driving privileges.

Heart Conditions, neurologic conditions, sleep issues, breathing issues, brain disorders, you name it can be a problem for you not only on the physical level but now on a license (permission) level.

Dr. Lawrence Newman
Doctor of Chiropractic
Attorney and Counselor at Law


Baby Boomer, Alcohol, and a Stop = Police DWI Suspicion?

Police Suspicion: A "feeling or belief" by law enforcement that someone is guilty of an illegal, dishonest act, violation, or crime.

We supposedly live in a country where you are innocent unless proven to be guilty of something. Unfortunately these days it is reversed. Guilt hangs over us, like a dark cloud. Everybody walks, talks, acts, drives, and drinks with an underlying or overlying suspicion. As a favorite judge of mine loves to quip about those charged (alleged) with crimes, "they must be guilty of sumpin'?"

Yes, we are the walking wounded, and the driving guilty. Even after just one drink we become suspicious, even though it is legal to drink and drive, just not to be impaired and drive, or to be intoxicated and drive.

Today I focus on the baby boomer because I am one, but the overweight, the overtired, the uncoordinated, and the anxious will all be in the same boat. Anything that limits our ability to perform under pressure is a DWI liability and handicap. All problems associated with an aging body will suffer at the hands of a DWI investigation.

First Question after a POLICE STOP:

Have you been drinking?

If the answer is yes, then game on. Any and all of your behavior is suspect. You are now under the harsh lights and about to receive close scrutiny.

When do the Police switch to DWI mode?

Police Investigation for DWI begins the moment they smell it, you admit it, or they think it.
DWI mode may even begin before they pull your car over if it is late, if you are leaving a bar, or if your driving is erratic.

You are now guilty until you prove your innocence. You are now "A Suspect."

These days I caution people, especially baby boomers against "any" drinking and driving. The combination of your maturity, chronic tiredness, and alcohol can present a bad case. What you might call a Suspicious Situation.

Going from the dream to the nightmare.

You are having a spectacular day. The weather is perfect. Visiting the beautiful Finger Lakes wineries, and having a taste here and there. Sampling the local flavors. Between the Ithaca restaurants, Cayuga Lake Wineries, Seneca Lake Wineries, and cheeses you could lose yourself in the day. There are so many places but visit too many and/or lose track of your speed and/or get lost and your carefree vacation is about to shift.

A Moving Violation Plus Alcohol = DWI Suspect     

Being a suspect is horrible. Everything is seen through a prism of guilt. Nothing is believed. You are behind the eight ball in their game with their rules. A game that is loaded, baited, and set up for you to ultimately lose.

So enjoy our area, our resources, and soak up the beauty but use car service, taxi, or a designated driver. You want to avoid having to prove your innocence.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law


Tuesday, June 4, 2013

Cortland Elmira Lawyer Why New York Traffic Tickets Tell You Nada

One of the questions I have to frequently answer as an Upstate Attorney is:

Why is that New York traffic tickets (UTTs/Uniform Traffic Tickets) don't tell you how to pay?

They don't tell you what to pay? Basically (the tickets) give very little in the way of direction on what to do next. Only check off a box, guilty or not guilty? do you want a supporting deposition? What if I plead guilty? then what? Questions only lead to more questions.

Who do I pay? Where do I pay? Maybe even, can I just pay this? People (let's call them violators) just want to be done, they just want to put it behind them.

I guess in comparison with Pennsylvania, New Jersey, or even Florida where the tickets have very specific itemized amounts to pay in fines and/or clear cut options (traffic school/diversion) our tickets are antiquated. Much like our system of little village, town, and city courts with night hours, afternoon hours, and non-lawyer judges New York tickets are caught in a time warp.

Bottom Line: You don't know from looking at the ticket, what it will cost or how many points will be assessed. Try calling the Court looking for answers and you may be in for another surprise, these are mostly part-time courts with part-time staff (clerks) and they are rarely there. Some have machines (answering machines) where you cannot leave a message. Some have office hours two or three hours a week. As in please call back between the hours of 10 and 12 on the third Tuesday. I kid you not.

More important things to know:

FIRST: New York courts have wide ranges of punishments for most offenses, including traffic violations.

Ticket fines can range from $ 0 to hundreds of dollars. It is completely in the Judge's discretionary powers.

SECOND: New York courts will potentially assess: points for each ticket, fines for each ticket, a NYS surcharge per ticket, and maybe even a three year NYS DMV surcharge per the points.

THIRD: Even if you get a plea bargain (plea offer) from a District Attorney's office the Judge can choose to accept or reject it entirely or in part. Again this is in their discretion as Justices.

 Caveat Violator in treading these waters. You can always do it alone or you can hire a seasoned navigator familiar with these changing seas. The choice is always yours.

Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

Practice focused on traffic, DWI, and criminal defense within the Finger Lakes area of NYS.