Saturday, November 30, 2013

Where Does Criminal Law Come From? Driving with a Cat

I am amazed sometimes that people will look up the law on a given topic, and then start to lawyer their own cases. Is it really just that simple? Well in some respects it can be but in so many others it is most definitely not. I have even seen other attorneys fall into this same trap. The trap of thinking, "well I'll just look up," "I'll just see what it says about this and that."

Where Does Criminal Law Come From?

Law is written by the legislature. It is enacted (put into legal ease), and then it is applied (by law enforcement), and then it is interpreted by the Courts. So let's take those one at a time:

Enacting law comes with a purpose behind it. The men and women entrusted to this process seek to avoid or minimize harms. After all law exists to allow us to live together peacefully or at least socially. This is not always the case but it is the optimistic goal. We as attorneys will often look to "legislative intent."

We will research to discover what were the legislature's intention in writing a specific law. This may be found in committee notes or in many paragraphs of overly verbose political jargon. Regardless, they had a purpose or should have had a purpose behind what they created. If the purpose behind the law was to prevent a specific harm or to affect a specific group or had an underlying agenda then this must be considered by lawyers, the Courts, and by the Judges who shall ultimately apply it to people.

Application of law is found in it's history of enforcement. How have the police, and the prosecutors used this law to charge and prosecute crime? Has it been enforced fairly? Has it been enforced evenly? Has it not been enforced at all? Some states, like New Jersey have a death penalty that has never been applied. A law without use, is it really a law at all?

Interpretation of the law is probably it's most controversial, complicated, analyzed, and argued area. Attorneys, and Judges will pick the law apart bit by bit to dissect it layer by layer. Judges in states like New York look to case law (law that has been on the books for hundreds of years) to make their decisions.

Legal cases are no more or less than stories. Stories about people that have had run ins with the law and have tested it. Testing and challenging the law may uncover weak areas. Maybe the law has words or terms in need of updating to the current times or current social norms? Maybe the time has come to abandon old definitions or old interpretations. Maybe there is a new shade of grey in a particular area.

Holly crap Tabby, People do love their cats.

Bringing us to DRIVING WITH A CAT, my new made up New York City law. The way things are going in NYC these days nothing surprises me. Mayor Bloomberg wants to legislate and enforce laws about the size of soda, the purchase of cigarettes, and you name it so ,,,

You can no longer drive a car with a cat in it. It will now be an unclassified misdemeanor punishable by one year in jail, and up to three years probation supervision to drive with a feline inside your car.

To properly defend those charged with this new crime we would have to know a few things about this new law:

1. Why did the legislature enact this new cat law? Was it to avoid the harm that cats might cause with distracted driving? Then I guess a sleeping cat might not be a bad thing (unless it was extremely cute whilst sleeping). Was it to avoid a cat from getting inside the steering wheel? Then maybe fatter or larger cats might not be an issue. Would a cat in a box or a bag be a call for concern and prosecution?

2. How should law enforcement or how have they charged this new crime? Did they smell the odor of a cat, and proceed to look for one in the cars? Would that be probable cause to further investigate this new crime? Did the Trooper see cat nip or cat treats, and assume that there must be a cat on board? Were you wearing an I love cats shirt, was that enough for the Deputy to then go look for a cat in your car?

3. How have the Courts held up the Driving with a Cat (car) law? Has it only been applied to small kittens? Has it only been applied to those with randy cats that move and jump around a lot in cars? Would a sleepy, listless, and tired cat be a cause for concern? Has it only been applied to ugly cats historically?

In cat after cat case what has stood out? Is driving defined as a "moving" car? Or has driving been defined as any intent to drive with a cat? Would walking to or from your car with a cat in hand count?
If you had more than one cat could you be charged with multiple counts of this new law?

LAW is more than Words in a Statute

So law is often more than what the legal statute says, law is more than what the ticket says you did, and law is often much more than what you see on your favorite TV shows. Law comes from someplace, and then is set in motion. Understanding that birth, and development is a kin with understanding the life and psychology of a person. I believe that criminal lawyers that go on that archeological dig of sorts are richly rewarded because they can use that knowledge and understanding to best defend their clients.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 470 blog posts, dozens of articles, and over 450 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.