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I am an attorney admitted to practice law in New York and New Jersey with a concentration on criminal law.

Monday, January 24, 2011

Westchester Cops admit protecting their own from DWI

The  Journal News reported that police officers where not making arrests of their brother police officers for driving while intoxicated (DWI / DUI) charges.  The Journal News - Westchester reported the following:
"If you can get them a ride home and put their car someplace safe, that's what you do," said one central Westchester patrol officer who agreed to speak anonymously. "It's kind of an unwritten rule. You don't jam up another cop unless you have to."
The article went on to say:
In conversations with 10 police officers who spoke under the condition that their names and departments not be identified, all told The Journal News that off-duty cops are rarely charged with driving while intoxicated unless they were involved in an accident.
Four accidents involving allegedly drunken drivers within a three-week period is hardly unusual in Westchester. What made these stand out were the drivers: All were off-duty law enforcement officers, and all now face misdemeanor charges of driving while intoxicated.
At a time when police brass are pushing DWI crackdowns, which have led to a record number of arrests, the recent cluster of crashes allegedly by drunken police officers from Dobbs Ferry, Westchester County and White Plains, plus a county correction officer, has been an official embarrassment and a public eye-opener. However, police say it's not completely surprising, given that many in law enforcement quietly turn a blind eye to drunken off-duty officers when they're stopped.
"That's a situation that you can't hide," said one officer. "I'm not going to risk my career in a case like that."
Even when they are arrested, law enforcement officers, familiar with the legal system, do what they can to protect themselves. In the recent cases, White Plains Police Officer Zepeda, county Officer Kraus, Dobbs Ferry Officer Huffman and Correction Officer Yancy-Johnson all refused to submit to chemical tests that determine blood-alcohol levels, despite knowing that their driver's licenses could be automatically revoked for a year.
"I would never submit to the test, because I wouldn't want to give (prosecutors) any evidence that would help them prosecute me," said one police officer who has made several DWI arrests in the past year. "Better to let my lawyer fight to keep my license."
That's exactly what defense lawyer Andrew Quinn did for Huffman, who is accused of losing control of his car and rolling over while speeding down a curvy roadway Dec. 11 in Tarrytown.
Huffman handed over his license at his Dec. 16 arraignment in Village Court. A week later, his license was returned to him at a "refusal hearing" required by the Department of Motor Vehicles when someone declines to take a chemical test. Huffman still could lose his license, depending on the outcome of his criminal case.
The automatic revocation "was dismissed for lack of evidence," said Quinn. "It's not uncommon for individuals charged with DWI to refuse to take the test."
That's because, without chemical proof of drunkenness, the arresting agency has a high burden of proof, particularly before the DMV judge.
"There are a series of predicate acts that have to take place before the DMV will take your license," Quinn said.
Among other things, prosecutors must demonstrate that the driver was clearly warned that his refusal would lead to revocation and that the driver persistently refused the test.
"And all of it has to be testified to by firsthand knowledge," Quinn said. "All of the correct officers have to show up. It may require two or three officers, and a lot of times that doesn't happen."
Attorney Harold Dee, a former New York City traffic judge, suggested that police intentionally botch their cases against fellow cops.
"They're all in the brotherhood, so I don't imagine all of the prosecuting cops are going to show up," Dee said. "It's the famous blue wall. If they do show up, they're going to 'dump,' say, 'I didn't see this or that.' "
It's still rare that police officers even get arrested for DWI, or any other driving infraction, he added.
"When did you ever hear of a cop even getting a speeding ticket?" Dee asked. "You don't think cops speed? Who ever writes a cop up? It's the unwritten thing. It's not done. It's the sense of brotherhood they have. They take care of each other. It's only cases like this (crashes) where it comes to the surface. There's no way to cover it up."
Even in these cases, Dee said, officers know not to provide any further incriminating evidence. They often refuse to take field sobriety tests, as is their right. They refuse to take breath tests because even a low alcohol reading can lead to a conviction. At 0.05 percent - the equivalent of consuming as little as two drinks - they're guilty of driving while impaired. If they measure 0.18 percent, they would be charged with aggravated DWI.
"This is the real world," Dee said. "That's why these guys don't blow, because you've got to be stupid to blow unless you know you've had, say, one glass of wine and a big burger with it, and you know you're not guilty."
Westchester District Attorney Janet DiFiore said DWI prosecution has been a priority of her administration. She said her office has "tried to change the culture that has existed around DWI crimes."
"We're looking to erode the culture of tolerance and to make sure that all of us in law enforcement are responding in the strong and effective way that we should be," DiFiore said.
Told that a number of police officers admitted anonymously that they try to cover for off-duty officers driving drunk, DiFiore said she was "very disappointed" to hear that.
"DWI is a very serious crime, no matter who that crime is committed by," she said. "It puts the individual in danger and it puts everyone else and everyone else's family in danger. Am I surprised to hear that? I'm not sure that I'm surprised, but I'm certainly very disappointed."
Although she would not comment specifically about the recent cases, DiFiore said chemical test refusals are a major issue in DWI prosecutions.
"The refusals are very problematic," she said. "These can be very difficult cases to prove, especially when someone refuses to take the chemical test that gives us the evidence we need to go forward."
For that reason, DiFiore said, her office plans to look for ways to strengthen the refusal law.
"We're going to be looking (at) the refusal law and the consequences for refusing to take a chemical test," she said. "We want to make certain that we're pushing for consequences that are harsh enough to be a real deterrent."
In the meantime, the cases involving the four officers accused of DWI crashes are making their way through local courts.
The officers have been suspended by their departments - Zepeda without pay - pending the outcome of their criminal cases. Yancy-Johnson, who is accused of striking an ambulance Dec. 27, has been allowed to continue working at the county jail, though her privileges to drive a county vehicle and carry a weapon were suspended pending her case in Greenburgh.

Friday, January 21, 2011

N.J. Supreme Court rules refusing Breathalyzer cannot be used to enhance DWI sentences

Prior convictions for refusing to take a Breathalyzer test will no longer be counted against motorists when they are sentenced for driving while intoxicated, the state Supreme Court unanimously ruled today.
The court found under state law, convictions for refusing a Breathalzyer and DWI convictions are not interchangeable, and can’t be combined when determining if a motorist is a repeat offender. The penalty for both offenses steepens as the number of prior convictions rises.
A South Jersey lawmaker today denounced the court’s decision and vowed to change the law.
"I see this as lessening the severity of the penalties for DUIs," said Assemblyman Nelson Albano (D-Cumberland). "I believe the Supreme Court is actually setting us back."
Albano, whose son was killed by a repeat drunken driver in 2001, pledged to introduce legislation that would raise the penalties for refusing a Breathalyzer to match the penalties for failing the test.
The court found state laws on convictions for refusing a test and DWI were intended to be separate.
"If the Legislature wanted to treat a refusal conviction as an enhancer for DWI ... it would have had to do so in clearer language," temporary Justice Edward Stern wrote.
The decision overturned the sentence of Eileen Ciancaglini of Monmouth County, who was pulled over in Rumson for reckless driving in 2008. She was charged with DWI after a Breathalyzer test put her blood alcohol level at .17 percent, over the legal limit of .08 percent. Ciangaclini had a prior DWI conviction from 1979, and was convicted of refusing a Breathalyzer in 2006.
The Rumson Municipal Court treated her as a third-time offender. She was sentenced to six months in jail, a 10-year license suspension, a $1,006 fine, and 12 hours at the Intoxicated Driver Resource Center.
A court on the Law Division overturned the sentence, treating Ciangaclini as a first offender. She instead received a $500 fine, 30 days in jail, a 12-month license suspension, and 12 hours at the Intoxicated Driver Resource Center. An appeals court then reinstated the original 10-year license suspension. Today, the Supreme said the law does not allow that.
"Neither the revisions to the DWI or refusal statute, nor any accompanying statements referred to us, suggest any integration of refusal convictions into DWI sentencing," Stern wrote.
Ciancaglini’s lawyer, Stephen Pascarella, called the decision "a victory for the intellectuals of the world."
"The Supreme Court is doing what they’re supposed to do, they’re interpreting what the Legislature has done," Pascarella said. "That’s why we have the separation of powers."

Tiffany's New York Jewelery Store Victim of Driving While Intoxicated NYPD Police Officer

The New York Post reported that an off-duty police officer by the name of Raphael Ospina crashed his car into the front windows of Tiffany's Jewelery store after jumping the curb.
Officer Ospina who is 27 years old was driving on 57th Street when he collided with a garbage truck turning on to Fifth Avenue at about 3 AM. Police Officer Ospina has been on the New York Police department for 7 years. No further details were released.

Saturday, December 11, 2010

Criminal Justice - Drug Treatment Works -Brooklyn Treatment Court

I had the honor and the pleasure to attend the Brooklyn Treatment Court (BTC) Dismissal Calender Graduation on Thursday December 9, 2010 in Brooklyn, New York. On that date the Honorable Jo Ann Ferdinand, the presiding Judge of the court since its inception in 1996 was the master of ceremonies as the Project Director Joseph Madonia and his staff announced the graduates, thirty seven in all.
Several of the graduates described their unique journeys to the audience of family members, friends, BTC staffers, representatives of sponsoring agencies, lawyers and court personnel.  Each of the graduates had been arrested for narcotics crimes and demonstrated a need and a desire to become sober and productive.  Each of the graduates went through detoxification, counseling, some inpatient, some outpatient treatment, community service, some participated in a book circle others were on the BTC basketball team, on going drug screening and updates to the judge by the caring and tough BTC case managers.
Not all the journeys were smooth, but the case managers did not give up on anyone.  In the end all thirty seven participants reclaimed their health, their families, their self respect the respect of the judge and had their cases dismissed and sealed as a reward for their enormous efforts.  They were no longer defendants but active and healthy members of society.
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Friday, December 3, 2010

Bergen County New Jersey Court Ruling DWI "Cocaine Hangover"

A man by the name of  Kenneth Verpent was found guilty by a jury of driving while intoxicated in a Bergen County, New Jersey court despite the fact that his blood alcohol level was zero and that he passed the field sobriety tests administered by the police on the scene of a horrific accident that left a women by the name of Sabrina Patrick's spine fractured. It was reported by The Bergen Record that at the trial evidence was produced that Verpant tested positive for cocaine based upon a urine sample.  The expert testimony adduced by the prosecutor was that cocaine use after the high is over,  leaves the user depressed, drowsy and fatigued.  The expert, Forensic toxicologist H. Chip Walls from the University of Miami opined that cocaine stays in the human body for only a short time and then the "cocaine hangover" occurs. 

Apparently, the rebound or hangover effect of the use of certain substances has an effect even after the "desired purpose" for taking the substance has worn off.
So the question is can the "hangover" effect theory of prosecution be applied to drivers that may be impaired by the use of prescription drugs if the substance can be traced in their bodies?  Stay tuned.
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Sunday, November 21, 2010

Spector Law: Who really cleaned up after September 11?

Spector Law: Who really cleaned up after September 11?: "It was announced this weekend that an agreement was reached to settle the lawsuit made by the workers that cleaned up after September 11. T..."

Who really cleaned up after September 11?

It was announced this weekend that an agreement was reached to settle the lawsuit made by the workers that cleaned up after September 11.  The settlement totals at least $625 million to go more than 10,000 workers who cleaned up the most heart wrenching and violent event ever on American soil.  The settlements are ranked and payouts will range from $3,250 to $1.8 million or more to each claimant based upon the severity of their injuries.  The question I have is why weren't these workers better protected in the first instant?  Why weren't these "first responders"  better protected from the dust and fumes?  What tests were performed by the government to declared that the air was safe to continue the recovery effort?  As I watched the recovery effort being made by the proud and brave workers on television it resembled a science fiction scene from another planet.  A destroyed and broken planet.  When Christine Todd Whitman of the Environmental Protection Agency and former New Jersey Governor announced the air was safe for the workers to work in, it struck me as incredible that the air was safe.  Even from my vantage point, viewing the dust and fumes rising from the ruins as I watched the recovery efforts unfold on television it seemed anything but safe.  The question remains how adequate were the efforts made by the state and federal governments to test the air and make certain that the workers were safe as they did the dirty work for the families of the victims and the dirty work of our state and federal representatives. 
So who really cleaned up after September 11?  The first responders, their families and the generations that follow in their footsteps.  Let's just hope that if there is ever a next time we get the outpouring of help that we got after this great tragedy and this time the responders are protected.
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