New York Legal Blog

The rules governing driving while intoxicated ("drunk driving") in the State of New York are contained in the Vehicle and Traffic Law, from sections 1192 through 1199. To be charged with DWI in New York, the operator of a motor vehicle must have a blood-alcohol concentration (BAC) at or above .08 percent in the person's blood or urine. This is measured by chemical testing of the person's blood, breath, urine or saliva. Frequently, when a driver is stopped for an alleged DWI violation, they are asked to perform a test, known as a "Field Sobriety Test".

The Field Sobriety Test can include any of the following: Checking the person's balance, (request to stand on one leg) coordination, requesting that he or she count forwards, and backwards, or recite the alphabet in the same fashion. Additionally, the police officer may ask the driver to take a simple breath test known as an "Alco-Sensor." If the officer determines that the driver has failed the Field Sobriety Test, they are arrested and brought to the local precinct.

Importantly, the results of the hand held Alco-Sensor breath test are not admissible in Court. Thus, within 2 hours of arrival at the precinct, the driver will be asked to submit to a chemical test by either a breathalyser, or a sample of their blood or urine. It is in this stage of the process that the charges frequently become more serious. The officer will request that the driver submit to the breathalyzer. The driver will often state: "I already did that when I was arrested.", not realizing that the Alco-Sensor is a not the same as a breathalyzer, and that they are now in the process of a "refusal."

The refusal to take a breathalyzer, or submit blood or urine samples, has separate and additional consequences, leading to additional fines, the potential revocation of the driver's license, and the requirement to appear for a "Refusal Hearing" before an administrative judge at the Department of Motor Vehicles. The refusal hearing must be held within 15 days of arraignment.

At the arraignment, the person will be required to surrender their driver's license, pending the outcome of the criminal charges. The critical issues at the inception of the criminal case are twofold. A check is made to determine if the driver has a criminal background (commonly known as a "rap sheet"). Secondly, the results of any chemical test must be evaluated and exchanged with the lawyer representing the driver. Generally speaking, neither the rap sheet nor the chemical test results are available at the time of arraignment.

If the rap sheet comes back "clean" (no prior convictions for alcohol related offenses), and the findings of any chemical test show that the driver had a blood alcohol level of .08 or less, and there has been no serious injury or property damage, the charges are generally reduced to driving while ability impaired, or "DWAI." This reduction in the charges is critical for several reasons. First, the DWAI is a violation, not a misdemeanor. Secondly, the fines are significantly less for a DWAI than a DWI. Third, the driver's license is suspended for three months, rather than the 6 month revocation of the license for conviction of a DWI.

Continue reading "The Basics of DWI's in New York" »

Posted by Mark Siesel | Permalink | Email This Post

Posted In: DWI/DWAI in New York

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This past week, the Immigration Bureau of Customs Enforcement http://www.ice.gov/ conducted two raids of residential buildings in Mount Kisco, New York, apparently for the purpose of apprehending a fugitive who has multiple criminal convictions and is in the United States illegally.

These raids were performed in the early morning hours with the assistance of the Mount Kisco Police Department. The fugitive was not apprehended, but approximately twenty men were arrested and taken to a Manhattan ICE facility, charged with immigration law violations. Of the approximately 20 men arrested this past week, 11 were taken to an ICE detention facility in New Jersey and have been placed in removal (formerly known as deportation) proceedings. The others had green cards or other documentation that kept them from being detained.

Recent raids at day laborer sites in Connecticut and in New Bedford, Massachusetts have drawn media attention in recent weeks. The arrests at work sites and residences have led to a "Stop The Raids" campaign in Connecticut. Although ICE officials claim that they were looking for a sole fugitive in New York, questions have arisen due to the amount of officers and vans involved in the two operations.

The detained workers, most of them otherwise law abiding, who provide cheap labor for industries, employers and local residents, will now have to negotiate immigration laws which for many of them will inevitably lead to extensive detention and ultimate removal from the United States. Unfortunately, there does not seem to be any clear consensus in either house of Congress as to resolution of the immigration issue. Early optimism after the Democratic takeover of Congress this past November for an Immigration bill which would allow millions of undocumented immigrants to adjust their status in the United States through a combination of education requirements, fines, and payment of back taxes now seems to be hopelessly stalled.
Previous proponents of immigration reform such as Senator John McCain are now backing off of their support due to presidential aspirations and objections from their constituents.

Posted by Mark Siesel | Permalink | Email This Post

Posted In: Immigration A to Z

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Let's say you are at the supermarket, shopping mall, hardware store, or even walking on the sidewalk in New York. Despite walking carefully and in no hurry, you slip on ice, a foreign substance, or maybe you trip over an uneven portion of sidewalk. What are the general rules governing slip/trip and fall accidents?

If you slip and fall and there are people around, (even if you are in a lot of pain), try to get the names, phone numbers and addresses of any witnesses. They will be critical if you plan to pursue a claim, and too often, the identity of these witnesses (even if they have stopped to assist you) is lost once medical help arrives. Remember that insurance companies and the attorneys who defend their insureds are notoriously skeptical people, and always assume that the accident was your fault--i.e. not looking where you were going, in a hurry to get to an appointment, you're unsteady on your feet, or perhaps you were wearing the wrong type of footwear for inclement conditions. In our firm's experience, when we have a witness who can corroborate our client's version of the accident (especially someone who never met the client before) cases tend to settle well before they ever reach trial and frequently in the early stages of the claim.

The next critical thing to remember is to take photographs of the scene of the accident, if at all possible. The ice will melt, the spilled cleaner will be removed, and even that defective section of sidewalk will very often be repaired by the time you walk into the lawyer's office. Thus, if you have a camera phone, or if a friend or the witness has a camera, take photographs of the condition--We can't emphasize this enough!

It is vital that if your accident happens at a store, restaurant, or other place where the public is invited, that you report the accident. Insurance companies will always refer to the "unreported accident" as a basis for the denial of a claim, and thus reporting of the accident is instrumental to a successful claim. Further, make every effort to obtain a copy of the report, especially if you are asked to sign it. Otherwise, the attorney will not know what is in the report until the case is in litigation--no insurance company exchanges an accident report until their lawyers tell them to do so.

If you rent an apartment or house, and there is some dangerous condition on the premises, such as a broken or uneven stair, lack of lighting, or the landlord fails to sand or salt the driveway or stairways, make sure you send a written report of the condition to the landlord's attention; in fact, send the letter by certified mail. Subsequently, if you are in an accident due to one of these conditions, the attorney will be able to establish written notice of the condition prior to the accident, which is essential if the case goes to court.

If you are injured in an accident on a public sidewalk or property, a notice of claim must be filed with that municipality within 90 days after the accident, so it is essential that you consult a lawyer immediately. Many municipalities have codes which establish that you may not sue unless the municipality was given written notice of the defective condition prior to the accident, which obviously is virtually impossible when you have fallen on a transient condition like an icy sidewalk.

Lastly, keep in mind that if you fall on ice or snow during the course of a snowstorm, the law prevents a claim from being made; the property owner has several hours after the storm has stopped to remove the snow or ice from his premises.

Posted by Mark Siesel | Permalink | Email This Post

Posted In: Slip and Fall Accidents in New York

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U.S. Citizenship and Immigration Services (USCIS) has proposed to adjust fees for naturalization applications and petitions. The idea behind the increase is to improve customer service, allowing applications and petitions to be processed more quickly and close security gaps.

Emilio Gonzalez, the Director of USCIS, noted that: “As a fee-based agency, we must be able to recover the costs necessary to administer an efficient and secure immigration system that ultimately improves service delivery, prevents future backlogs, closes security gaps, and furthers our modernization efforts.” After a complete review of the present system, USCIS found that the current fee structure does not allow USCIS to recover the costs of providing services to adjudicate millions of applications and petitions.

USCIS projects that the revenue from a new fee structure will enable a 20 percent reduction in average application processing times by the end of fiscal year 2009, and will cut processing times by the end of fiscal year 2008 for four types of applications. These applications are the I-90 (Renew / Replace Permanent Resident Card), I-140 (Immigration Petition for Alien Worker) and I-485 (Adjust of Status to Permanent Resident), which will improve to four months from its present six months processing time, and the N-400 (Naturalization), which will improve to five months from the present seven months processing time.

The fee increases would add an average of $55 to the current cost of immigration applications, and increase the biometrics (fingerprints) fee by $20. USCIS proposes to increase fees for naturalization applications by 80%, from $330 to $595. Further, the fees for permanent resident applications would be increased 178% from $325 to $905. This is the first overall fee review the Immigration Service has performed since 1998.

The proposed fee increases will be available for public comment at www.regulations.gov for a period of 60 days, beginning on February 1, 2007. The proposal does not raise fees, but the USCIS is simply announcing its intention to do so.

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Posted In: Immigration A to Z

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The deposition is the most important pre-trial procedure in accident cases. Thus, it is critical that the client is well prepared for the extensive and rigorous questioning they are likely to undergo by defense counsel.

We recommend strongly that you prepare the client for their deposition the day before, although the norm is for preparation 1-2 hours before the deposition. This method takes into account the fact that your client is likely to be nervous and will be able to retain more information knowing that they have as much time as necessary to prepare.

Remember that whatever documents the client reviewed in preparing to testify must be exchanged with opposing counsel--thus, make sure that the client has not reviewed documents without informing you. Further, don't allow your client to write down information that you discussed--there are numerous accounts of lawyers preparing instructions for their clients which then become discoverable at the deposition.

When the client is testifying about the accident, the best answer is a short one--i.e."Yes", "No", "I don't recall", and information must not be volunteered. Further, clients MUST be instructed not to guess or speculate about critical information such as the speed of their vehicle--experienced attorneys can make mincemeat of inaccurate testimony using a simple formula used to calculate time, speed and distance.

However, and this is vital, when testimony is being given about their injuries and damages, you must ensure that your client gives descriptive and expansive answers, with adjectives liberally used. For example, we caution our clients not to use words like "discomfort", but rather, simply, "pain", and make sure that they describe the pain with adjectives so that a jury can perceive what they are experiencing. Words like "jarring", "excruciating", "like an electric shock" have a much more significant impact. Remind the client that this is a dress rehearsal for the trial, and if their injuries come across as minimal at a deposition, they are likely to be viewed by a jury in the same way.

The impact on pre-accident activities is also critical--instruct the client to recreate from the moment they get up in the morning until bedtime, and include chores, recreational activities and simple things like the impact on personal grooming. For example, difficulties in being able to dress oneself can be very powerful and persuasive testimony, yet clients frequently neglect to mention this (possibly due to embarrassment), and focus on the inability to engage in recreational activities, which jurors are more likely to minimize.

Posted by Mark Siesel | Permalink | Email This Post

Posted In: Successful Injury Case Strategies

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In New York personal injury cases, the videotape is a frequently used tool of defense lawyers, and can be very damaging at trial if the video contradicts the client's deposition testimony concerning their physical limitations as the result of an accident.

In order to properly prepare clients for the likelihood of the surveillance video, we recommend the following:

1. Advise the client to warn neighbors that they expect videographers to come by, seeking information as to their daily schedules and activities, and that the videographer will often claim that they are working for the client or need to speak with them about the accident;

2. Even if the client is not feeling the effects of an injury on a particular day and wants to "just see if I can do it", videotapes of your client changing a tire, lifting heavy packages, shoveling a driveway, or renovating the house are difficult to explain away at trial;

3. Let the client know, for example, that there is a strong possibility that they will be on surveillance going in and out of the insurance company doctor's office, and must not choose that day to see if they can walk without using their cane!;

4. Defense lawyers will always ask about vacations (which might have been planned well in advance of an accident) and attendance at family gatherings (weddings are a classic example). Videotaped activities such as water skiing, basketball, and dancing (even if the client took several painkillers in advance) will have a very damaging impact when jurors are asked to award damages for pain and suffering.

In summary, although many clients to their credit want to fight through the pain and live as normal a life as possible, during the pendency of an accident case, clients should be warned to be selective about where and when to return to pre-accident activities.

Posted by Mark Siesel | Permalink | Email This Post

Posted In: Successful Injury Case Strategies

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When clients are injured in various types of accidents in New York, including motor vehicle, slip/trip and falls, and other accidents due to unsafe conditions, they are invariably required to attend examinations known in the legal community as "IME'S." Simply put, defense attorneys and insurance companies retain doctors who are well known in the community as virtually never finding any permanent injury, disability or medical condition. Armed with reports by these so called "independent" medical examiners, who are more than happy to charge several thousand dollars to testify to their findings at trial, insurance carriers are emboldened to hold firm with either "no pay" or minimal offers of settlement, in the hope that plaintiff attorneys will not want to expend the time and money to litigate cases through trial--thus, cases settle cheaply.

Our firm has a list of instructions that we provide to our clients prior to these examinations, which we have found to be invaluable in cross examining insurance company doctors at trial. First, in many instances, the insurance company doctor's staff will request that the client fill out a complete questionnaire, as if your client was a patient. We instruct our clients that other than basic information such as name, age, and medical complaints, they should refuse to complete these questionnaires, which often are used by the insurance company doctors to attempt to obtain inconsistent facts or information not relevant to the case.

Also of great importance, these doctors frequently attempt to conduct a mini-deposition, with such questions as "Where were you looking just before the light changed?" or "Did you see the ice before you fell?". These deposition type questions have nothing to do with the medical examinations, and are clearly asked by the doctors for the sole purpose of assisting the defense attorney in litigating the case. Clients must be strongly cautioned that the only proper inquiry by the doctor during the history portion of the visit is as to the injuries, treatment, medications, pain, disability, and prior medical history.

Lastly, we request that our clients time the examination from the moment they enter the examination room until the time they leave the office. Why do we ask them to do this? For a simple reason. These doctors frequently do 25-40 of these examinations in a single day, and rarely spend more than 15 minutes from start to finish with the client. However, when they the doctor takes the stand, he or she will testify without blinking an eyelash that the examination lasted 45 minutes to an hour, and was thorough and complete. It is at this point that we ask the doctor a simple question: "Doctor, what if I were to tell you that I requested that my client time the examination, which in actuality, began at 10:45 and he was out of your office by 10:59? What would you say to that, doctor? " Without exception, this causes jurors to look directly at the doctor and wonder--is this co called "thorough" doctor lying to us?

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Posted In: Spotlight On the Insurance Industry

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Several insurance companies, and in particular, Allstate Insurance Company ("The Good Hands People") and State Farm Insurance Company ("The Good Neighbors") use a computer system known as "Colossus" to evaluate their personal injury claims. If Colossus decides that your case has little or no merit, no claims adjuster with the benefit of a police report, medical records, and hospital records can overrule or modify that decision.

Instead, Colossus considers a number of preliminary matters before looking at your individual case and injuries, including performing a "calculation" to attribute "severity points" to claims. As described by Ron Miller at marylandinjurylawyerblog.com, Colossus assigns a base severity rating, which is the starting point in the personal injury claim evaluation. Additionally, Colossus will evaluate the experience of the attorneys involved in the case and the venue of the action, After consideration of these factors, the system counts up the points and converts them to a dollar value.

By using Colossus, insurance companies try to reduce the value of your case, and won't take into consideration factors such as the pain of an individual injury, loss of enjoyment of life, the effect on marital or family relationships, or the inability to perform activities of daily living.

In our practice, we have found that in particular, companies such as State Farm and Allstate are particularly dismissive of soft tissue claims such as whiplash and bulging spinal discs, to the point that their goal is not only to discourage plaintiff attorneys from ever handling these claims, but to make it clear to their own insureds that they do not consider these cases worthy of consideration.

Posted by Mark Siesel | Permalink | Email This Post

Posted In: Spotlight On the Insurance Industry

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