Aggravated Unlicensed Driving, That's a Jailing

The Democrat and Chronicle (upstate NY) reports on the arrest and incarceration of a local resident for "aggravated unlicensed operating of a motor vehicle." This is from Victoria Freile's report:

A Honeoye man driving without a license is in the Ontario County Jail today on felony charges. Jean R. Doser, 41, of 8731 Main St. was charged with first-degree aggravated unlicensed operation of a motor vehicle, a felony, following a traffic stop on High Street in Victor yesterday evening, according to the Ontario County Sheriff’s Office.

Deputies said Doser’s license was suspended or revoked 22 times before yesterday’s traffic stop.  Doser was driving a car owned by 20-year-old Kayla Ross, also of Honeoye, as he traveled south through Victor about 5:35 p.m., deputies said. Ross was a passenger in the car at the time and was charged with facilitating aggravated unlicensed operation of a motor vehicle. Deputies alleged that Ross knew Doser did not have an active license and allowed him to drive her car anyway.

Doser was arraigned in Farmington Town Court and was remanded to the Ontario County Jail in lieu of $25,000 cash bail or $50,000 bond. Ross was ticketed and released. The pair will answer the charges in Victor Town Court at a later date."
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The context of this article would lead one to conclude that Mr. Doser is a well known problem child.  The website story doesn't describe him as a "local man" or "area resident," it uses his name, like everyone who conceivably reads this article knows this guy, and by implication--glad he's off the street.  Check the bond imposed on Doser for this alleged offense, pretty heavy, eh?  Slightly disproportionate?  From this perspective, seems so, but we don't know Jean Doser and I get the impression we are glad we don't.

Blown Breathalyzer Testing

Breathalyzer testing used in and around Washington D.C. has resulted in approximately 400 Driving While Intoxicated convictions since late 2008 based on faulty technology according to a report at the Washington Post.  Quite a few of these drivers went to jail.  According to the Post article these Breathalyzer machines often registered inaccurate readings 20% higher than appropriate. 

As I noted in a post recently there is a problem with basing convictions for traffic violations--like speeding, on police officer testimony, only.  Cleveland.com is reporting on a bipartisan legislative effort to reverse an Ohio Supreme Court decision that held a police officer's testimony alone is adequate to convict a driver of speeding. 

The lesson behind these reports is:  when in legal peril, . . . get a lawyer. 

Correcting Judgment

This is a fascinating story: a Marion County, Indiana traffic court Judge gave a woman on trial in his court for a license suspension a year in jail!  That's right, the defendant was guilty of a minor misdemeanor and the Judge went nuclear on her.  This is what happened next according to the Indianapolis Star:

"The Indiana Supreme Court could have simply reversed a woman's sentence for driving with a suspended license, a misdemeanor, and the rare one-year jail sentence that resulted. But on Thursday, the justices went further and slammed the behavior of the Marion County traffic court judge, whose handling of the case in February 2009 turned heads. It came soon after Judge Bill Young had moved to the post at traffic court, issuing stiff fines for some and sometimes employing a gruff manner on the bench. In the case that prompted this week's opinion, the justices have ordered a new trial.

Young admits he was agitated that day, and below you can read his response when I spoke with him today. (Short version: He agrees he was wrong.) During the hearing, the last on his morning calendar that day, Christian Hollinsworth had turned down a plea offer from a deputy prosecutor and then, once the trial was under way, changed her mind and asked to take the plea. According to the Supreme Court's opinion, Young said that if she was found guilty, 'she's going to jail for a year.' He continued: 'I don't know if I want to take your plea. I'd rather just go to trial, I think. I don't like being jerked around at all, all right?' The trial continued, and Young found Hollinsworth guilty.

Then, during sentencing a few minutes later, Young noted that she had picked up pending theft and battery charges while her license suspension case was pending. Her attorney pointed out that those charges were merely allegations at that point, prompting Young to respond: 'Sure they are.' He gave her a year in jail, though he later suspended the remainder after she had served 10 days.

After recounting this history, the Supreme Court's unsigned opinion cites Indiana judicial canons requiring judges to perform their duties impartially, competently, and diligently, with an open mind, without bias or prejudice, and with patience and courtesy to litigants. A personal bias or prejudice on the part of the judge -- or situation in which "the judge's impartiality might reasonably be questioned" -- would require the judge to disqualify himself.

The opinion concludes: 'The trial court's behavior in this case did not meet these standards.' A chastened Judge Bill Young told me today: 'I would say that, upon reflection -- and almost as soon as I was saying it -- I knew better. That was inappropriate on my part.' He said there was no excuse, even if he was frustrated that day. 'I should not have made those comments to that woman,' he said, adding that the Supreme Court 'did the exact right thing.'"

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Well, at least Judge Young recognizes he was intemperate, but it's appalling that this woman spent ten days in jail under the impression that she was going to spend a year, because a Judge had forgotten to take his metamucil. 

The earliest writings on the responsibilities of a Judge, emphasize repeatedly the need to exercise temprament, and mercy.  As I've said repeatedly here at Bad Lawyer, there is no more important place for this to be exhibited than in your municipal courts where most citizens see the "rule of law."  This  is why opinions like that of the Justices of the Ohio Supreme Court discarding the requirement of evidentiary proof of speed, for speeding ticket convictions as I discussed earlier this week are so pernicious.  We breed cynicism and disrespect over the "little injustices."  Although I don't think sitting in jail for ten days over a driver's license suspension is a "little" injustice. 

Good for Judge Young, though, he has a consicience. 

God Bless the Jury!

In my experience, law enforcement are rarely wrong in the eyes of the Court.  This was evident to me years ago when as a very young Bad Lawyer I sat in a municipal court and watched a gentleman successfully defend himself on a traffic ticket only to have the magistrate adjudge him guilty on the "incredible" testimony of the cop.  As I've pointed out on Bad Lawyer in the past I also have known Judges independent enough to stand up to the local police, but let's be honest, there is a lot of pressure on Judges to back up local law enforcement.   So absent a pretty strong, independent-minded judge, it is always the citizen's fault if the cops choose to give a citation.

So this account from the Kokomo (Indiana) Tribune, made me smile:

Kokomo police said Addie Etherington was completely at fault when she collided with a police squad car in 2009.  A Howard County jury, however, wasn’t buying the official version.  It decided Etherington didn’t commit either of two alleged traffic citations, rejecting police testimony Etherington failed to yield and made an unsafe lane change.

The decision could end up costing the city, which has already received notice from Etherington that she may sue over the Oct. 20, 2009, incident. Etherington collided with a brand new Dodge Charger, driven by KPD Officer Adam Martin, at the intersection of Monroe and Washington streets. Police said Martin and other officers were pursuing individuals wanted on felony charges when the accident occurred.  According to witness testimony, Etherington was stopped at the intersection, ready to turn west onto Monroe, when Martin’s cruiser came up behind her and attempted to pass her on the left. Witnesses disagreed as to whether Martin was using his siren as he came up on Etherington.

She turned into the police car, witnesses said.

Howard Superior Court 3 Judge Doug Tate, who presided over the trial, said that much was evident from the damage to Martin’s right-front quarter panel and Etherington’s left-front quarter panel.  Tate said Etherington may have thought she was clear to turn when she saw another police cruiser go by on Monroe Street in front of her.  'I think if she had heard or seen the cop behind her, she would not have turned,' Tate said.  But proving 'failure to yield' required convincing the jury Etherington should have known she was required to yield. Tate said he might have ruled the same way as the jury, if the case had been handled as a bench trial.

'Given all the facts, I can’t say the jury’s decision was the wrong one,' Tate said. 'I also don’t feel the officer was in the wrong, in any way, shape or form.'
The April 16 trial was punctuated by Tate admonishing KPD Major James Calabro from the bench.

A defense attorney saw Calabro and Martin conferring in a courthouse hallway during a break, in apparent violation of a court order separating the witnesses.  'I take full responsibility for what happened. I made a mistake,' Calabro said Friday. 'I meant no disrespect to the court, to Ms. Etherington or to the lawyers involved in the case. It happened and I offer no excuse for my actions.'

The Dodge Charger sustained more than $9,000 in damage, and last year, city officials said the matter would go to litigation as to fault.  They made that statement more than a month after receiving a tort claim notice from Etherington’s attorney, Matt Golitko, blaming the city for the collision.  According to Martin’s police report, which Martin said Calabro contributed to, Etherington complained of a bruise to her face. In the tort claim notice, Golitko said Etherington suffered 'serious injuries.' Kokomo attorney Erik May defended Etherington during the jury trial.

Tate said the jury deliberated for about 15 minutes before issuing a finding of “false” on the traffic citations. 'The reality of it was that we were forced to take it to trial,' Golitko said. 'We requested it be dismissed ... but the state wanted to proceed. I don’t think it’s any lawyer’s desire to go to trial on traffic tickets.'”
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Are you hearing what the Judge is saying--I'm telling you folks, this Cop caused an accident by foolishly trying to pass a driver be going left of center, and the Judge is saying:  the officer didn't do anything wrong!  Are you kidding me.  Notice, Judge Tate says, "[I] might have ruled the same way as the jury." 

Uh, Huh, good thing Mrs. Ethertington opted for a jury trial. 

Good judges, and good cops are a community treasure--but, God bless the jury!

Driving Pet Peeves

The Atlanta Journal Constitution has this report of a proposed traffic law; the traffic ordinance I've long regarded as desirable.  It is the Bad Lawyer's driving pet peeve--passing lane drivers who are slowing down drivers who are trying to use the passing lane, for passing!

Now I know what you're thinking, the Bad Lawyer must be an aggressive left hand lane driver who tailgates and mutters to himself.  Au contraire, mon cher--when I drive, I drive more or less in the right hand lanes of travel, amazed at the clueless wonders dawdling along in the passing lane of travel.  It's worse since the age of the cell phone.  The Georgia legislator, Mark Butler, who proposed the bill is quoted as saying, ""It is a safety issue when people use that lane as their personal driving preference [rather than as a passing lane, without regard to the rest of traffic]", Butler said.  Butler believes eliminating the problem might help traffic congestion. "We’re not trying to promote speeding," Butler added. "If you’re speeding or you’re tailgating in that left-hand lane, you’re still going to get a ticket."

Okay, I'm not really in favor of new tickets, but the idea makes me smile. Sick, huh?

Welcome to Traffic Court in Indiana!

Marion County, Indiana Superior Court has a policy, if you challenge your traffic ticket in court--Judge William Young will make you paymore,  a lot more!  Yes, folks God forbid you actually expect the local government to treat you justly and actually hear your case.  Let's guess, how often you'll beat a ticket in Judge Young's courtroom?

An Indianapolis attorney Paul K. Ogden is challenging the poicy in what the IndyStar.com calls a "class action" lawsuit.  Get this, another Indianapolis taffic court is reported to be issuing a policy assessing a $2,500 surcharge on tickets for motorists who challenge their tickets.  Oh, right that'll pass constitutional muster. 

Good luck attorney Ogden. 

Source: class action

Personal Liberty, Part deux

I was reading in our Hometown newspaper, the other day, that Our State has been quietly repealing school safety inspection rules. These rules were well-intentioned and related to important things like the depth of the spill basin on the water fountains. Apparently, enforcement of these regulations was cumbersome and the learned farmers downstate, er, legislators have been canceling the rules.

In the realm of safety, I don't believe that one can make absolute rules--if anyone reads this blog and disagrees, feel free to say so--but, the other day the geezer geniuses and moi--were debating just this idea in the context of the ban on public smoking. Apparently, even the home of Big Tobacco, Virginia has enacted a public smoking ban. I became a Bad Lawyer in the era when there were still ashtrays on elevators and the righteously offended person was the smoker who got the evil eye from some Old Broad on oxygen. We smoked on public transit, and not just cigarettes, if you know what I mean. So the world has changed and as an ex-smoker, I'm glad. I don't miss public smoking one little bit--and, yesterday morning I vigorously defended the smoking ban; let's face it, you really can't separate smokers from non-smokers in a public place. And really, smoke is carcinogenic--can we justify asbestos ceilings in designated areas of a public places?

If I haven't talked about it here, and I'm pretty sure I have--I'm an amateur road cyclist. It's something I've done on and off for many years. I wear a helmet largely because personal experience--entanglements with enraged drivers tells me that wearing a helmet might keep me off life support. A particularly bad fall in the Spring, sent me sideways into a chain linked fence head first, so I choose to wear one. Likewise, I rode a Vespa for a couple of years without a helmet--go figure? I can't defend the choice, but it is the one that I made. Even today when I ride my more urban, hybrid bicycle around Our Town I wear a baseball cap, not a helmet.

The Aussie videos made me think about the logic and rationale of helmet laws. I'm still pro-helmet--but, I hadn't really thought very deeply about the issue. Mike Rubbo, the Aussie filmmaker makes the point far more magically than I can--at the end of the second video--if you didn't watch it, please do.

Here in Your Hometown I live at a residence located midway between two flashing school zone signs that face away from my house. Directly across the street from my residence is a large parochial school on a wooded campus. The school building is set back at some distance from the curb. Generally, unless my schedule has me in court--I leave the residence at 6:45 am to drink coffee and solve the problems of the world with my Geezer pals. The traffic signals that operate at each intersection framing the city block are "flashing" instead of being fully operational. One morning recently I left later than I usually do. As I pulled on to the apron of the driveway, I looked to my left and saw the rush hour traffic lined up two abreast at the light which was fully operational. Having lived here for twenty-one years I knew I had to "insert" myself into the traffic flow or be an obstacle to this crowd of cars that uses my east-west avenue on its way into the downtown. There were no kids in the neighborhood, yet--no crossing guard at the corner, yet, no parents dropping off children, yet; and, no school buses present, yet. I accelerated out of my drive to the speed limit of 35 mph, and a police cruiser did a gnarly u-turn in front of the oncoming traffic to give me a ticket for violating school zone speed limit. The surly cop assured me as he strutted away from my car that he was "just keeping the kids safe."

One of the most aggravating things in the world for a lawyer is a traffic ticket, either one you receive or a ticket a friend or family member receives. You see, you can be Perry Mason and lose even a properly defended ticket. I have represented--for free (because how can a lawyer justify charging to defend an ordinary traffic ticket?), hundreds of family, friends, and other lawyers over the years. Generally, the local municipal courts will cut some sort of break, reduce the fine, dismiss "points" against your license, reduce charged violations, something to assuage the ticket-ee's outrage. But if you get into a dispute about the actual merits of whether the ticket should have been issued--forget it!

I fought the ticket. The ordinance provides that a person violates the school zone speed limit when driving faster than 20 mph during the time when the school zone lights are flashing and when children are present entering and exiting the building (check your local ordinance, they all say that--most traffic laws are patterned on a uniform laws enacted throughout the United States). At my "trial" which was delayed until a judge could be appointed who was not a personal friend of mine--the police officer testified to the facts, e.g. that I drove faster than 20 mph. I conceded this fact and moved for judgment on the ticket since there was no evidence or testimony that children were present.

After paying the $50 fine and court costs, I'm still pissed.

The court issued a ruling that at the hour I exceeded the 20 mph restriction I should have known that it was a school zone, because I have lived here for twenty-one years, and kids "could have been coming and going" since at the time I left my driveway it was "during the hours when kids come and go." Again, the court expressly noted the need to guarantee the paramount safety of children.

Actually, the only way my driving at 35 mph endangered children was if the police car that did a u-turn in front of the two lanes of oncoming traffic hit one a car full of them, --in the officer's zeal to ticket me.

Are children safer because I was brought to justice? Doubt it. Did my respect and appreciation for the authorities in Our Hometown decrease a little bit? Yes. Have I shared my opinion? Now, I have and I feel a little better--not so pissed.

We tolerate a lot of silliness in the name of safety. Our laws, ordinances and regulations are rife with examples of safety measures that are well-motivated, but ill-conceived, and ill-applied. Too often real solutions to real problems are dealt with on the cheap by enacting and enshrining a rule--as in the example of Sue and the bicycle helmet. We don't see the unintended consequences, we don't quantify the cost or appreciate the negative impact upon the quality of our life or liberty.