Tuesday, September 19, 2006

Repeat DWI

An interesting case, via crim law and con law, out of the Town of Lancaster court. This individual was recently arrested when caught driving with an alleged BAC of .26, which is more than three times New York's currently legal limit of .08. It is his seventh arrest for a related offense, and he has four convictions over the past 30 years.

As always, I look for the hard questions. It's easy to say that this guy is a menace and the key should be thrown away after he's locked up, before he kills someone. While I attempt to project neutrality, I have no love for drunk drivers, having lost an aunt to an alcohol-related traffic accident when I was a child. At the same time, four convictions in 30 years, for misdemeanors? That's barely a tremor on the criminal Richter scale. I regularly dealt with clients, in my criminal law practice, who were charged with four misdemeanors a month.

Likewise, the comments of the judge don't seem to be those of an impartial arbiter of fact and law. "He's drunk all the time," implies a certain knowledge of the person that likely wasn't in an arrest report, or else it's a complete assumption. In either case, it's not a decision based on the facts before the justice, which is likely grounds for either an Article 78 of the decision or for a request that the judge recuse himself/motion to change venue.

More than likely, the defendant will take whatever plea offer looks best to him, beacuse that's how 90%+ of cases are resolved. Sometimes, though, I think the system needs some knights to tilt at figurative windmills, such as the judge's comments, to make sure the system continues to work in the correct manner. There's no question in my mind that someone who repeatedly drives drunk deserves jail time--but I firmly believe he also deserves due process of law.


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