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Logbook Violations and the Unsuspecting CDL Driver

Most CDL Drivers Don't Know that Logbook Violations are Misdemeanors

By Lorenzo Napolitano, Esq.

As a motorist with a Commercial Driver's License ("CDL") you are most likely aware of logbook requirements imposed by both the Federal Department of Transportation and most state Transportation Departments. The logbook requirements can be stringent (sometimes a little too stringent in my opinion) and are primarily motivated by safety concerns and limiting driver fatigue. Under the law, every CDL driver must carry a logbook showing the day, hour, and place where he went and was released from duty, whether in New York State or outside the state. New York Transportation Law §212(a).

Of course, most CDL drivers that I speak with are aware of these requirements. What most people are unaware of, however, is that a failure to keep a logbook, or worse falsifying a logbook, is a misdemeanor, a crime punishable by up to 6 months in jail. New York Transportation Law §213. Even if a jail sentence is not given in a certain case, a misdemeanor on a CDL driver's record will likely lead to court fines, higher insurance rates, and reduced work hours/miles or loss of a job.

Failing to show up for the first court date can even result in the suspension of a CDL and the court has the power to "suspend the registration or privilege of operation of any vehicle" related to a logbook violation. New York Transportation Law §145.

Hiring an attorney to handle your logbook violation, or any other traffic matter, is a small investment that can save you time, money and possibly your license. In a most cases involving CDL drivers my clients do not have to go to court, as I go for them. Imagine the time from work you would be forced to miss if you had to appear in court in a far-away part of the state. In fact, many of my CDL clients are long-distance drivers and would have to miss several days of work and travel hundreds of miles to be present in court.

Additionally, in a typical case, I arrange for a reduction of the traffic ticket and strive to minimize the points for my clients and work to avoid a misdemeanor logbook charge. It is not only your license at stake, but also your livelihood. For more information, or for a free consultation regarding traffic tickets, please contact me at (585) 512-8185 or Lorenzo@NapolitanoLaw.com.

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Driving While Intoxicated in New York State: What You Need To Know

By Lorenzo Napolitano, Esq.

New York State's Driving While Intoxicated ("DWI") laws and penalties are some of the most stringent in the United States and have grown even more severe in recent years. As a result, it is absolutely critical to obtain the assistance of a qualified and experienced attorney to help you deal with the overwhelming legal and financial consequences of an arrest and DWI related charges that you might be facing.

As a matter of law and due to standardized prosecution policies, there is very little leeway for those facing DWI charges to negotiate plea deals to lesser charges with lighter penalties. However, the sooner that you consult an attorney, the more beneficial it will be for you in attempting to pursue all possible legal options open to you. If this is your first DWI or alcohol-related offense, there is a strong possibility for a reduction to a non-criminal plea, such as DWAI (Driving While Ability Impaired). Also, depending on the facts of your situation and the evidence against you, an experienced attorney may even be able to successfully litigate your case and avoid a conviction altogether. If this is not your first offense, a qualified lawyer will be even more crucial to defending your rights and negotiating the most favorable outcome. More specific legal advice will depend on the facts of your situation. And certain types of facts, if discovered early, could prove critical to obtaining the best possible outcome in your case. Thus, it highly recommended you consult a seasoned attorney who is experienced in handling DWI cases and who is prepared to aggressively defend your legal rights. These days, however, attorneys and firms that focus primarily on DWI defense can be too costly for many people. What you need is an attorney with reasonable rates, but who also has the professional experience to handle your case. The Law Office of Lorenzo Napolitano has successfully represented many clients on DWI related charges and negotiated numerous reductions throughout the courts of Monroe and surrounding counties. I am experienced in taking full advantage of every legal possibility my client's case might present and am also prepared to take matters to trial when it is in my client's best interest.

For more information or for a free consultation on your DWI matter, contact my office today at (585) 512-8185 or email me at Lorenzo@NapolitanoLaw.com.

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Aggravated Unlicensed Operation of a Motor Vehicle: A Misdemeanor in New York State

NY Vehicle & Traffic Law § 511

By Lorenzo Napolitano, Esq. & Andrew D. Fiske

One of the most commonly charged traffic related crimes in New York State is the Aggravated Unlicensed Operation of a Motor Vehicle (or "AUO"), under Section 511 of the New York Vehicle and Traffic Law. Many people within the general public and even some in the legal profession may not realize that an AUO is a misdemeanor - a crime - in New York State, and as such, carries serious consequences.

Typically, if someone is charged with an AUO, it is most often because of a previously unresolved traffic violation. Ignoring or simply forgetting about a traffic ticket will result in the court notifying the Department of Motor Vehicles of a "scofflaw". This will then result in a letter from the DMV warning the person that their license will be suspended. The suspension notice from the DMV allows for a 30 day period in which the problem can be corrected (e.g., previous ticket resolved and/or fine paid). However, if that period expires without the problem being resolved then a person's license will be automatically suspended without further communication from the DMV or the courts.

Alternatively, if someone moves and changes their address without notifying the DMV or providing a forwarding address at the post office, then they might never receive a copy of a suspension notice that was sent. Unfortunately, under the law, actual receipt does not matter and your license will nonetheless be suspended. However, one recent Fourth Department case held that during the trial of an AUO in the 3rd degree, the defendant's opportunity to merely cross-examine a DMV employee who was not directly involved in sending out suspension notices and who had no personal knowledge of the defendant's driving record was insufficient to protect the defendant's Sixth Amendment right of confrontation. People v. Darrisaw, 66 A.D.3d 1427 (4th Dept., 2009).

Therefore, if your license has been suspended because of a previously unresolved traffic ticket (whether you know it or not) and you are caught operating a motor vehicle in New York, you will most likely be charged with an AUO in the 3rd degree. If you are found guilty, an AUO 3rd carries a maximum sentence of 30 days in jail and/or a fine of up to $500 dollars. See Simmons v. State, 843 N.Y.S 2d 794 (2007), footnote 2. More serious charges of an AUO in the 2nd or 1st degree typically pertain to alcohol-related or multiple suspensions and consequences of a conviction are even more severe.

While a sentence of jail time is not a typical outcome in an AUO 3rd conviction for anyone with an otherwise clean criminal record, the statute does allow for it. The most likely consequences of an AUO conviction come in terms of fines, mandatory surcharges, and hiked insurance rates. This is where hiring an attorney is extremely beneficial and economically wise.

First, an attorney will help you resolve any and all of the outstanding traffic matters that were the underlying cause of the AUO charge. Your attorney will help you through every step of the process and take care of all court related matters so that you will not have to worry. Most importantly, a good traffic attorney is usually able to get AUO charges reduced to less serious offenses, such as an "Unlicensed Operator", under Section 509 or "Facilitating Aggravated Unlicensed Operation", under Section 511(a), which is only a traffic infraction and not a criminal misdemeanor.

Understand that any attorney may not guarantee a particular outcome for your case. What a good attorney will do, however, is fight diligently for you and negotiate for the best possible results. Often, this will be a reduction or dismissal of charges, lesser fines, fewer or no points on your license, and no increase on your insurance.

Lorenzo Napolitano, Esq. Lorenzo@NapolitanoLaw.com

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Coram Nobis: Vacating a Traffic Ticket in Local/Town Courts

By Lorenzo Napolitano, Esq.

Criminal Procedure Law §440.10 specifies the grounds and procedures for a motion to vacate a judgment of conviction. In some respects, it is a codification of a "coram nobis" motion available under the common law. However, courts have held that §440.10 did not completely preempt common law and a coram nobis motion is still available to a defendant for situations not covered in the statute. See People v. Bachert, 69 N.Y. 2d 593, 599 (1987).

Initial research into the area can be confusing as many commentators and courts use the term coram nobis synonymously with a motion under Criminal Procedure Law §440.10. For the purposes of this article, I will use the two motions interchangeably. In any event, it is clear that either a coram nobis motion or a motion pursuant to the §440.10 should not be used as alternative to an appeal to a higher court. See People v. Cooks, 67 N.Y.2d 100, 103 (1986). In terms of local and town courts, a coram nobis motion often comes into play for the unsuspecting motorist who pleads guilty to a traffic offense only to later learn that his or her driver's license will be suspended. A New York State driver's license will be suspended if a motorist is convicted of three speeding tickets in an eighteen month period or if a motorist has eleven or more points on his or her license. Such a motorist will undoubtedly suffer an undue burden and hardship without a driver's license (loss of employment, inability to transport children or elderly relatives to name a few). One remedy available under the law is to file a coram nobis motion to any Court where one of the traffic convictions occurred. In this instance, the motorist may not have the grounds for vacating a conviction under §440.10 and will have to rely on the common-law coram nobis motion to set aside a conviction "in the interests of justice," which can be granted in the discretion of the trial court. See People v. Bryce, 88 N.Y.2d 124 (1996); see also U.S. ex. rel. Ortiz v. Wallack, 237 F.Supp. 834 (1965). I have often successfully petitioned local and town courts to vacate a traffic conviction after the fact. Typically, a client will simply plead guilty to a traffic violation through the mail or in Court, without the advice of legal counsel, and be completely unaware that they can lose their driving privileges if they are convicted of three speeding violations in 18 months or if they receive 11 or more points. Additionally, many clients will "go it alone" and handle a traffic matter without an attorney and miscalculate the number of points they will incur by entering a guilty plea or miscalculate the existing number of points on their license. Next comes the ominous letter from the Department of Motor Vehicles warning of an impending license suspension. In comes a coram nobis motion to, hopefully, save the day. When making a coram nobis motion a practitioner would be wise to rely on both §440.10 and the common-law theory. Limiting your client's grounds to the enumerated grounds listed in the statute or trying to creatively fashion facts to fit into the statue could be fatal to your application. Courts are not obligated to explain the collateral consequences of a guilty plea to a defendant, though often courts do warn defendants of the possibility of losing driving privileges. Also many local and town court judges, especially in the larger metro areas, are in the habit of giving a standard explanation of a defendant's rights, such as the right to counsel and the right to request an adjournment to obtain counsel, and the potential consequences of a guilty plea just prior to calling a traffic docket. I find the interests of justice argument much stronger in these situations. One can explain that even when the Court gives such instructions that the client was not there at the beginning of the docket to hear it or was under the mistaken belief that they would not suffer from the consequences laid out by the Court. Furthermore, I have found that specific arguments supporting a finding of undue hardship applicable to a particular defendant, such as the potential loss of employment, inability to attend school or being the sole means of transportation for a dependent, are much stronger than a generalized argument of hardship.

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For more information or for a free consultation regarding coram nobis motions, please contact me at Lorenzo@NapolitanoLaw.com.