Last week, the Buffalo News reported that a 29-year old driver with 2 prior convictions for DWAI has been charged with DWI in connection with his arrest for driving the wrong way down the Thruway.  The question in everyone’s mind is: “if this is his third offense, why wasn’t he charged with a felony?”  The defendant is being charged with a misdemeanor, which is considered a crime and is punishable by up to one year in jail, but he won’t be charged with a felony.  Here’s why:

His two prior convictions were for Driving While Ability Impaired. DWAI is defined as a traffic infraction, not a crime. Even though it’s an infraction, a defendant convicted of DWAI can be sentenced to up to 15 days in jail. A second conviction for DWAI within 5 years is also considered traffic infraction, but carries additional fines and a possible jail term of 30 days.

If he had one prior DWI conviction within the past 10 years, he would be charged with a Class E Felony. If he had two prior DWIs within 10 years, he would be charged with a Class D Felony.  However, the rule is not the same where a defendant, like the one in this article, is charged with Misdemeanor-DWI after having two prior DWAI convictions. If he is convicted of DWI, the court will certainly take his prior convictions into consideration at sentencing.

In this case, the District Attorney could choose to also charge him with DWAI as a “lesser-included offense” in order to increase the likelihood of securing a conviction. The DA would have discretion whether to charge it as an infraction or as a misdemeanor because this is his third DWAI within 10 years. The defendant is entitled to have proper notice at the beginning of the case as to what he is being charged with. If the DA chooses to charge “Misdemeanor DWAI,” the DA will have the burden of proving the existence of the two prior convictions within the past 10 years. A conviction on this charge will carry increased fines, up to 180 days in a penitentiary or county jail, or both.

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Tags: class D felony, class E felony, DWAI, DWI, prior conviction, traffic infraction

The newest additions to New York’s DWI law are Leandra’s law and the ignition interlock device.  Leandra’s law makes it a felony to drive a vehicle while impaired by alcohol or drugs with a child who is fifteen years of age or younger in the vehicle.  The ignition interlock device is like a breathalyzer that is installed inside your vehicle and prevents the vehicle from being operated if the driver has consumed alcohol. (more…)

Tags: aggravated dwi, DWI, ignition interlock, Leandra’s law

This is the year 2010, and I encourage lawyers to get out of the habit of using static, outdated words and phrases in their writing. There are so many articles and books about “Plain English” which recite all these subjective guideposts for effective legal writing. I can break them all down into one general rule, which is: If you wouldn’t Say It, don’t Write It.

Hypothetically, if a lawyer is asked by her client, “where is my settlement check?,” I doubt the lawyer would respond by saying, “it is enclosed herewith.” Similarly, if the client asks her lawyer, “what’s going on with my case,” the lawyer probably wouldn’t begin the response with the phrase, “Please be advised…” So, why do we use these words and phrases in our legal writing?

In spite of all the suggestions for great legal writing, too many archaic words and phrases are still in use today. Instead of all the articles about how to revise legal writing, maybe the question should be, why are lawyers so wedded to legalese and why won’t they change. Is it for Formality; Exclusivity; or because of Precedent? Once we answer that question, hopefully we can begin to move away from the herewiths and heretofores and arguendos.

Tags: legal writing, legalese, plain english

It is becoming very common for contracts to contain a clause stating that “Any and all disputes arising under this contract will be settled by arbitration.” Arbitration is simply an agreement between parties that their disputes will be settled through arbitration rather than in court. Arbitration is favored by federal and state courts as a form of “Alternative Dispute Resolution” (ADR) and is one of the fastest growing means of settling disputes. The dispute is submitted to a private, non-judicial person who often has practical knowledge of the matter in dispute.

Arbitration has many similarities to a court case, but there are also some significant differences. (more…)

Tags: ADR, alternative dispute resolution, arbitration, dispute

You can find just about anything on the Internet, from a meatloaf recipe to a Yorkshire Terrier. The Internet can be a valuable tool or a source of entertainment, but it is a risky place to find a commercial lease form. “One Size Fits All” Lease forms may contain seemingly appropriate legalese like “subrogation” and “condition precedent,” but if you don’t know what those terms mean, you shouldn’t use them.

Generally, commercial leases are (more…)

Tags: acceleration clause, breach of lease, commercial lease, liability insurance, liquidated damages clause