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Social Media in the Courtroom: Evidence, Hacking, and the Issue of Free Speech

July 9th, 2014

As social media becomes an increasingly widespread method of communicating with friends and family, conducting business, and sharing news, it also appears more frequently within the context of the law.  For quite some time now, material from social media has been used as evidence in investigations and lawsuits alike.  Evidence gathered from a defendant’s social media accounts can include photographs, status updates, tweets, geographical whereabouts, and even private messages.  The use of social media posts as evidence should come as little surprise; phone calls, emails and text messages have long been included in lawsuits as admissible evidence, and thus, citing incriminating material gathered from social media appears to be the next logical step.  Further, because so much of the information posted to social networks is publicly available, investigators often bypass the need for a subpoena or a search warrant.  Social media sites are often far less “private” than users believe, and the effect of incriminating posts can weigh heavily on the outcome of a lawsuit; for example, an individual seeking compensation for a broken leg will likely lose out when opposing counsel presents recent Facebook photos of the plaintiff dancing or running a marathon.

While the use of social media as evidence is obviously growing in scope and significance, many of the legal issues that arise around these relatively new networking sites are forcing courts to venture into uncharted waters.  For example, a court in Ireland recently fined a man €2,000 for defacing his ex-girlfriend’s Facebook page from within her account, which many view as a form of hacking.  The man had been able to access her account through her phone, and while logged into her account, posted an offensive status update.  In an unprecedented ruling, the Irish court charged him under the country’s Criminal Damage Act 1991, which is typically applied to disputes involving physical property damage.  Similarly, in the United States, the equivalent charge would also be something more closely related to vandalism, rather than cybercrime. The case is emblematic of the widespread uncertainty facing judges when it comes to handling very new types of crime using old laws.

This becomes especially difficult when the question of free speech arises.  In the United States, free speech activists are concerned about heavy government regulation of online sharing, and whether taking these steps will infringe upon people’s rights.  Similarly, enacting US federal laws could potentially open up the sites themselves to liability for what their users are posting, which would also force these companies to confront the free speech issue.

As Facebook posts and tweets are constantly being used as evidence, and user behavior is at the core of unprecedented legal decisions, it becomes obvious that the extensive use of social media among the masses will simultaneously raise free speech questions and expand the need for clearer legal guidelines.

Supreme Court Cracks Down on Straw Purchases of Guns

June 17th, 2014

A divided Supreme Court ruled on Monday that the government can strictly enforce a ban on purchasing a firearm for someone else, even if the other individual is lawfully allowed to own a gun.  Regardless of whether or not the other person is entitled to have a gun, this type of transaction is known as a “straw purchase” and conflicts with the lawfulness of a gun sale.  Because a gun purchase requires personal information, photo identification, and a background check, buying a gun with the intention of selling it to another person is a misrepresentation of the identity of the actual gun owner.

The case involved Bruce Abramski, a Virginia man and former police officer who was sentenced to five years probation for purchasing a $400 Glock handgun for his uncle in Pennsylvania, even though his uncle would have been lawfully able to purchase a gun himself.  However, because Abramski failed to disclose that he was not the actual purchaser of the weapon, the sale was not lawful.  Monday’s decision makes it clear that circumventing any part of the required purchase process is illegal; gun control advocates are hopeful that this ruling will help ensure that guns do not end up in the hands of dangerous people.

“The firearms law contemplates that the dealer will check not the fictitious purchaser’s but instead the true purchaser’s identity and eligibility for gun ownership,” Justice Elena Kagan said, in writing the majority opinion. “By concealing that Alvarez was the actual buyer, Abramski prevented the dealer from transacting with Alvarez face-to-face, recording his name, age, and residence, inspecting his photo ID, submitting his identifying information to the background check system, and determining whether he was prohibited from receiving a firearm.”

If you have questions about this change, or any other concerns regarding your rights, please call HoganWillig at (716) 636-7600.

Recent Increased Penalties for Distracted Driving Cases

Author: Kevin Mahoney

December 20th, 2013

Using a hand held mobile device while driving (phone, text, email), the penalty for a first offense still involves a maximum fine of a $150 fine plus surcharges.  The point violation increases from three to five points for offenses committed on or after June 1, 2013.

For violations that occur after July 26, 2013, a second offense within 18 months results in a maximum fine increase to $200 and a third or subsequent offense within 18 months the maximum fine increases to $400.

Drivers with probationary licenses (Class DJ or MJ) have these various penalties with the addition of a mandatory 60 day license/permit suspension.  A second such conviction within six months results in a revocation of at least six months for a probationary license or a revocation of at least 60 days for a Class DJ or MJ driver’s license or learner’s permit.

Exceptions to the law involve (1) a driver using a completely hands free device which allows the user to communicate without the use of either hand; (2) using a hand held device that is affixed to a vehicle surface; (3) using a GPS device that is attached to the vehicle for the purpose of placing a phone call to police, fire, EMS or other medical providers in the event of an emergency; or (5) when operating an authorized emergency vehicle in the performance of its official duties.

Additionally, as of October 28, 2013, the laws regarding commercial drivers are modified such that carriers must not allow or require the drivers to use these devices while driving.  Additionally, a mobile phone used by a person operating a commercial vehicle is not deemed to be “hands free” if the driver dials or answers the mobile phone by pressing more than a single button.  If the commercial vehicle is temporarily stationary because of traffic, a traffic control device or other momentary delays, use of these devices is still prohibited.  An operator of a commercial vehicle holding a device to or in the immediate proximity of his/her ear engages a presumption that the individual is using the device.

These increased sanctions are ultimately designed to prevent accidents that result from distracted driving.  Similar to drunk driving laws, this is a predictable reaction to increase public awareness over the problem, especially in light of tragic losses of life caused by distracted driving.

Be safe.

New York DMV Tightens Regulations for Repeat Offenders

Author: Kevin Mahoney

December 24th, 2012

As of the end of September, 2012, the New York State Department of Motor Vehicles has new regulations pertaining to drivers with multiple alcohol/drug-related driving convictions. This is a logical result from the increasing sanctions that pertain to Driving While Intoxicated or Driving While Impaired by Drugs offenses enacted by the Legislature.

These new regulations define a “persistently dangerous driver” as one who has had five or more alcohol/drug-related driving offenses or convictions in their lifetime or a motorist who in the last twenty-five years has had three or four alcohol/drug-related driving convictions plus one “serious driving offense”. Motorists with the “persistently dangerous driver” finding are to be permanently denied re-licensure, however, that permanent disqualification may not occur to the extent that the motorist demonstrates “compelling or extenuating circumstances”.

The regulations provide that if a current revocation for an alcohol-related offense involves a motorist with three or four similar prior convictions and without any serious driving offense in the last twenty-five years the denial of re-licensure shall be a period of five years in addition to whatever the statutory revocation period was for the current offense and with any subsequent re-licensure resulting in a restricted use license, as well as the requirement to install an ignition interlock device for a five year period.

To the extent that the current conviction is for a non-alcohol-related offense but results in some form of a revocation penalty, the Department of Motor Vehicles will deny re-licensure for two years in addition to whatever the statutory revocation period was for that particular offense and then re-license with a restricted use license for a period of two years, however, the ignition interlock device would not be required in that circumstance because the latest conviction would not have been alcohol-related.

Lastly, motorists that have two or more alcohol/drug-related driving convictions within the prior preceding twenty-five years are required to serve their entire suspension or revocation period even to the extent that they have completed the Drinker Driver Program.

The Department of Motor Vehicle already had an internal system for governing the timing of re-licensure in the event of revocations and these new regulations simply increase and strengthen those which have already existed.

The difference between a suspension and a revocation is that the suspension allows for the license to be returned following a relative short period of time whereas a revocation is akin to the license being destroyed such that the motorist is then required to reapply to the Department of Motor Vehicles to request that a new license be issued. Despite how important the ability to drive is in our society, the ability to maintain a driver’s license is a privilege as opposed to a right.

As a result, this is simply another example of why all should be very careful when operating their motor vehicles after consuming alcohol or drugs.

Sobering Thoughts For Holiday Hosts

Author: Hogan Willig

December 12th, 2012

From time to time, and particularly during the holiday season, I am asked by kith and kin alike about the responsibility a homeowner has to prevent people from drinking too much at a holiday party. Concerns range from the health of the person drinking copious quantities of eggnog to the legal liability and of the host who provided the eggnog. I cannot offer an opinion on the healthy amount of eggnog, but I can provide some insight into issues that may arise when a drunk guest leaves a party and injures someone.

Without turning this into a legal brief, in New York State the basic rule is that an adult host of a party (whom we’ll call Martha) is not legally liable or responsible if an adult guest (whom we’ll call W.C.) has too much alcohol and then drives away from the party causing some injury to a someone else (we’ll call her Sue). So if Martha spiked the eggnog and W.C. imbibes too much eggnog and then injures Sue, Martha is not responsible for W.C.’s actions and the law will not support a lawsuit against Martha.

The line can get blurred when an adult host provides alcohol to an under-age guest who then leaves the party and injures someone else. In that situation, if W.C.’s son (call him Chester) consumes too much eggnog, and Martha is aware of Chester’s drinking and lets it happen, then Martha has some legal responsibility. Sue can take Martha to court for her role in Chester getting drunk and injuring Sue. Also, W.C. can take Martha to court for the injuries sustained by Chester.

To be sure, it is generally unlawful for an adult to provide alcohol to a minor. The law recognizes a parental exception, but still does not permit intoxication by the minor even if the parent approves.
So eat, drink, and be merry including, but not limited to, encouraging responsible behavior toward alcohol [this is no way should be interpreted as an endorsement of alcohol consumption by minors or to excess by anyone, and prior results do not guarantee similar outcome]. That may seem at odds with the merrymaking, but when you’re making memories, you should at least keep in mind the ability to recall them.


Changes to New York State Vehicle and Traffic Laws Regarding Cell Phone/PDA Usage

Author: Kevin Mahoney

March 20th, 2012

Vehicle and Traffic Law Section 1225-c, which initially became effective in 2001, prohibits individuals from operating a motor vehicle while using a mobile telephone to engage in a call while the vehicle is in motion. The law provides specific definitions including that “using” refers to the individual holding the phone to or near the user’s ear. “Engaging in a call” refers to talking into or listening on the device, but does not include holding the phone to “activate, deactivate or initiate a function of” the phone. This law then further provides a presumption that a driver holding the phone to or in the “immediate proximity” of his/her ear while the vehicle is in motion is in fact engaging in a call. The motorist has the opportunity then to defend against this presumption.

White-Collar Crime

Author: Merika Wilson

March 9th, 2012

HoganWillig has the capability, legal resources and dedication to assist clients in various practice areas. This includes criminal defense for white-collar crimes ranging from forgery, bribery, insurance fraud, healthcare fraud, credit fraud, mortgage fraud, and welfare fraud. White-collar crimes are a unique legal area because many people may be unclear about what white-collar situations exactly entail or may be unaware of HoganWillig’s great defense accomplishments.

One success story involves a client indicted on 28 felony counts and 867 acts of Medicare and Medicaid fraud. Healthcare fraud occurs when a person knowingly and willfully provides false information or omits information in order to request payments from a health plan that they are not entitled to. The degree of the crime varies depending on the length of time the crime occurs and the amount of money obtained. HoganWillig’s teamwork approach brought the charges down to a conviction of only one misdemeanor. That’s in comparison to a sentence of approximately 56 years for the previous accusation!


We Practice Law for Your Peace of Mind