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. (more…)

Tags: cell phone driving, cell phone ticket, primary offense, section 1225-c, section 1225-d

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! (more…)

Tags: bribery, credit fraud, forgery, fraud, healthcare fraud, insurance fraud, mortgage fraud, welfare fraud, white collar crime

Article 26 of the New York State Vehicle and Traffic Law covers right of way violations. Two statutes pertain to emergency vehicles and one has recently been modified to apply to hazard vehicles. The obvious goal of the legislature in creating these statutes is to protect the safety of individuals who are in the process of responding to an emergency or who are in a vulnerable position on the side of a road while doing their jobs.

Vehicle and Traffic Law Section 1144 in essence requires a driver to yield the right of way and to immediately drive to the right hand edge or curb of the roadway (or to either edge of a one way roadway with three or more lanes) and then to stop and remain stopped until the emergency vehicle has passed unless otherwise directed by a police officer. This section requires the emergency vehicle to be immediately approaching with at least one emergency red light visible from a distance of 500 feet and with the sounding of an audible signal such as a siren. (more…)

Tags: article 26, move over law, section 1144, section 1144(a)

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 Buffalo News reported on October 2nd that investigators are still on the look out for a driver that hit and killed a woman on Broadway and didn’t stick around to fess up.

Leaving the scene of a motor vehicle accident with out reporting it may result in serious fines and penalties, including criminal prosecution. When an accident leaves someone dead, the operator of the responsible vehicle may face criminal charges that can increase if drugs or alcohol were involved. These accidents may also result in civil suits by the estate of the person who was killed. These suits can include claims for personal injuries as well as wrongful death.

Tags: auto accident, broadway fatal accident, car accident, hit and run, leaving the scene

As many Western New Yorker’s are aware, there has been a rash of vehicles crashing into buildings in 2011 so far, including the most recent today, September 30^th, into the front of Dessert Deli in a busy plaza at Maple and North Forest in Williamsville.

If these unfortunate incidents are truly accidents, the drivers will be charged accordingly. Those charges could include anything from inadequate brakes (a misdemeanor), failure to use due care (infraction or misdemeanor, depending on circumstances), speed not reasonable and prudent (3 points), to maybe even a charge of parking in a prohibited place! (max $150 fine). Depending on their driving records, they may be able to negotiate a reasonable deal with prosecutors. If alcohol or drugs are involved, the driver can be expected to be charged criminally. The drivers need to stay on site, though, because leaving the scene of an accident involving a personal injury is a separate crime. Civilly, the driver is also on the hook for damage to person or property, as well as the owner of the vehicle.

Our advice to drivers and building owners is the same:  review your insurance coverage and make sure you are properly protected. Paying attention while driving no matter where you are goes without saying. There are serious consequences as indicated by these unfortunate accidents resulting in property damage, serious injuries and in some cases even death to the driver and innocent pedestrians.

Tags: car insurance, Dessert Deli, driving misdemeanor, vehicle accident

Published in a recent article in the Buffalo News, a Hamburg woman received both jail and probation time for driving under the influence of a narcotic drug with young children in the vehicle.  Drinking and driving laws in New York will continue to become more strict each year. Leandra’s Law imposes two new major consequences on defendants convicted of DWI or driving while impaired by drugs with children in the car.

First, as this article discusses, Leandra’s Law re-classified the crime as a felony instead of a misdemeanor, which results in more severe sentences. Second, it requires the defendant to install an ignition interlock device in every car they own or operate, which imposes added expenses and burdens on the individual. In many cases, the defendant will not be given an opportunity to negotiate a reduction in the charge, so defense attorneys are focusing their efforts on attempting to get a commitment from the court for a more favorable sentence. Another problem that is not discussed in this news article is the likelihood that a civil lawsuit will be brought against the drinking driver and the owner of the vehicle to recover money damages. It’s important to have the experienced counsel to evaluate these issues and be prepared to address them as they arise.

Tags: driving under the influence, driving under the influence of drugs, dui, hamburg, Leandra's Law, swi