In the Rochester New York area it is common for a “routine” road patrol officer who makes a routine traffic stop and thereafter observes the classic signs of intoxication, bloodshot eyes, slurred speech and the rest, to order the motorist to remain where he or she is while they secure the services of a DWI specialist who will then undertake further investigation. Oftentimes, the delay involved will be upwards of fifteen minutes or more. For years, even to the extent of filing appeals, we have protested this procedure since, in effect, it results in a seizure for an offense for which there may not exist reasonable suspicion. You can imagine our relief when we saw the latest Fourth Amendment blockbuster from the United States Supreme Court, Rodriguez v. U.S., – U.S. – , 135 S.Ct. 1609 (U.S. S.Ct., 2015). Read full article
Well, it may not be the oldest question, but it may be the most important. Since the 1940’s and the onset of cheap blood alcohol testing, it is one that lawyers and defendants must initially face following a DWI arrest. Should you or shouldn’t you take the test?
The answer to this, like everything else in law, is it depends. Like predicting the weather, the answer to this question turns on a variety of factors. While much of what I say here may be useful nationally, because I believe in staying within my own bailiwick, many of the salient points will be tailored to New York. Read full article
In People v. Johnson, a Deputy Sheriff armed with a 911 call describing “a sick or intoxicated motorist” stopped the Appellant for a “wide right hand turn” well outside of his jurisdictional limit. At a Mapp hearing (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 ) to determine whether there existed sufficient probable cause for the stop of the vehicle, the Deputy admitted that he did not know the identity of the caller or the basis upon which the allegation was made. Since the Deputy was without jurisdiction to affect a stop for a traffic violation, the 911 call was essential. The Town Court denied the motion to suppress and the defendant was ultimately convicted. Following a loss in the County Court the motorist filed an application for Leave to Appeal to the Court of Appeals. While the application was pending, the United States Supreme Court decided Navarette v. California, – US – , 134 S.Ct. 1683, 188 L.Ed.2d 680  which, in a decision by Justice Thomas, found anonymous hearsay to be sufficient for the stop of a motor vehicle. Read full article
If you live in Rochester, New York, you’ve undoubtedly heard more DWI advertising in the last three months than you’ve probably heard in a decade. So what’s going on? Why all the hub-bub? This is touchy, but being as diplomatic as possible, let me start by posing a few questions.
First, do I hire a criminal lawyer based upon the advertising? Yes and no. As a cardinal rule, however, never hire a criminal lawyer, or any other lawyer for that matter, based solely upon what he or she may tell you on the radio, television or a website. Fact is, short of providing a guarantee, a lawyer can say pretty much say whatever he or she wants to say about their firm. There are absolutely no ethical barriers to a lawyer admitted yesterday afternoon from telling you that he or she is “premier,” “best” or “leading.” The only real limitation is use of the term “specialist.” Use of that term requires that the lawyer be recognized as a specialist by an organization approved by the American Bar Association. Read full article
Open the newspaper or turn on your local news and you’re probably going to hear a story about a drunk driving accident, alcohol related assault or alcohol poisoning. This story will most likely involve an individual between the ages of 18 and 24. If you were to continue to explore this issue you would find that among 18 to 24 year olds the rates of binge drinking and DWI’s have been increasing since 1998. Each year there are over 696,000 alcohol related assaults, 97,000 alcohol related sexual assaults and 1700 alcohol related deaths, just among the student population of the United States (Hingson 2000). In a survey, over 19% of college students met the criteria for alcohol abuse or dependence (American 2000). All these statistics beg the question of why our current alcohol consumption laws are failing. Unfortunately, this is where our politicians step in and speak of the “changing values of our youth”, “corruption by the media” and scapegoat every other social factor possible, while ignoring the fact that it is our drinking laws that are at the root of this epidemic.
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By Edward L. Fiandach, Esq.
Nobody has ever asked me, but I’m sure it has been asked, if they’re so good, then why do they advertise? The answer to that is simple. Because other’s do.
In 1977, the United States Supreme Court decided the matter of Bates v. the State Bar of Arizona. In a nutshell, Bates held that Arizona State Bar restrictions upon advertising by lawyers constituted a violation of the First Amendment to the United States Constitution.
In 1979, I was admitted to the practice of law. I immediately went into practice with my father, Samuel Fiandach and Fiandach & Fiandach was born. Sam and I always found attorney advertising distasteful and shunned it like the plague. Until fifteen years ago, Fiandach & Fiandach existed solely by means of word of mouth. We did no advertising at all. We had acquired a reputation for honesty, hard work, good results and frankly, that was all we needed.
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by Edward L. Fiandach, Esq.
It’s summer time. Hence in this week’s blog I thought I’d take a light hearted look at the usual theme. I wrote this in the early 90’s and giving kudos to obvious authors, I hope you enjoy it.
About a week ago I found myself tossing and turning unable to sleep. Although I am not a late night TV kind of person, I thought I’d give it a shot. Scrolling through a half dozen stations, something caught my eye.
Hello! What’s this? Municipal Court Live? Leave it to California. I wonder what kind of case . . . Whoa, a DWI? Now this ought to be interesting.
As I contemplated my good fortune, the screen filled with a slick silver haired announcer.
“Welcome once again courtroom fans to Municipal Court Live, I’m Harry Douglas and today Bob Euble and myself will be televising a DWI trial entitled the People of the State of California versus Thomas Who.” Read full article
by Edward L. Fiandach
In a word, yes, but that begs the obvious question, why? The answer to that is a bit more complicated and encompasses a bit of history.
One of the most difficult concepts that I try to get my students at the University of Rochester to grasp is the unique nature of the American Revolution. An attempt to equivocate the change wrought by this cataclysmic event in human history causes me to think of the terrible asteroid collision that wiped out the dinosaurs some sixty five million years ago. How so? Consider for a moment what historian Gordon Wood calls the Radicalization of the American Revolution. The most profound change was the onset of an entirely new way of viewing both ourselves and our relationship to government. Prior to the Declaration of Independence, the citizen viewed himself as subservient to the state, which in most cases meant the King. Further, the extent to which individuals could grow was limited by a caste based society in which wealth and heredity controlled. One would no more believe that he or she was equal to nobility than I would feel my dog is to me. The creation of a government ostensibly founded upon the maxim that “All men are created equal” changed all that. Despite the fact that actual implementation took almost two hundred years, the average man truly believed that he was to be served by government and that he was the equal of all those he encountered. Read full article
by Edward L. Fiandach
Lately, there has been much discussion in newsgroups, list servers and the media concerning source codes and their logical legal imperative, source code litigation. Simply put, source codes are the computer instructions followed by a computing device in processing information. A review of the source codes employed in the processing of a breath test would be worthwhile to determine whether the device is actually following the parameters set out by the manufacturer. Notwithstanding that such a review has proven difficult, there have been successes. Several Florida counties have ruled that the defense is entitled to the IntoxilyzerTM source codes and an older Washington state analysis of DataMasterTM source codes revealed numerous difficulties with the software. Undoubtedly there will be more such challenges, but what seems to be lost in the midst of this litigation is an examination of the premises underlying breath testing generally. Fresh from a series of lectures I have given in Las Vegas, Dallas and New York City on the technical aspects of breath testing, I thought that this was an appropriate occasion to review some of the more salient issues. Please note that with the exception of my conclusions dealing with equilibrium and the parameters of the various infrared machines currently in use, much of what follows is not original to me, but draws heavily upon previous research including that of Dr. Michael P. Hlastala,1 the writings of whom I strongly recommend. Read full article
One may not seriously question the assertion that stopping a moving vehicle represents
the most common example of Fourth Amendment implementation. While most believe that the
standard has been relatively static since the Court of Appeals decided People v. Ingle, 36 NY2d
413, 420, 369 NYS2d 67 (1975) and the United States Supreme Court decided Delaware v.
Prouse, 99 SCt. 1391, 59 LEd2d 660 (1979), such is not the case. In Whren v. United States, 517
US 806, 116 SCt 1769, 135 LEd2d 89 (1996), the United States Supreme Court, without
announcing that a substantive change had occurred, mysteriously raised “probable cause” as the
constitutionally mandated level of suspicion necessary to stop an automobile. In People v.
Robinson, 97 NY2d 341, 767 NE2d 638, 741 NYS2d 147 (2001), we again see this apparent
elevation of the standard as the Court of Appeals necessitated “probable cause” for the stop of an
automobile. Read full article