A. Adam Mehrfar Blog

A Spectacular Result

Client was indicted in Federal Court in Detroit, Michigan for possessing 3 kilos of heroin. At the arraignment he was facing a 10 year mandatory minimum. At the sentencing hearing yesterday, I was (gratefully) able to persuade the Honorable Judge Edmunds of the Eastern District of Michigan that incarceration would not be a just sentence; she sentenced him to 2 years of probation instead. No jail. A very happy client, and I must say, a happy attorney as well…

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Another Great Result

Client was an executive at a publicly traded company, charged with stealing a $1,650.00 bag from a store in Manhattan; video surveillance showed him rather cavalierly stealing the bag right under the nose of the salesperson. Not good. Client’s entire career was on the line and the prosecutors were not forgiving- plea to the charge or go to trial. Nevertheless, after a year of maneuvering and negotiation, was able to get the prosecutors to offer the ACD which was entered today. The case will be dismissed and sealed in six months. Great win. Happy for the client who just made a bad decision. Fortunately it won’t ruin the rest of his life.

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Drunk Driving: A Commentary on the Draconian State of DWI/DUI Laws

WRITTEN BY CHARLES WELCOME, J.D. CANDIDATE 2014
EDITED BY EMILY HENDEL, J.D. CANDIDATE 2013
EDITED BY A. ADAM MEHRFAR, ESQ.

The information contained herein is for informational purposes only as a service to the public, and may or may not reflect the most current legal developments; accordingly, information on this Article is not promised or guaranteed to be correct or complete,. The Law Office of A. Adam Mehrfar expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this Article.

Drunk Driving: A Commentary on the Draconian State of the Law

I. Introduction

There is no doubt that drunk driving presents a serious problem on the roads of the United States. For the last three decades, various groups and governmental agencies have compiled statistics on drunk driving and fatalities involving alcohol-impaired drivers, and have tried to use this information to sculpt laws that effectively deter people from driving drunk. While such an undertaking may be aptly described as noble, the results that have been achieved are excessive and oppressive to a majority of American drivers.

It is a trait of human psychology that people are overly influenced by events that are out of the ordinary and have a disproportionate impact on their lives, while at the same time largely ignoring the more mundane events that are much more likely to occur on a day-to-day basis. For this reason, there are strong reactions to events such as plane crashes, shootings, and drunk driving fatalities. It seems that every time a drunk driver kills a child, a new law is pushed through state legislatures bearing her name. While a child being killed is horrible, whether they were killed by drunk drivers or otherwise, it is important that before enacting reactionary legislation, we examine the practical results of harsh DWI laws. When soberly analyzing the facts of bright-line DWI legislation and tactics, it becomes clear that this strategy that has become ubiquitous in the United States does not work.

II. Realities of DWI Legislation

The law’s treatment of DWI has gone from one extreme to the next. Originally the legal limit of BAC while driving was 0.15%; now, after some time when the limit was 0.1%, it is 0.08%. Although 0.15 is much too high, the present treatment of the issue by the law is much too severe. 0.08 is a level of BAC that is tough to gauge for a normal person; practically, the law is putting the limit at such a level as to force people to guess as to whether or not they are over the limit. If a person goes out to dinner with friends or family and ends up having a few drinks, he may feel perfectly fine and in control. However, alcohol affects everyone differently and if that person happens to encounter a police checkpoint, he may find that he was over the legal limit. When this happens, the law throws the book at the driver. The individual is forced to at least pay a hefty fine, if not spend time in jail. Additionally, he must install and maintain an ignition interlock device in all of the cars he owns or operates for a period of at least six months. It makes no difference that the individual was not driving recklessly, was obeying all traffic laws, and was putting no one in danger when he was stopped. Furthermore, the laws have changed with regard to people with less than .08% BAC. In New York, a person driving with a BAC between .04-.07% is guilty of Driving While Ability Impaired. DWAI is a lesser offense, but it is still quite expensive to deal with, and is accompanied by a fine, possible jail time, and the stigma that goes along with such an arrest on one’s record.

Proponents of Draconian DWI laws argue that it is necessary to punish everyone who drives drunk so as to deter people from doing it in the first place, no matter if it is actually endangering anyone’s safety or not (it is the opinion of such persons that, when driving after consuming alcohol, one is endangering others, no matter what; however, such an opinion is unfounded in reality, as discussed, infra). Deterrence is undoubtedly a necessary component of DWI law. However, we must ask ourselves: what, exactly, is it we are trying to deter? If we are trying to deter everyone from getting behind the wheel after consuming any alcohol, then such Draconian measures make a bit of sense. However, if that is the goal, other factors must be taken into account when deciding if it is indeed a worthy goal to have.

The United States is a driving country. The federal government made a concerted effort to connect the country by highways and roads of all sorts, leaving the railway system by the wayside. Even in large cities, such as Los Angeles, governments decided to scrap very efficient public transportation systems and replace them with complex systems of roadways. The plans worked to a “T,” and now cars and roads, especially outside of large cities, dominate transportation in the United States. Cars are essential to the “American way of life” that is found in the vast majority of this country. When people go somewhere, they drive. When they visit friends for dinner parties, they drive. When they go to restaurants, they drive. When they go to baseball games, they drive. The list goes on- any typically American social activity that one participates in outside of the home, Americans get there is by driving. According to the U.S. Department of Transportation Federal Highway Administration (FHA), in 2011, Americans drove 2,930,628,000,000 miles. This is an increase from 1,120,328,000,000 miles in 1970, the first year of record keeping. Americans drive a lot, and they drive more and more every year.

The United States is also a drinking country. People in the United States consume alcohol on a regular basis, be it at home, at bars, at restaurants, at ballgames or at other peoples’ homes. Alcohol consumption is, for better or worse, the cornerstone of America’s social fabric. If the goal were to deter every American from getting behind the wheel after consuming alcohol, the result of this would be to undermine a large portion of social interactions, as well as a large portion of the basis of the American economy. Without people buying alcohol in restaurants, at ballgames or for dinner parties, significantly less people would endeavor to participate in those activities. Restaurants would go out of business, sports teams would lose money and end up folding, and people would stop forming the types of friendships that have become commonplace in the United States today. While the goal of ridding American roads of drivers with alcohol in their bloodstreams would be greatly furthered, the ancillary negative effects would be devastating.

Thus, a better approach would be to deter the worst types of drunk drivers: the ones who drive recklessly, endanger the lives of themselves and others, and cause accidents, fatal and otherwise. People who drive at high speeds and ignore traffic laws while driving after drinking are the people whose behavior needs to be curbed. Although it is predominantly the reckless drivers that cause accidents and fatalities, everyone who happens to have had a few drinks before driving runs the risk of being punished for the actions of a small, yet dangerous, minority.

Drivers with a high BAC disproportionately cause fatalities. In New York in 2010, of the 1200 driving fatalities, 768 (64%) involved drivers with a BAC of .00. Of the 432 fatalities involving drivers who had consumed alcohol, 234 (19%) involved drivers with a BAC of .15 or above. Only 64 (5%) involved drivers with BAC of .01-.07, and 130 (11%) involved drivers with BAC of .08-.15. So, of fatalities involving drivers with BAC of .01 or above, 54% involved drivers with BAC of .15 or above. The results are even more skewed on a national level: 58% of drivers involved in fatal crashes where alcohol was involved had a BAC of .15 or higher. These numbers convey that drivers driving with a minimum BAC of nearly double the legal limit are involved in the majority of alcohol-related driving fatalities. In fact, the average BAC of a drunk driver in a fatal crash is 0.19%, according to the American Beverage Institute.

The Center for Disease Control (CDC) has conducted research on drunk driving in the United States. They admit that their results are most likely underestimated, as several limitations of their research resulted in numbers that do not include all categories of people, such as people who are under 18 years old, people without landlines, and the people who did not feel comfortable reporting their drunk-driving history because of the social stigma. Nonetheless, the CDC found that there were an estimated 112 million episodes of drunk driving in 2010, the latest year that the results are available for. According to the U.S. Department of Transportation National Highway Traffic Safety Administration (NHTSA), there were 10,228 fatalities caused by drunk drivers for that year. This comes out to a fatality 0.009% of the time someone in the United States drives drunk, or, in other words, the likelihood of a fatality occurring is nine out of every 100,000 drunk driving incidents. Reversed, there is a 99.991% chance a fatality will not occur for any given drunk driving incident. And this, according to the CDC, is an overestimate of the frequency.

The CDC reports that there has been a 30% decrease in the self-reported incidences of drunk driving since 2006. However, it does not attribute this downturn to the harsher laws enacted by states in that time. Instead, it looks to the economic downturn as the reason for less discretionary driving, as well as a move by drinkers to drinking locations where driving is not necessary, such as their homes. By this logic, if and when the economy enters into a recovery, people who have had to cut back on discretionary spending such as for gasoline to go to bars and for the more expensive option of buying alcohol at restaurants and bars, will begin engaging in those behaviors again, regardless of any Draconian measures put in place to convince them otherwise.

This view is reinforced by the fact that, according to Mothers Against Drunk Driving (MADD), the average drunk driver drives drunk 80 times before he is arrested. This statistic leads to the conclusions that 1) people do not think they will get caught when driving drunk; 2) they are usually right; and 3) it is not so imperative that we eliminate all drunk driving as MADD would like us to think it is. If the statistic is accurate, and the average drunk driver drives 80 times without incident before being caught, that means such drunk drivers only have had a problem driving 1.2% of the time, and this is not even factoring in those who were arrested at checkpoints rather than for driving erratically or having an accident.

Proponents of the harsh measures may point to the NHTSA report that drunk driving fatalities declined by 20% in the years 2006-2009 as proof of the effectiveness of such a strategy. However, the NHTSA notes in that same report that the proportion of drunk-driving fatalities to all driving fatalities remained constant, at about one in three, during that same period. This is because non-alcohol-impaired driving fatalities declined by the same rate. These facts suggest that the nation’s roads have become safer, not as a result of heavy-handed DWI legislation, but rather for some other reason.

Indeed, when one delves deeper into the drunk-driving fatality statistics, the answer becomes apparent. The drop in fatalities is unquestionably due to driving legislation, just not the kind that MADD and other crusaders would have hoped: namely, seatbelt legislation. In 2009, two-thirds of the people killed in alcohol-impaired driving accidents were the drunk drivers themselves. Of these two-thirds, 72% were not wearing seatbelts. As for the other people who died in these accidents, 81% were not wearing seatbelts. In total, 8,126 out 10,839 people who died in alcohol-impaired driving accidents in 2009 were not wearing seatbelts.

The conclusion is clear: drunk-driving laws that indiscriminately punish anyone who violates the BAC limit do not work. They do not deter people from drunk driving, they do not reduce the risk of being killed in a car accident due to a drunk driver, and they ruin people’s lives that otherwise were doing nothing wrong. This course of action is politically popular because it can give the appearance of protecting the public and stopping drunk driving, but as the CDC and NHTSA reports prove, there is no causal link; the results either do not suggest that those goals are being accomplished, or they occur because of other factors.
III. Ignition Interlock Devices

In recent years, extremely harsh penalties have been adopted in almost every state for any violation of the law concerning drinking and driving. By 2010, all 50 states, Washington, D.C. and Puerto Rico had all passed laws that made it illegal per se to drive with a Blood Alcohol Content (BAC) of 0.08 or higher. Additionally, New York, along with 37 other states, instituted a penalty requiring certain drivers to install and maintain an Ignition Interlock Device. An Ignition Interlock Device is a device that is installed in a person’s car that requires a person to take a Breathalyzer test before it will allow the car the start. This must be installed in every automobile they own or operate for a specified, court-ordered amount of time. In New York, any person convicted of DWI must install and maintain an Ignition Interlock Device for a period of at least six months.

IIDs are extraordinarily burdensome on drivers. First, drivers must bear the cost of installing and maintaining the Ignition Interlock Device. While this may seem fair, the device must be taken in for maintenance within the first 30 days after installation, and then, if there are no problems with it, within every 60 days after that. Also, it must be taken to a state-approved service provider, which may be as far as 50 miles from the driver’s residence or parking place. It is an unbearable burden for someone who is busy with work and family to drive up to 100 miles for a court-ordered service of such a device. After considering all of this, it does not seem like a fair price to pay just for encountering a police checkpoint.

Additionally, IIDs do not merely require drivers to blow into them to start the vehicle, the driver must then submit to additional “rolling” tests within a randomly variable interval ranging from 5-15 minutes. After this initial rolling test, the driver will then have subsequent rolling tests at random intervals not to exceed 30 minutes, for the duration of the travel. Such requirements are dangerous. Imagine having to lean over while driving, visually locate a small tube, place the tube in your mouth and blow into it for an extended period just to make sure that you haven’t begun drinking after you have started the car. This is an especially egregious risk for drivers on highways.

Certainly, there are drawbacks and problems with IIDs and the system in place, but that is not to say they should not exist. There is a need for IIDs, just as there is a need for other harsh penalties for certain DWI offenders. However, there is no need to so severely punish every person who violates the DWI law.

IV. DWI Checkpoints

In recent years there has been a concerted effort to increase the amount of DWI checkpoints in lieu of what the police call saturation. Saturation is the tactic of deploying a lot of police car patrols in high drunk-driving areas in an effort to catch people in the act of drunk driving. The FBI has reported that “typically, sobriety checkpoints do not yield a large volume of DUI arrests.” Additionally, the NHTSA has commented that “[i]t was thought that the increased media and enforcement program would be associated with an increase in awareness of the enforcement program, a reduction in driving after drinking behavior, as well as an increase in the perception of being stopped by the police for an alcohol offense and arrested if over the limit. Such changes in awareness, perceptions, and self-reported behavior did not occur.” While the NHTSA has admitted that the secondary effects they had hoped that DWI checkpoints would inspire have not come to fruition, the primary goal of making DUI arrests has fared even worse. The Arizona Daily Star reported that between 2005 and 2007, of the more than 46,000 drivers that were stopped, less than 1% were arrested, and of those less than half were convicted.

The cost of a DUI checkpoint is estimated to be anywhere from $8,800 (low-end law enforcement estimate) to $12,000 (American Civil Liberties Union estimate). Since multiple organizations have admitted that this tactic is ineffective, this is an exorbitant cost. However, state and local governments don’t mind spending the money because the taxpayers foot the bill. That is to say, the vast majority of DUI checkpoints are funded by federal grant money. For example, in California, 99.5% of the expense of DUI checkpoints is federally funded.

Because the money does not come out of the regular police budget, many police departments assign more police officers to work the checkpoints than is necessary. Although MADD estimates that checkpoints require no more than four to five officers to run effectively, that is far from the practical reality. The Investigative Reporting Program at UC Berkeley reported in 2010 that nearly 50 local police and sheriff’s departments averaged at least 20 officers per checkpoint. These operations averaged three DUI arrests per night. The California Office of Traffic Safety (OTS) indicates that the average deployment of officers at checkpoints statewide is 18 officers. The LAPD averages 35 officers per checkpoint and the Federal Traffic Safety Agency requires a minimum of six officers. All officers working checkpoints get paid overtime, which is one and one half times their regular wage. According to the Berkeley report, officer overtime accounts for over 90% of the cost of checkpoints. Essentially, the U.S. taxpayers are paying overtime wages for police to conduct minimally effective DUI prevention.

Not only is this subsidization of an ineffective program troubling, but also local law enforcement seems to be using DUI checkpoints as a way to raise money for struggling cities. According to Ryan Gabrielson, of the University of California at Berkeley Investigative Reporting Program, checkpoint impounds generated an estimated $40 million in towing fees and police fines in California in 2009. Local governments often make lucrative deals with the private towing companies to split such profits. These programs are funded almost exclusively with federal money but they have become cash cows for the Local and State governments. Ironically, the vast majority of citations and vehicle seizures at DUI checkpoints are for driving without a license, not drunk driving.

It is clear that the purpose of DUI checkpoints is not to curtail drunk driving. The federal government gives the California OTS $100 million dollars a year, of which $30 million is spent on checkpoints. The money is conditioned on the checkpoints being put in place. That means that the federal government pays $70 million per year in California for $30 million worth of checkpoints. This is an exorbitant amount by any stretch of the imagination. While we cannot really fault the state and local governments for accepting the conditions of the federal funding, it is exceedingly troubling that police departments are now basing their policies on fundraising rather than protecting the public by upholding the law. Since Michigan Dept. of State Police v. Sitz., 496 U.S. 444 (1990), the federal government has been expanding checkpoint policies in any state that refuses to ban them.

In Sitz, the court ruled that the public policy considerations of preventing drunk driving outweighed the importance of upholding the Fourth Amendment of the United States Constitution. While this reasoning is suspect at best, and it is based on the fiction that DUI checkpoints serve the public policy of preventing drunk driving, it has been responsible for this facet of federal interference in the lives of law-abiding citizens. Sergeant Chris Jacobson, in charge of DUI checkpoints for the police department of Lodi, California, said, “[w]e are aware that saturation patrols are much more effective for arresting DUIs.” However, the “California Office of Traffic Safety wants that contact with drivers….” The California OTS is, of course, taking its cues from the federal government.

Checkpoints are “a public relations campaign,” according to Sergeant Scott Elliott, Colorado State Patrol, in essence to condition the public to become accustomed to police stops. The Transportation Security Administration has announced that it will conduct “security assessments” on highways. They tested this program last year by setting up checkpoints on interstates in Tennessee. The spin campaign has been in full effect for 20 years. During that time, the public has been told repeatedly how effective checkpoints are, and constantly reminded of their popularity. In almost every pro-checkpoint article or interview, there is a reference to how much support checkpoints enjoy from the public at large. In sum, the federal government is using the money it takes from taxpayers every year to fund operations that have little value in accomplishing the goal of making roads safer from drunk drivers. The real purpose is to strip us of our Constitutional rights, all while spreading falsities about the effects of the program and telling the people how much they like it. As Supreme Court Justice Clarence Thomas said, “[i]ndeed, I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”

V. Conclusion

Drunk driving is a serious problem on the roads of the United States. Thousands of preventable deaths occur every year due to people driving while drunk. However, the federal government, special interest groups and the media have used this problem to pursue policies that are detrimental to the public at large. Special interest groups like MADD have successfully created an atmosphere of fear around the issue, which has brought about extraordinarily harsh penalties that can cost thousands of dollars and significant amounts of time. These penalties are combined with checkpoints that serve two detrimental purposes: first, they tend to skew arrests toward drivers that are not driving recklessly or endangering anyone, and second, they further a curtailment of constitutional rights.
Instead of pouring resources into drunk driving checkpoints, which skew arrests toward people who really shouldn’t be arrested, police should devote more time and money to patrolling the roads and finding the people who drive recklessly and endanger the public. Punishing people who drive recklessly with harsh penalties is worthwhile. According to the Century Council, 81% of people who were arrested for drunk driving said that harsher penalties would stop them from driving drunk again. Thus, harsh penalties are effective in deterring repeat offenders.

Not only are harsh penalties effective in deterring repeat offenders from driving drunk again, they are also effective in keeping people who deserve the penalties off the street. If someone is arrested for drunkenly driving, as opposed to merely being legally drunk while driving, that person should be kept from repeating this behavior. In such cases, Ignition Interlock Devices, jail time, license suspension/revocation, and large fines are completely warranted. The people who egregiously endanger themselves, others and property are not in the same category as the average person driving home after a few drinks with friends and family. The former category needs to be punished, and their criminal record should reflect the fact that they were a danger to society, while the latter should not.

Devoting police resources to patrolling the streets rather than checking cars at checkpoints speaks precisely to this issue. People who are not driving recklessly should not be pulled over or arrested, while people who are driving recklessly and putting lives in jeopardy and breaking the law should. Harsh punishments should not be employed until after these people have been singled out and arrested.

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Felony Sexual Assault Charges Dismissed!

Persuaded the prosecutor that the allegations did not make sense and that the case should be dismissed outright; no plea bargain would be accepted. Prosecutor eventually agrees and moves to dismiss charges in full. Client is a very good person and I am extremely happy for him. This is what he wrote to me after the dismissal: “Adam… I can not express my gratitude, thanks, and appreciation for what you did for me and my family. The choice we made to retain you in my time of need was absolutely the right one and I truly believe NO ONE else could have represented me better. I can not say it enough, THANK YOU and GOD BLESS.” Great client. Great Result.

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Case Dismissed!!!

ACD on Felony Charges where evidence was very strong for prosecution! A Grand Slam…

Just got an Assault case dismissed on the motion of the prosecution. Convinced them my client was innocent and they did the right thing and dismissed. Cheers to ADA Lee Langston of the New York County DA’s office for his courage in dismissing the case outright.

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AVVO AWARDS FOR A. ADAM MEHRFAR

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WILL THEY EVER FIND OUT? WHAT YOU SHOULD KNOW ABOUT CRIMINAL HISTORY BACKGROUND CHECKS

One of the most frequently asked questions people have after they get arrested is will anyone else find out about it. Most often people are concerned that their employers or prospective employers will find out. The answer is complicated and depends on the situation. Read below to find out more.

I. Federal Records

Criminal histories are available, in varying degrees, from organizations at the federal, state and local levels. At the federal level, the FBI compiles criminal history records through the National Crime Information Center. The records that are stored there include outstanding arrest warrants, arrest records, stolen property, missing persons, felonies and misdemeanors. Additionally, the FBI runs the National Instant Criminal Background Check System (used to screen would-be purchasers of guns), the Integrated Automated Fingerprint Identification System (allows for background searches by fingerprint, when available), and the Combined DNA Index System (matches DNA to crime scenes and DNA on file).

The FBI gets the information for these databases from federal records (e.g. crime scenes and federal arrests), state and local data sharing, and the National Law Enforcement Telecommunications System (NLETS). NLETS compiles data from every local, state and federal law enforcement, justice and public safety agency for the purposes of sharing and exchanging that information. The data compiled includes motor vehicle and driver data, Canadian and Interpol databases, state criminal history records, and driver’s license and DOC images.

It is possible to obtain copies of criminal records maintained by Federal Agencies under the Freedom of Information Act (FOIA) and the Privacy Act. In general, however, private citizens or companies may only obtain such records concerning themselves, deceased individuals, or living individuals who have given their permission for their records to be obtained. Thus, it is possible for companies seeking to hire new employees to retain the services of any number of private companies that may procure criminal records from the FBI, as long as the prospective employee signs a waiver giving the permission for his records to be accessed first. Conversely, it would not be possible for a private law firm, for example, to use FOIA to retrieve a criminal history from the FBI without first getting permission from the person it wishes to research.

The FBI also makes criminal history background checks available through the Automated Fingerprint Identification System. This service is exclusively available for individuals wishing to obtain their own criminal histories; no third party will be given any report from the FBI, regardless of any permission given by the individual. You can contact the FBI directly or obtain it through an FBI-approved Channeler, which is a private business that has contracted with the FBI. These businesses receive fingerprint submission and relevant data, collect the associated fee(s), electronically forward the fingerprint submission with the necessary information to the FBI Criminal Justice Information Service (CJIS) Division for a national criminal history record check, and receive the electronic record check result for dissemination to the individual. There are eight approved Channelers:

1. 3M Cogent Systems
2. Accurate Biometrics
3. Eid Passport, Inc.
4. Fieldprint, Inc.
5. Inquiries, Inc.
6. National Background Check, Inc.
7. National Credit Reporting
8. TRP Associates, LLP dba ID Solutions

For federal records, it is only possible to obtain criminal history background checks if you have the permission of the person you want to check out, and even then it must be through a FOIA request, which can take some time. Because of this, it is necessary to explore the state and local channels in order to obtain information about people without their permission.

II. State Level

Although it is possible for background check companies to get information through FOIA, it is standard practice in the industry to use state or even county resources to complete criminal history background checks. Background check companies use statewide court, corrections and law enforcement records to compile a criminal history of the targeted individual.

Though the companies admit to using statewide databases, this method can lead to incomplete results. State repositories gather information from local courts and agencies, which they rely on to provide this information to them, so their records may not be comprehensive. Although possibly incomplete, state repositories contain arrest records, felony convictions, misdemeanor convictions, cases without disposition, expunged cases, and possibly juvenile records.
The National Association of Professional Background Screeners (NAPBS) advises its members to use statewide database searches to narrow down their search and obtain more information about the individual they are searching for. Once the statewide databases have confirmed the identity of the person whose background must be checked, the NAPBS recommends companies then use the information obtained at the state level and go to relevant county courthouses to do their primary research on the individual.

To gather this information from state agencies, the employer/background check company must obtain written authorization from the individual. The background check companies, or Consumer Reporting Agencies (CRAs), can report interactions with law enforcement going back seven years from the time of the request. Although the CRAs can report this information to employers, states place restrictions on what information employers may consider when making hiring decisions. Most states restrict employers’ consideration of criminal records that are sealed, annulled, expunged and/or pardoned by the governor during the hiring process. Although most states have these rules, employers are still able to legally view whatever information they are given by a CRA. Thus, it is difficult, if not impossible, to completely prohibit employers from considering criminal histories that they are not supposed to.

In New York, CRAs can obtain criminal history reports from the New York State Unified Court System for a fee. These reports include conviction and pending records as they relate to felony and misdemeanor cases originating in Town and Village Courts, City, and County/Supreme Courts. Data relating to non-criminal offenses (e.g. violations and infractions) do not appear on these reports. Cases processed in Town/Village Courts from 1991-2002 also do not appear on the reports. Finally, sealed records are not reported. These reports are not certified, but it is possible to contact the court of origination, where an offense was tried, and obtain a Certificate of Disposition for a nominal fee. To get these criminal history reports, it is necessary to have the full name and date of birth of the individual; the system will then provide results for all 62 counties within New York State.

Although the New York State Unified Court System will give anyone criminal history records as described above, the New York State Division of Criminal Justice Services will not. The records from the Division of Criminal Justice Services are more comprehensive than those available through the New York State Unified Court System, but it is against the law for them to give out personal criminal history records to anyone other than the individual whose record is sought or that individual’s attorney. This rule is pursuant to 9 New York Code of Rules and Regulations Part 6050.1.

III. Local/County Level

As recommended by the NAPBS, county courthouses are the places with the most first-hand information and most complete records pertaining to the criminal history of an individual. County courthouses generally contain information about felonies, misdemeanors, infractions and traffic violations in addition to arrest records, cases without disposition and expunged cases. Anyone is able to walk into a county courthouse and conduct a search of such records, as they are public property. The line is drawn, however, at expunged cases, as a member of the general public cannot go into a county courthouse and obtain information about such cases. It is possible to search New York City county records online. Search options on the court website include an index number search, plaintiff search and defendant search.

The downside to searching at the county level is that it is much more time consuming than searching state or federal databases. There are 62 counties in New York State, and although it is unlikely that an individual will have lived in all of them, it is very possible that an individual would have a criminal record in several counties in New York, as well counties in other states. Whereas researching individual counties’ records could take quite a long time, by searching in state and federal databases that time would be significantly reduced.

While it would seem as though expunged and sealed records would not be available for public viewing, evidently there are cracks in the wall. Because of agencies like NLETS and the unprecedented speed and frequency with which information is shared and passed from agency to agency, coupled with the fact that there is considerable time from the beginning of the process to when records are expunged or sealed, these records can be provided to state and federal agencies. Once they are in the federal and state databases, they are accessible to CRAs. Although CRAs generally collect data on individuals only when they are hired to do so by potential employers, the data will be stored in the state and federal databases for CRAs to access whenever they are hired to do so.

By: Charles Welcome for the Law Office of A. Adam Mehrfar

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ORDERS OF PROTECTION IN NEW YORK DOMESTIC VIOLENCE CRIMINAL CASES: BALANCING THE RIGHTS OF THE ACCUSED VS. PROTECTING THE COMPLAINANTS


Ever since Galina Komar was killed in February 1996 by her ex-boyfriend after he was released on bail
, New York Criminal Courts have struggled with how to balance the rights of the accused while protecting the complainant/victims. In the Komar case, Judge Lorin Duckman of Brooklyn Criminal Court was widely criticized after Komar’s death for lowering her ex-boyfriend’s bail, allowing him to post bail and get out of jail. The irony is that Judge Duckman did the right thing at the time. The prosecution was continuously not ready for trial and such a “change in circumstances” was a proper and lawful basis for the reduction of bail. Judge Duckman was subsequently removed from the bench.

After Komar’s unfortunate death, there was understandable public outrage that the New York criminal court system did not do more to protect victims of domestic violence. In response, the NYPD instituted a new program, which among other things, installed a dedicated “domestic violence” police officer in each precinct in New York. And New York criminal court judges began issuing “Full” Orders of Protection in every criminal case where the allegations in the criminal complaint include any assault, menacing, or harassment charges.

But some could argue that in the quest to do more to protect the complainants in domestic violence cases, New York criminal courts have gone too far. “Full” Orders of Protection are issued summarily, often without any information beyond the bare allegations contained in the criminal complaint. These “Full” Orders of Protection have significant power. They prevent the accused from going anywhere near where the complainant might be, including the complainant’s home or workplace.

In domestic violence cases where a husband is arrested and the wife is the complainant, the issuance of the Full Order of Protection will prevent him from going home and force him to choose between staying in a hotel while the criminal case is resolved (which can sometimes take years) or going home and facing the prospect of being arrested again for violating the Order Of Protection. This situation arises regardless of whether there is a marital relationship. For instance, where a girlfriend moves into the boyfriend’s apartment, the issuance of an Order of Protection will prevent him from going to his own home and allow the girlfriend, regardless of whether she is on the lease, to continue living in the home.

This is the difficult dilemma that New York criminal courts face in domestic violence cases. On one hand, the court’s primary goal is to ensure the safety of those who are abused or threatened with domestic violence. However, on the other hand, a person’s home is a sacred place, and the constitution demands that a person be afforded due process if the State is going to prevent him from returning home.

New York’s Criminal Courts’ power to issue an Order of Protection arises under New York CPL § 530.12 as a condition of bail or release without bail. In New York, there are two forms of an Order of Protection: A “Full” Order of Protection, which is a full “stay away” order, and a “Limited” Order of Protection, which is not a “stay away” order but orders the accused not to commit any new crimes against the complainant, or risk being charged with violating the Order of Protection in addition to any new charges that may be filed. A Full Order of Protection, in addition to being a “stay away” order, also forbids the accused from making any contact with the victim, including, but not limited to, any phone calls, text messages, emails, or even contacting the person through a mutual acquaintance.

As powerful and sensible as a Full Order of Protection may seem, in circumstances where the victim and the accused live together or share property, courts face a very serious constitutional dilemma. By ordering a person to stay away from the victim, the court may also be ordering the person to stay away from his or her home, thereby restricting his or her liberty and property interests, which without satisfying the requirements of due process, would be unconstitutional.

Such a scenario came before the New York City Criminal Court in People v. Forman, 145 Misc.2d 115 (NY 1989). The defendant, Milton Forman, and the complainant were husband and wife, but at the time of his arrest, were separated and living in separate apartments within the same building. Forman was arrested and charged with Assault and Harassment. At his arraignment, the court released Forman on his own recognizance but also issued an Order of Protection, which direct him, inter alia, “to stay away from the home, school, business or place of employment of [the complainant].” Id., at 117.

Less than a month later, Forman sought to have the Order of Protection changed so that he could access one of the apartments in the building. When the court denied his application, Forman moved to challenge both the sufficiency of the evidence against him, and the constitutionality of the Order of Protection, as a violation of Due Process.

First, the court found that the evidence against Forman was sufficient to justify the issuance of the Order of Protection. Then, the court engaged in a detailed discussion of the procedures and criteria for the issuance of such Orders. Essentially, the court approached the Order of Protection problem by a balancing of the State’s interests in issuing the order, against the defendant’s property interests. The court called domestic violence a “social scourge of the first order” and found that any efforts in the prevention of such crimes would be “severely undermined” if a defendant could immediately reach back out to the victim and further harm or intimidate them. Id., at 126-127. On the other hand, the court called the defendant’s property interest “a substantial one.” The court even goes as far as to say that there is an obvious risk that some temporary orders of protection will be erroneously issued, but the court would rather err on the side of over protection, even though an innocent person may be deprived of their property. Id., at 128

This balancing approach, though favorable to the victim, does not altogether deprive the accused of any means to be heard. At arraignment, before a judge can issue an Order of Protection, he or she must determine whether there is sufficient probable cause to justify the issuance. This determination almost always leads to the issuance of the Order of Protection because a judge will often consider the arrest to be sufficient probable cause. Further, because any adversary procedures such as testimony or cross-examination “would add significant delay to the already existing backlog” in the judiciary system, the court will often not allow such proceedings until a later, separate hearing. Id., at 129.

The process of a Forman Hearing is similar to a trial. Both parties have an opportunity to present and cross-examine witnesses in order to assess their credibility and to assess the validity of each account of the events leading to the arrest. While the court does not specify an exact time frame for when a Forman Hearing should occur, it does say that “[t]he requirements of due process do entitle [the] defendant to a prompt evidentiary hearing after the temporary order of protection excluding [the] defendant from the home has been issued.” Id. Normally, because of the constitutional issues at stake, a judge will set the date for a Forman Hearing relatively quickly.

At the hearing, in addition to assessing the credibility of the involved parties, the court considers various factors included in CPL § 530.12 (1) (a) to determine whether the Order of Protection was properly issued. These factors include prior incidents of abuse, prior Orders of Protection and cooperation with them, past or present injury, drug or alcohol abuse, access to weapons, and “‘whether the [Order of Protection] is likely to achieve its purpose in the absence of . . . a condition’ excluding the defendant from the home” Id., at 132.

After the hearing, if a judge determines that there is sufficient “danger of injury or intimidation” to the complainant, the Order will be upheld, reissued, or extended. A violation of an Order of Protection can result in criminal contempt charges, revocation of an order for release on recognizance, revocation of a conditional discharge, or imprisonment.

There are ways to persuade the court not to issue a Full Order of Protection, even over the objection of the People, but the basis for objecting to the issuance of an Order of Protection should be made as soon as possible, preferably at the criminal court arraignment. If the Judge issues the Full Order of Protection at the criminal court arraignment, the able lawyer should demand a Forman Hearing at the arraignment hearing for a date as soon as possible. At the hearing, the People will have the burden of showing why the Order of Protection should remain in effect. The attorney for the accused can attack the State’s evidence and present his or her own evidence as to why the Order of Protection should not be issued.

Kevin Kehrli, JD Candidate 2014, substantially contributed to this Article.

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STATUTORY RAPE: GUILT WITHOUT INTENT

Although having sex with a 13 year old girl hardly makes Mr. Polanski a sympathetic figure, his recent arrest brings into the spotlight the often inherent unfairness of America’s strict liability statutes and specifically the crime of “statutory rape”. As is the case in New York, most states have laws that make it a crime for an adult to engage in sexual intercourse with a minor, regardless of whether the adult knew or had reason to know, that the person was underage. Regardless of where one stands on Mr. Polanski’s conduct, by stripping away one of the core elements of criminal law- intent- we have created a situation where people can be convicted of serious felonies without knowingly or intentionally committing a crime. Unfortunately, such “strict liability” statutes – in the absence of knowledge and/or intent on the part of the accused – can often lead to very unjust results.

Let’s be clear: No one is advocating (at least not this author) that adults should have sexual relations with minors or that they should not be punished if they do knowingly engage in such conduct. And since Mr. Polanski admitted that he knew he was having sex with a minor, it can hardly be said that his was an unjust result. Society needs to both deter and punish those who endanger children’s lives. The problem is that by eliminating the element of intent, a core principle of almost every crime, a person can be found guilty of the crime regardless of the circumstances.

Under the New York Penal Law, a person is guilty of rape if he or she, being 21 years or older, engages in sexual intercourse with a person less than 17 years old. Consent is not a defense, and the person is guilty regardless of whether they knew or had any reason to believe the “victim” was a minor. Although such laws were likely passed with good intentions- to protect our children from sexual predators- the consequences of such laws do not always comport with societal ideals of fairness.

A hypothetical example: Let’s say you have a 21 year old son named Joe who is a senior at an Ivy League school and has a bright future ahead of him. One night he meets a girl in a club (where 21 is the minimum age for entry) and they spend the evening drinking and dancing. During the evening she tells Joe that she is also 21, and since she looks to be about that age, or perhaps even older, Joe never gives it a second thought. Later they decide to go to Joe’s dormitory and they engage in consensual sexual intercourse. The problem is that she was actually just shy of 17 years of age and your son Joe is now guilty of a felony offense- even though he had every reason to believe that she was of age.

Again, no one is suggesting that having sex with minors is a good thing or should be condoned, but if Joe had every reason to believe that he was having sex with a 21 year old, should he be guilty of a felony? And let’s be honest- with the short hemlines, high heels, and heavy make-up style that has become de rigueur amongst many young women today, it is not too difficult for them to appear much older than they actually are. If Joe didn’t know, and indeed had no reason to know, that he was having sex with someone under the age of 17, should he be labeled a felon and sent to prison? Is he really a criminal who deserves incarceration? Do we as a society truly believe that Joe must be locked up for our protection? Should Joe be a registered sex offender with his once promising future all but destroyed?

As lawyers we are taught in law school that almost every criminal act has two components: the mens rea (the criminal intent) and the actus reas (the physical act in furtherance of the criminal intent). The intent element is crucial to the fairness of the penal law- reasonable mistakes or accidents that were not intended should not be characterized as criminal and should not be subject to punishment.

For example, if you are going through a security checkpoint and you pick up a wallet that you reasonably believe to be your own, but that someone else mistakenly left behind, (as indeed was the situation in a case I recently handled) then you should not be guilty of a larceny, because it was not your intent or conscious objective to steal someone else’s wallet. Fortunately for my client in that case, larceny, as with most other crimes, does require intent as an element of the crime, and the case was appropriately dismissed by the prosecutor when it became clear that it was an innocent mistake.

In Joe’s case however, no matter what his intentions were, no matter how reasonable it was for him to believe that she was old enough, he is guilty. Indeed, even a prosecutor who felt sympathetic for Joe’s position would be required to follow the law and seek a conviction. Most reasonable people would agree that if Joe really didn’t know or have any reason to know he was having sex with a minor, this would not be a fair result.

So what is the answer? Obviously, the prohibition against having sex with minors is a good one. It is the lack of intent as an element of the crime which makes “statutory rape” unjust. Most advocates of strict liability argue that removing the intent element is a necessary vehicle to proving such cases, since intent is difficult to prove. This is simply untrue. There is already a legal concept that would allow prosecutors to convict the guilty, but also ensure that where justice demands it, the defendant can be exonerated- it is called the “rebuttable presumption”.

The rebuttable presumption in essence means that if you are “caught in the act,” it is presumed that you had the intent to commit the crime, thus relieving prosecutors of proving intent. But the rebuttable presumption provides a safety valve- if the accused can prove that he didn’t know and had no reason to know that he was committing a crime, a jury can find him not guilty.

The rebuttable presumption is already used in New York in several instances- such as the “automobile presumption.” Under the automobile presumption, any occupants of a vehicle found to contain contraband are presumed to have knowing possession of the contraband, thus relieving the prosecutor of the difficult burden of proving that the guy in the backseat knew there were drugs in the glove compartment. Nevertheless, an occupant of the vehicle can offer evidence to rebut the presumption of knowing possession, so that, at least in theory, an innocent person is not wrongfully convicted of a crime they had no intent to commit.

Of course, the rebuttable presumption would not likely have helped Mr. Polanski, as any jury would probably find it difficult to believe that he didn’t know or had no reason to know that he was having sex with a 13 year old girl. But for someone like Joe, who really didn’t know and had no reason to know that he was having seX with someone underage, the rebuttable presumption would allow a jury hearing Joe’s case to render a verdict of not guilty. Under “strict liability” statutes of today, he would never have a chance…

By A. Adam Mehrfar

ALL RIGHTS RESERVED

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