Again, paraphrasing the bar review materials. The NYS bar materials didn't cover DUI in this level of detail, but you can check out this PDF for current info

1. What is operating or in control of a vehicle?
The court looks at the totality of the circumstances but factors include
- is the person in the drivers seat?
- is the engine or the headlights on?
- are the keys in the ignition?
- how is the car situated?

2. Where? The vehicle can be on the side of the road, in a parking lot, or any other public roadway.

3. How much alcohol?
General impairment is a BAC of .08 to .1 (or acutally impaired and no BAC results available)
High rate of alcohol: .1 to .16 (irrespective of actual level of impairment)
Highest rate of alcohol: =>.16
(irrespective of actual level of impairment)

(e:Puddlediving) has a breathalyzer and we've been shocked by how little alcohol it takes to hit that .08 mark. .16 is easy to hit, too. DUI penalties are quite harsh (and include not being able to go to Canada for 10 years), so today's lesson is Don't Drink & Drive!

Note: In PA, you can turn around to avoid a DUI checkpoint. You can't drive around the checkpoint, but you can turn around. Very interesting.

I've been slacking on the bar prep, but when I do focus on it, it goes quickly. Here's today's major point from criminal procedure:

Just say no. If a cop asks to search you, your stuff, your house, just say no. You don't have to consent. You can ignore their bully tactics (a possible example is below). If they wanna search you, and can't see or smell any reasonable reason to search your car/house/hotel room, they gotta get a warrant. The important corrolary to this: hide your shit. Don't leave a gun on the front seat of your car because that fits into one of the exceptions to the general rule of warrants being required: it's in plain view (ditto with plain smell - scuba dry boxes, anyone?), giving rise to probable cause. There are other exceptions, but they all involve higher risk activities.

(This isn't legal advice and I'm not condoning or supporting any law-breaking activities, I'm just paraphrasing bar review materials.)

Don't forget the core message of my first year criminal law class: don't talk to cops.

For graphical illustration of such concepts, here's Ellen Forney's "How d'ya smoke pot and stay out of jail?"


I don't know if the cop freaking out video is authentic but the second video about 4th Amendment rights is correct.

One of my clients says these are awesome.

It didn't look too bad from the 28th floor of the hilton, but traffic out of toronto was creeping along. I was on the QEW for a while doing an okay speed when I hit a patch of ice, flew across the grassy median ditch and landed facing oncoming traffic on the other side. Fucking crazy. Someone else did a 180 right behind me and a little farther a couple tractor trailers were jackknifed and cars were just all over the place. I made it back okay, 2.75 hr trip.

From the office window

Walden galleria just became a much more attractive place.

So, as you all know, I passed the NYS bar exam. Woo! I'll be admitted to practice Feb. 23, if the character & fitness interview goes well. However, I am dedicated to my little town in Pennsylvania and need to be licensed there as well. This means taking the Pennsylvania bar exam on February 28 & 29 in Philadelphia. I grubbed up enough cash to pay for the bar review class (Themis Bar if anyone's interested) yesterday and now I've started studying. Goal for this time around: no one dies. If you're planning to die and I'm needed to take care of your family members during funeral preparations, could you please hold off till March 1? Thanks. I'd really appreciate it.

Yesterday I reviewed the PA bar exam structure: Two days, first day is six essays on PA law mixed with common law (common law is the judicial tradition of law which can differ from "black-letter law" such as statutes and regulations - they also like to call it "fundamental principles of law" even though those principles might not actually be true for your state) and a performance test. NYS uses the multistate performance test (MPT) devised by the National Council of Bar Examiners (NCBE), but PA makes up its own. The second day is the multistate bar exam (MBE) also crafted by the NCBE. I did fine (scaled score of 150, average is 140-143) when I took it in NYS, but PA requires that I take it *in* the commonwealth of Pennsylvania. Seriously? Yep. Do it over.

I will be admitted to NYS on February 23, five days before the PA bar. In Pennsylvania, being sworn in means going to a prothonotary's office in Pittsburgh within a couple months of getting positive bar exam results. In NYS, you MUST attend a ceremony in Rochester. MUST. I kinda wonder if taking the NYS bar first wasn't a mistake. I'd already be licensed in PA by now and I would have been able to take the exam in Harrisburg (way more convenient than Philadelphia or Pittsburgh, but not offered there in Februarys). I'm annoyed that a day that should be celebratory will instead be an annoying and time-wasteful day trip to Rochester. (e:kookcity), wanna have lunch?

Today's focus is criminal law. The vocabulary words are mens rea and actus reas. You have to have the proper mental state - mens rea - to commit the crime: specific intent, general intent, malice, and strict liability. The specific intent crimes are first degree murder, inchoate crimes (look that one up), attempt, and theft. You have to intend for these events to happen to be charged with those crimes. General intent means that you knowingly, recklessly or negligently made these events happen. Malice is for arson and not-first-degree murder. Strict liability means that it doesn't matter if you intended it or not, the event happened. Statutory rape is an example of a strict liability crime.

Actus reus is the act of committing a crime or the omission of acting when you have a duty. Thoughts aren't crimes, but speech can be (like creating a conspiracy to commit a crime).

Friday sunset

Beautiful day!

A lovely sunset from the office window. I used the solarize filter.