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