Kokosa Law Firm – Experienced Criminal and DWI Defense in the Albany Region

The Grey Area of Mental Illness

marckokosa@gmail.com — Tue, 06 Jun 2017 18:23:21 +0000

Over the past year or so I’ve handled about a dozen cases that involved mental illness as a major aspect of the case. To be clear, I’m differentiating this from mental disorder, which could cover everything from mental illness to alcoholism. Believe me, if you get drunk, drive a boat, and kill a kid, I wouldn’t suggest a mental defect defense. What I’m actually trying to focus on is actual, and documented, psychological disorders that the individual has no control over what-so-ever.

In one matter, I worked with a bipolar schizophrenic woman who was on probation and allegedly violated that probation. For the life of me, I couldn’t understand why this woman was on probation when she clearly had a mental capacity that would have negated any criminal intent for the crime she allegedly committed some years earlier. Here, it was a public defender who convinced her that by pleading guilty she would avoid going to prison and avoid being put in a psych facility for the rest of her life. Here lies the rub, however… this woman was never a danger to the physical safety of herself or others. She would have never been put in a facility and thus her attorney convinced her to plead guilty based on a fact pattern that wasn’t true.

In the end, with me this woman had her probation terminated and the money she owed in restitution was converted to a civil judgement which means that she still owed the money but the courts could not criminally sanction her for not paying it. But I have to ask, would she have gone through hell for the 4 years before she got to me if her original attorney took the case by the horns, spoke to her doctors, spoke to her family, and at least tried to figure out what the underlying root issue of the trouble was? Far too often I see cases that are grounded in mental illness being treated as though they are run of the mill criminal arrests because nobody in the wheel of justice is comfortable dealing with psychological issues. I suppose it’s easier to deal with a case the way that you know how, but if you don’t know how to deal with mental illness cases, you shouldn’t be handling them. Our State has begun to put significant resources towards training law enforcement to handle the needs of psychologically distressed and impaired persons and I only see a handful of attorneys taking the same initiative to make sure these persons are treated fairly by the system. At the end of the day, the Judge and the prosecutor are only going to know the information about mental disease that the defense attorney can give them. Personally, I think our profession should spend more time educating ourselves with respect to the mental illness aspects of a case rather than ignoring them because they are often difficult to understand and even more difficult to explain to other people.

Now, I won’t go so far to say that every time a client says they have a psych defense it should be taken seriously. I recall many years ago when I was on the other side of the table the defendant indicated that she may want to pursue a psych defense that she had a mental compulsion that forced her to drive (it was a rather simple unlicensed driver case). That didn’t really pass the smell test, but I can say that if she procured a doctor’s report I would have definitely looked at it and taken it into consideration. Realistically, no doctor would have ever written such a report and her attorney (who I still hold in high esteem to this day) was cognizant of that fact. The point is, though, most prosecutors will evaluate a criminal defendant who has mental illness if their attorney does the legwork and produces substantive evidence of the mental illness and how it could effect the case.

So with that, I implore the justice system to recognize the effect of mental illness on criminal defendants. Often there are solutions that don’t require confining someone and stripping them of their freedom. I can say, however, I am very thankful to the State for investing in the officer training to recognize the mental illness issue and I will candidly admit that I’ve met several investigators during this same time frame who have ended an investigation because they recognized the psychological issues, were able to articulate their facts and training to prosecutors, and come to a reasonable conclusion before an investigation turned into a full blown prosecution.

As always, these blog posts are for discussion only and do not constitute legal advice to any specific person or any specific situation. If you want that, you have to contact The Kokosa Law Firm, P.C. at (518) 907-4694 or mkokosa@albanylawgroup.com to set up an appointment for a free consultation. Also, if you have any similar stories of how mental illness has affected a case for someone you know, please let me know how the case worked out. I’m always trying to learn more and often the stories relayed to me give me perspective on how to work with similar individuals.

The DMV 3 in 25 Years Revocation Rule: Constitutional? Political? Both or Neither?

marckokosa@gmail.com — Wed, 05 Oct 2016 17:46:47 +0000

Lately I’ve had a few clients who are dealing with the NY DMV 3 in 25 rule. If you’ve never heard of this rule, let me give you a quick run-down. If you are convicted of a DWI or DWAI offense for the first time, the suspension or revocation period is pretty well spelled out in statute. If it is a DWAI, you generally receive a 90 day suspension and if it is a DWI you generally get a 6 month revocation. Both of these convictions allow you to take the DMV’s impaired driver program and apply for a conditional license.

That being said, in 2012, the DMV enacted new regulations that allowed the DMV to look back over your driving history for the previous 25 years. What are they looking for? These: Convictions for DWI, DWAI, DWAI-Drugs, Zero Tolerance violations, Breath Test Refusals, or generally any violation of Vehicle and Traffic Law sections 1192 or 1194. For the sake of brevity, let’s just call these “Alcohol Convictions.”

Here’s where the new rules changed everything. If you receive a second alcohol conviction in the past 25 years, you will have to serve the entire revocation period before you can apply for any licensing privileges, even if you take the impaired driver program. Okay, that doesn’t sound too bad. Six months without a license? Let me now show you what I call the career ender.

Let’s say you received a DWAI in 1993. You were young, dumb, and 21 years old. I certainly was when I was 21. Then, in 2002, when you were out celebrating your birthday, you got stopped by the police and blew a .08, right on the nose. The prosecutor knows she will have a tough time with the case, so you get a reduction to DWAI. Now, it’s 2016 and you’re in your mid 40’s. A bit wiser and you don’t put up with this police-state crap. You get pulled over after having a glass of wine at dinner and the police officer stops you because you were going 55 in a 54. If you’ve read as many DWI supporting depositions as I have as both a prosecutor and a defense attorney, you know that sobriety tests are designed for failure. I’ve actually had officers in my office before attempting to show me how they conducted the sobriety tests and even they couldn’t perform them without failing. In any event, you hit 2 of the 8 clues on the walk and turn test and 2 clues on the one leg stand test. Never mind that you have a bulging disk… the officer doesn’t care. So, you tell him to pound sand and refuse the breath test. Even if you were found not guilty of the DWI or it was dismissed, the DMV categorized you refusal as a third event in 25 years. So what does this mean?

3 in 25

3 or 4 alcohol events in 25 years means your license application following any revocation period will be denied for at least 5 years. No conditional license until 5 years has passed. At that point, you will be required to install an ignition interlock for likely another 5 years. At a cost of $150 for installation and about $100 per month for monitoring by the State, you just gave the State another $6000. (For a further discussion on NY’s use of the DMV to balance the State budget, see my other blog post at: http://www.albanylawgroup.com/the-upstate-new-york-empire-of-traffic-tickets/ )

So, you are in the prime of your career. You are 44 years old and have been in trouble twice in the past 2 decades. Only, you can’t drive. You can’t make it to work, because we live in upstate New York and the NYC MTA has yet to grace us with the presence of a subway or a decent bus system. Now you don’t work. So you made 2 bad decisions and fought the man once in 25 years, and you now have to be introduced to the welfare rolls.

Don’t get me wrong, I do not support drinking and driving. In fact, I support complete abstinence when operating a motor vehicle. Alcohol kills people when they drink and drive. However, I do not necessarily agree with draconian penalties that were not passed as laws, but rather were rules directed by the Department of Motor Vehicles at the behest of our governor. What is brutal is that I have clients who cannot even get to alcohol treatment because the sheer power that the DMV (read: Governor) exerts over the driving privileges in New York.

So what happens if you have 5 alcohol related events in 25 year? That’s a permanent denial of your license application in New York. Honestly, I don’t know how I feel about this one. On one end, part of me believes that if you made an alcohol related mistake on average once every five years, then you should be comfortable not driving. The other part of me says, if your government wants this rule, then let them pass it through the legislature and vote on it. This is a democracy, right? No, New York has not been a democracy in a long time.

To close, I want to share with you what I consider the worst case scenario when it comes to the 3 in 25 rule. I know a guy who took a DWAI when he was 16 years old and it was 14 years before these regulations were ever dreamed up by our State’s commander-in-chief. Had he pleaded guilty to DWI as he was charged and had the case sealed as a youthful offender adjudication, by law it would not have counted against his 3 in 25 because it would have been an adjudication and not a conviction. Instead, his attorney probably did the right thing since they didn’t know what was coming down the pike in a decade and a half and got the charge reduced to a violation. In any event, he had some issues with alcohol in his 30’s and ended up with 2 DWI convictions within 4 years. Had those 2 DWI convictions stood on their own, he would have his license right now. He’s done everything the State and his doctor has asked of him. He went to rehab, quit drinking, got healthy. He’s got a child, bills, and every other adult responsibility. What he doesn’t have is a job. Doesn’t matter that he’s been clean for 4 years, no employer will keep him on because he doesn’t have reliable transportation. In New York City, where all of these “regulations” are thought up by the governor’s dream team, you can get by without a license. Upstate, the long forgotten appendage of New York State, you may as well use your last few dollars to take a taxi to the welfare office.

As always, my blogs are for discussion purposes only and are not intended to be legal advice for any specific person. However, if you find yourself charged with a DWI, please realize that the consequences may reach much further than the edges of the courtroom. If you are charged, please feel welcome to call the Kokosa Law Firm, P.C. at (518) 907-4694. If it is after hours or the weekend, we try to answer calls24 hours a day. You are always welcome to call me or text me at (518) 466-3062 as well.

Officer: If it’s okay with you, I’m just gonna look through the car? You: Noooope

marckokosa@gmail.com — Tue, 16 Aug 2016 19:17:17 +0000

WHY CONSENTING TO A SEARCH OF YOUR CAR WILL NOT HELP YOU

You can tell the officer whichever way you prefer… my favorite is the Bill Lumberg. “I’m gonna have to go ahead and say you cannot search my car.” Other very acceptable responses are, “No, no you cannot” or just simply, “No.”

Sometimes they may try guilt trip on you, with the ol’ “If you’ve got nothing to hide, then why not consent.” Sometimes the police officer will use the forceful tactic of telling you that if you say no, he’s just going to bring out the dog. Sometimes the officer will use a double negative question (which they aren’t supposed to do) to trick you in to consenting. I’m sure you’ve heard this line before… “You don’t mind if I search your car real quick, do you?” If you say “no” are you saying you don’t mind. If you say “yes” are you consenting? Regardless, here are some methods behind the madness of refusing a car search. And yes, as always, this is not particular legal advice for a particular person. This is just for conversations sake. And if you do end up arrested, please always feel welcome to call the Kokosa Law Firm 24/7 at 518-907-4694 (or text us at 518-466-3062). In any event, here we go.

Why not consent to a search?

Because this is America, dammit, and not gestapo Germany. You have a right to be free from unreasonable searches and seizures and the sooner you give up that right the closer we are to a totalitarian State where the government controls your every movement. Yes, that was a bit over the top, but if you give up one right, why not give up another… then another. You get the picture.

This is a lose-lose game for you. You may think you know every nook and cranny of your car, but I’m going to venture that at some point in the last year someone else has driven your car. I’ve had this exact case come to me where a young man was adamant that the drugs found in the car after he consented to a search weren’t his. He even suggested that the police officer planted them. After a bit of investigation, it turns out the drugs were prescription drugs were dropped by his brother who actually had a written script for them. That case turned out well for the young man, but what if it wasn’t his brother…? what if it was the mechanic? Do you trust him to come forward and take responsibility?

Sadly, this can go even further. Right now there are more than 300 cases in Texas where the defendant pleaded guilty to drug charges after consenting to searches where the officer found “drugs” but the drugs turned out to be everything from candy crumbs to food seasonings. Those people pleaded guilty just to get out of jail, not because they did what they were accused of. If you are in that spot, the Kokosa Law Firm is here to help you, not coax you into a plea. If we have reason to believe the evidence is weak, we will push as much as we need to get you to the right place in your case.

If you think that giving your consent means that the officer will just assume your innocent and move on, you are sorely mistaken. This goes the same if you think you’ll get out of that speeding ticket. If you consent, they will search. If they pulled you over, you’re probably getting a ticket. While years ago, the courtesy warning was a mainstay of the police officer’s utility belt, these days the officers are being pushed to write as many tickets as they can. Why? Because it’s revenue and in case you haven’t noticed, over the past 20 years traffic violation money has become a huge part of our State revenue.

So the officer says that he’ll bring out the dog to sniff around if you don’t consent? Fine, let him call Rin Tin Tin. What’s the worst that can happen? If there was stuff in your car, and the dog is alerted to it, you’re ending up with the same charge as if you let the officer poke around. The officer will never say it, but they often insinuate that if you are completely cooperative with them, they’ll cut you a break. There’s no truth to that, and more often than not, they are taught by older officers that they’ll get more arrests if they can gain your trust. Your best interest and their best interest are usually never the same.

More importantly, if the officer indicates that he is bringing the dog out, you should ask if you are free to leave. He’ll say “no,” and that you are being temporarily detained. Ask again, every 3 to 5 minutes. If the officer keeps saying “no” at some point your temporary detention is going to become an arrest. He cannot keep you indefinitely and if s/he wants to mess up his own case, let him or her. And, if the dog indicates there is something in your vehicle and the officer searches and finds nothing, what have you really lost? Certainly not your inalienable rights!

I didn’t say don’t be polite. You can be respectful and still assert your rights. Remember, they belong to you and by waiving them, you are essentially giving something of value away for free to a person who gets promoted by how many arrests he or she makes. Be polite, but say “no thank you.”

In some cases, an officer has the right to search your car without your consent. It doesn’t hurt to just let that officer know that you don’t consent. If he smells weed or there is a vial of white powder in the center console, he can probably search anyway. But, you may want to break out the cell phone and get some video showing you not consenting to a search. It may not count for much at the time, but get it to your attorney and she or he may be able to make an issue out of it.

If you are the passenger in the car, and that car is hot, dirty, whatever, your first question should be, “Am I free to leave.” If the officer says “no”, then sit tight and be quiet. If s/he says “yes,” walk away quietly and without a scene. Your driver may need an attorney so feel free to give us a call at 518-907-4694 once you are out of ear shot of the officer.

Other than to say, “I do not consent” use your one of your other rights such as the right to remain silent. Alternatively, be fancy and say you assert your 5^th Amendment right and then be quiet. Pro Tip: It’s the “being quiet” part that is the most important. If the officer arrests you, just ask for your lawyer and then stay quiet. Other than to respond to biographical questions such as name, age, gender, your response should be, “I want an attorney.”

Okay, time for the final thought on this topic. In too many situations, people think they can out-maneuver the police or just be really nice to them with the false belief that they will just let you go. The reality is that they are trained to pull out evidence by whatever means necessary without breaking any rules. Most are very good at this, which is why refusing consent to search and then remaining quiet is so important. Everything you say will be interpreted whichever way the officer feels will get him/her to the bottom line in the quickest manner.

I do not in any way condone being rude or obnoxious to the police, however, so don’t get that idea. Sometimes they can be rude to you; don’t return the gesture. At the end of the day, they aren’t paid to make friends, they are paid to make arrests. Most of the time, a jury will give the officer a pass for being rude with the understanding that they probably have a tough job. A defendant never gets that advantage. If you are a jackwagon and you are at trial, you’d better believe that the prosecutor is going to make sure everyone in the courtroom knows it. Jurors often connect being rude with being guilty.

And my final word… get a dash cam. They’re like $30 these days and they don’t lie, fabricate, or embellish.