Am I stuck with a "record?"
March 7, 2011 11:14 AM   Subscribe

I have been charged with a misdemeanor. I am concerned.

You are not my lawyer. My lawyer's name is Norm. And I'm wondering if it's possible he's mistaken?

I was charged in New York State with Aggravated Unlicensed Operation of a Motor Vehicle, 3rd Degree. It's a misdemeanor, and the worst thing I've ever been accused of. Basically, I moved four times, failed to update the DMV on my comings and goings, and forgot about a seatbelt ticket from two years ago.

When meeting with my attorney today, he told me that NY State Law explicitly states that you cannot plea this particular offense down to a violation. That is, either I go to trial and get lucky (not gonna happen) or I hope for the lowest possible fine and I am stuck with a misdemeanor on my record.

Did some Googling and I question my lawyer's facts. Is he right? Is it possible I can plea to something less than a misdemeanor? What do I do if I believe he is wrong? (Tell him, of course, but how).

Thanks, lawyers.
posted by Buffaload to Law & Government (18 answers total) 1 user marked this as a favorite
Response by poster: Just to clear that up -- I forgot about the seatbelt ticket, and the court that issued it suspended my license for failure to appear. Then, I was caught driving with a suspended license, which I didn't realize was suspended.
posted by Buffaload at 11:16 AM on March 7, 2011

The world is full of dishonest people, which makes it much harder for honest people such as us to convince people that we are telling the truth. So, although you failed to inform the DMV of changes of address, drove without a seatbelt and then drove without a license, you did all those things purely as an oversight, rather than as a deliberate violation of the law. That would be a mitigating circumstance, except for the fact that it is very easy for anyone who violates the law to claim that it was purely accidental, and it is very hard to confirm what is going on in people's minds. Hence, it is my expectation that yes, you will wind up with a criminal record. Sorry.
posted by grizzled at 11:42 AM on March 7, 2011

Not a lawyer, but...

You can always get a second opinion, but I'd trust the lawyer on this one. It may be that the law leaves room to plead down, but that the particular court/justice/prosecutor will never play ball in this case. That happens a lot in NY state - the towns can differ dramatically in what they will and won't go for.

So, in short - trust the lawyer's advice. Especially if he's been around the block a few times with the jurisdiction in question.
posted by Citrus at 11:45 AM on March 7, 2011

Not a lawyer either, but I spent several evenings in court earlier this year dealing with some legal issues of my own. I'm pretty sure I saw several of these go for a non-criminal plea, which is ultimately what you want.
Here's a link that seems to support what I saw:

Aggravated Unlicensed Operation of a Motor Vehicle – A Misdemeanor in New York State

I might look for another lawyer, or at least get a second opinion...

I would do whatever possible to get it reduced to a violation if you can.
posted by aloiv2 at 12:31 PM on March 7, 2011

I am not your lawyer, despite the fact that your lawyer's name and my name are the same. You have a question of law and a question of trust. The latter will inform your belief in the answer rendered on the former. If you trust your lawyer, then you will believe what he tells you on the former question, and you can make your informed decision. But it sounds as if you do not entirely trust your lawyer and are instead semi-anonymously asking strangers on the internet, as if we will have a better answer than a licensed New York attorney. So here's my suggestion.

1. If you did not do so prior to engaging this other Norm, check his references. Check with the licensing board, and make sure he's got one. Check with other clients, or the person who referred you to him, and figure out if he knows criminal law.
2. Research. Go to a local law library and ask a law librarian how to find the appropriate statutes in question. Read them and see what it is you were actually charged with. Then try to find this explicit New York state law.
3. Find out what the actual penalties are for the offense in question. See if Norm has had a client in a similar situation, and find out what the sentence was in that case.

Again, I don't know New York law, but it stands to reason that it is possible that the state could have set a policy that it is Very Important for all drivers to be licensed, and to make it difficult to escape prosecution (more importantly, to keep track of via record) for violations of that policy. If I am right about this, and Norm is right in what he's telling you, then you are looking at harms mitigation and not escaping entirely the consequences of your actions, which you think are very minor and the state thinks is a little bit more serious. Good luck!
posted by norm at 12:32 PM on March 7, 2011

In case what your lawyer says is true, I can offer this anecdote. I was charged with the exact same thing in TN about 15 years ago. I went to court and I was able to plead to a lesser charge that was not a misdemeanor (driving without a license on my person). Five years later I had a background check for my work. Surprise! There was the misdemeanor, some how it had not been changed. But you know what... it didn't matter. In fact it's never mattered or even come up again through various jobs, moves, bank transactions, getting a license in two different states, etc. I guess there are some situations where it might be a problem but basically it's had no effect what so ever on me.
posted by kimdog at 12:33 PM on March 7, 2011

I'm not a lawyer, but I have gotten arrested for driving on a suspended. You take care of all of this at the DMV before your first court date, then you say you want a jury trial. You want to judge to think of judicial economy and not having things hang around his docket. Basically, if you moot the misdemeanor at issue and come into court willing to go the distance, the judge may just take it at that (or whatever the minimum might be).
posted by rhizome at 12:34 PM on March 7, 2011

You can't do what rhizome suggests in NYS. The ALJs at the NYSDMV are not allowed to touch penal charges (misdemeanors or felonies). These *must* be handled only by full justices in court.
posted by Citrus at 1:03 PM on March 7, 2011

Not a lawyer, not offering legal advice, idle speculation for entertainment purposes only.

What sort evidence is presented against you may make a significant difference. People v. Darrisaw is a 2009 case in which a court held that a simple affidavit from the DMV offering proof of mailing (about the notice of your suspension) is inadmissible hearsay, unless the preparer of the notice is present in court for cross-examination. However, a court may consider this harmless error on the prosecution's part on the grounds that you had reason to know your license could be suspended - that is, you should not have forgotten about the ticket or been so careless about updating your address information with DMV (for example, see People v. Rayford, 2011).

You don't owe your lawyer anything, as such; you could always tell him you're just not feeling it an engage another lawyer who may seem more optimistic (example). But be aware that articles like this are a form of advertising. Ethical standards require that the information be true, but not that it be complete or kept up to date (which is a big part of what you pay an attorney to know about; and I see quite a few changes to the code just in the last 9 months). On the other hand, you may want to keep your relationship with the attorney intact. If this attorney is a traffic specialist, the chances that you (and I, see below) have failed to understand the law properly are much higher than the chance that your attorney has failed to understand it.

Your attorney is correct that the law does not allow this charge to be avoided by a plea bargain - text here, subsection 5. But if you can get the DA to agree, then it is possible. Well, you ask, why should the DA agree? You forgot about your ticket, and you moved multiple times without updating your address. Bad!

However, failing to update your address is grounds for a fine, but it is not a misdemeanor - see here, subsections 8 & 11. If you could persuade the DA that your failure to keep the DMV informed of your address data was carelessness rather than deliberate evasion, and you go in with a certified check for the amount seatbelt ticket plus $300 (4 x $75 fine for failure to notify DMV), then perhaps the DA would agree that your offense was really one of failure to notify rather than AUO. If you haven't been charged with failure to notify - and it doesn't sound as if you have - then you're offering to pay a bit more than the minimum fine for AUO. Besides being a nice little win for the DA's scorecard if accepted, it also raises the interesting question of whether you really had constructive notice about your license suspension - if so, why haven't you been charged with up to 4 counts of failure to notify as well as AUO? I could easily be way off the reservation here, but it seems pretty obvious that your fault was carelessness rather than a criminal indifference to a notice of suspension. I doubt the DA wants to spend time and effort trying to convince the jury that you spent 2 years trying to evade the long arm of the law over a single ticket. You're more of a Homer Simpson than a Sideshow Bob...which I suppose makes me Lionel Hutz.

To wrap up, chances are that your attorney is right and its a problem of explanation rather than competence. But you could ask about liability for the address notification, if only to make sure there are no loose ends to cause problems later. Good luck; I'm curious to hear how it turns out.
posted by anigbrowl at 1:13 PM on March 7, 2011

Oh I wish for an edit facility...when rewriting a sentence to bring out the idea more clearly, it's so easy to end up simply repeating oneself. And saying the same thing again, too.
posted by anigbrowl at 1:20 PM on March 7, 2011

This question is a pretty good example of why it is so pointless to ask legal questions on AskMetafilter. Most of the advice above (other than those saying talk to your lawyer/trust your lawyer) seems like complete crap.

We just don't know enough to answer this for you.

A couple of thoughts --

(1) You don't say whether you have your license reinstated yet. That's the most important thing you can do at this point. Where I practice law (not New York) JUDGES will often dismiss cases (even over the rare objection of prosecutors) when defendants show up to court with a valid license.

(2) Ask your attorney if "nolle prosequi due to compliance" is an option. That is, if you show up on your court date with a valid license, will the district attorney drop the charges? In my jurisdiction, this happens all the time. It is almost unheard of for the district attorney NOT to drop this kind of charge if the defendant has a valid license. Note that I am not talking about pleading it down to a violation -- which may or may not be allowed by New York Law -- I'm talking about the prosecutor entering a nolle prosequi on the record, stating they are choosing not to prosecute you. This is generally a matter of prosecutorial discretion, and is completely separate from what the law may say about reducing charges pursuant to a guilty plea.

(3) Consider the issue of your attorney's fee. Have you paid your attorney in full? Have you paid your attorney at all? Some attorneys (I don't do this, but some do) will paint a gloom-and-doom picture for clients who still owe them balances, to "scare" the clients into coughing up the remainder of the fee. Or, they don't fully investigate the case or work out a favorable deal until the balance is paid. I am not saying your attorney is doing this, but if you've not held up your end of the deal with your attorney, the attorney may be considering you a low priority and not giving you the most detailed answers you may desire.

(4) As to these considerations about how the prosecutor wants "a nice little win on their scorecard" -- I doubt it. In my locale, such cases are so small and ubiquitous that a district attorney DOES NOT CARE whether you are convicted of this offense or not. For them to "lose" a case like this (or dismiss it) would be like losing a paperclip -- completely negligible.
posted by jayder at 2:04 PM on March 7, 2011 [2 favorites]

Response by poster: Hi guys --

Look -- No need to jump down my throat, some of you. I know you're not lawyers/not my lawyer. You're a crowd-source (if that may be a noun). I (ALLEGEDLY) made an error, for Pete's sake. To answer some of your questions -- the trooper let me drive away from the traffic stop (on a suspended license). I began the process of reinstating my license that evening with an email to the court that imposed the suspension, and the suspension was lifted 48 hours later.

I guess I was just wondering if it's worth asking my lawyer if there's anything else he can do. He told me today his planned course of action, I nodded in agreement, and left his office. When I got home, I thought, "I wonder if that was a good idea?" I did some Googling and came here. Today has been a bad day. I just wanted to know what you thought. Maybe I'm feeling a bit defensive but some of you seem needlessly scolding today.
posted by Buffaload at 2:31 PM on March 7, 2011

(4) As to these considerations about how the prosecutor wants "a nice little win on their scorecard" -- I doubt it.

I am sure you are right. The 'win' I had in mind was the combination of slightly reduced administrative overhead plus slightly increased revenue being an incentive for quick mutual agreement. 'Scorecard' was a poor word to describe such a marginal benefit.

I know you're not lawyers/not my lawyer.

Of course - that's more to serve as a brake on my own ego. I hope everything works out for you with a minimum of drama.
posted by anigbrowl at 2:56 PM on March 7, 2011

Response by poster: Well, after reading this and venting, I called my lawyer and asked if something he would consider would be to ask the DA's office to drop the misdemeanor charge completely. I told him I'd even pay the other two related tickets (failure to update the address on my licesnse/failure to update on my registration), as long as I didn't have that misdemeanor on my record. He said he'd certainly ask and add it to his memo. So, thanks for that. I am in a dark mood, which means it's a good time to turn off the Internet and walk the dogs.
posted by Buffaload at 2:59 PM on March 7, 2011

If the criminal conviction can't be avoided, you should ask your attorney about expungement.
posted by Menthol at 3:52 PM on March 7, 2011

Actually that may not be an option in New York now that I look into it further, but still doesn't hurt to ask about it I guess.
posted by Menthol at 3:59 PM on March 7, 2011

Well, after reading this and venting, I called my lawyer and asked if something he would consider would be to ask the DA's office to drop the misdemeanor charge completely. I told him I'd even pay the other two related tickets (failure to update the address on my licesnse/failure to update on my registration), as long as I didn't have that misdemeanor on my record. He said he'd certainly ask and add it to his memo. So, thanks for that.

Odd. My clients don't have to ask me to push for a dismissal. As a criminal defense attorney that kind of goes without saying.
posted by jayder at 4:09 PM on March 7, 2011

Check memail
posted by Mr. X at 3:10 PM on March 8, 2011

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