New NYS Repeat DWI offender regulations questions

Latest post Wed, Apr 19 2017 12:19 PM by Punching Bag 56. 1,522 replies.
  • Tue, Mar 28 2017 2:25 AM In reply to

    • m j c04
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    Re: New NYS Repeat DWI offender regulations

    I think its funny hpw erickench posts dont show up in forum only in emails kind of like same thing polumbo has going on....interesting. someone doesnt want him to know who the judge is that sat out

  • Tue, Mar 28 2017 2:50 AM In reply to

    Re: New NYS Repeat DWI offender regulations

    All these years waiting and thats what we get???? The DMV is literally destroying peoples lives and families lives and thats what we get??? 1 DWI, 20 years ago and labeled one of the worst of the worst recidivist drunk drivers and thats what I get???  1 judge cant be bothered to show the f×#k up for a 1/2hr hearing???  Sills is barely allowed to get out a sentence without being interrupted by some smug ass question??? Is this a joke???  Somebody please tell me this is a F×#KING JOKE!!!

  • Tue, Mar 28 2017 3:06 AM In reply to

    • Justitia
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    Re: New NYS Repeat DWI offender regulations

    I was looking at the judges of the court.  I believe the women judge that sat out was Leslie Stein.

  • Tue, Mar 28 2017 4:05 AM In reply to

    • Justitia
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    Re: New NYS Repeat DWI offender regulations

    Every time I see the webcast and listen to Jeff Lang and Jon Hitsous I want to throw my laptop at the wall.

  • Tue, Mar 28 2017 6:30 AM In reply to

    • KingCuomo
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    Re: New NYS Repeat DWI offender regulations

    m j c04:

    I think its funny hpw erickench posts dont show up in forum only in emails kind of like same thing polumbo has going on....interesting. someone doesnt want him to know who the judge is that sat out

    I reported erickench and I hope they remove him from the site and his posts aren't seen. it seems to have worked.

  • Tue, Mar 28 2017 6:36 AM In reply to

    • m j c04
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    Re: New NYS Repeat DWI offender regulations

    Hahaha  nice

  • Tue, Mar 28 2017 6:46 AM In reply to

    • m j c04
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    Re: New NYS Repeat DWI offender regulations

    So kench now you know the judges name what you gunna do about it try and sue her? She was appointed by cuomo so wut diffrence does it make..

  • Tue, Mar 28 2017 7:27 AM In reply to

    Re: New NYS Repeat DWI offender regulations questions

    Justitia:

    Tax Agent, when you see the oral arguments I would be interested in knowing what you think.

    I've seen the oral arguments and I've read the reactions of those in thread who watched them. Those reactions tell me that the folks here are not very familiar with how oral arguments in most appellate courts are conducted, which is not surprising since you are not lawyers or judges and have little experience with oral arguments. I get the impression that most of the public has this view that in oral arguments each side basically makes a speech to the court outlining their key points, with perhaps a question or two from the judges at the end. That is not how they are done, though. What you saw in that oral argument is very typical of how they are conducted. Let me explain why.

    Before oral argument is done, each party in the case has submitted detailed briefs outlining their arguments in the case along with citing the law and cases that support those arguments. The court also gets the transcript of the trial proceeding and the opinions of the lower courts that have heard the case. The judges and their clerks read those briefs, lower court opinions, etc., rather closely and also do their own research of the law on the issues in the case.

    The judges will therefore often already have a pretty good idea of their analysis of the law and which way they are leaning in terms of ruling on the case. This is the reason why the briefs are so important and one of the reasons why good writing skills are stressed in law school: the appeal can be won or lost on the briefs. Indeed, while it has long been customary in appeals to give oral argument in every case, some intermediate appeals courts in recent years have dispensed with oral argument when the judges believed that the briefs answered all their questions and no purpose would be served in having oral argument. 

    Which gets us to the real purpose of oral argument: it's a chance for the judges to resolve any questions they may still have about the arguments the parties have made in their briefs or that the parties overlooked and did not addresss at all in their briefs. For this reason, the judges don't simply let the attorneys make speeches; those speeches may not get to answering the questions that the judges have. Given that there is only limited time given for each side, the judges will jump right in to asking their questions, and if the answer given does not sufficiently address it, the judges will interrupt and try to get the lawyer to give a specific answer to the question. So it is very much a back and forth between the judges and lawyers. The judges were not at all rude in that oral argument. Instead, this is exactly what lawyers expect to happen in oral argument. This is the sort of thing we are used to doing. You have to be very familiar with your case and the law that applies and think fast to answer the questions that judges throw at you. We are taught that starting in law school when we do mock appellate arguments. So, given what is normal conduct at oral arguments, I found the judges to be polite but sharp in their questioning, just what I would expect if I were arguing before them. But I can certainly see why it might seem rude to those who are not used to seeing oral argument and who might have had a different notion of what they'd be like. 

    The question at the end of oral argument for Mr. Sills about the farse was not the ridiculous question that some here think it to be. Mr. Sills himself early in his oral argument said the DMV decisions on relicensing amounted to a “farse.” He argued that while the DMV has discretion in making licensing determinations, the regulation effectively takes that away and that under the regulation the DMV basically just rubber stamped denial on every application and did not make any serious effort to make case-by-case determinations on relicensing those drivers. That's why he mentioned having seen hundreds of form denial letters that basically only differed in the name and address on them. He was arguing that the DMV had simply rejected Acevedo's application based on the regulation and made no effort to really look at the evidence Acevedo supplied as to why in his situation he deserved a license. He basically had no shot at getting the license, per Mr. Sills. He was arguing that runs counter to the case by case decision making he asserted the Vehicle and Traffic Law (VTL) requires.

    So the judge asked this question: if the DMV's decision making was not a farse as Mr. Sills claimed it was, i.e. if the DMV really does do a case by case dtermination, would his client lose? That's important because the state was arguing that it does do a case by a case determination. So if the judges decide that the record supports that the state does do case by case determinations, what does that mean for Acevedo and the others? Given the argument that Mr. Sills was making, would that mean he would lose since he was relying on the notion that the process is a farse? The judge was basically giving him a chance to offer some other reason why his client should still win even if the DMV case by case decisionmaking was not a farse, but unfortunately it did not appear that Mr. Sills had a ready answer for that. But given the context of the argument he was making, it was actually a very good question, not the nonsensical question that some here thought it to be.

    The other issue raised in the arguments was the other end of the spectrum. Everyone agreed the DMV has discretion in making relicensing decisions, but just how broad is that discretion? Does the DMV have unlimited discretion or are there boundaries to what it may do? And if there are boundaries, what are they? The state agreed with Mr. Sills that the discretion is not wholly unfettered. The state said that there is a balancing test for the DMV to use: the need for the state to protect public safety on the one hand and the individuals need for a license on the other.  I had a harder time figuring out what Mr. Sills thought the limit should be on the state's discretion. He seemed to argue that certain parts of the VTL mandate that certain drivers must get their licenses back after some period of time (e.g. 5 years) and that as a result the DMV cannot impose a more stringent standard for the drivers subject to the 2012 regulation. In other words he was arguing that the DMV could not go so far as to impose a lifetime revocation. So, even though the DMV’s discretion is broad, he was arguing it was not that broad. Part of the reason he was having trouble in particular with the one female judge was that he was not giving her a direct answer to her questions about what exactly limits the DMV from using it discretion in that way. He was trying instead to move the discussion in a different direction that would have been more favorable for him and she wasn't letting him go there. That's a tough spot to be in, and I could see he was bit uncomfortable with the line of questioning. 

    That said, I cannot say that the attorneys arguing for the state were much more impressive. They too had spots where they weren't really getting what the judges were asking and weren't directly answering the questions put to them. But I did think that answer given about the balancing test as a limit on the state's discretion was good. It was a very direct, to the point answer to the question and it was the kind of test that courts often use for these kinds of government decisions. How that might affect the outcome of these cases though is not clear.

    It is very difficult in many cases to tell a whole lot about how the court will rule just based on oral argument, and that is certainly the case here. That said, my view is that neither side hit a home run here; neither side really made any points that I thought were truly impressive. For this case, I think the briefs will matter much more than the oral arguments.

  • Tue, Mar 28 2017 7:43 AM In reply to

    • m j c04
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    Re: New NYS Repeat DWI offender regulations questions

    So where do we go from here? When do briefs start and can we watch them online somehow? Whats the next move in this case?

  • Tue, Mar 28 2017 7:50 AM In reply to

    Re: New NYS Repeat DWI offender regulations questions

    m j c04:

    So where do we go from here? When do briefs start and can we watch them online somehow? Whats the next move in this case?

    The briefs are the written arguments that the parties submitted to the court some time ago. The court reviews those before the oral arguments and the questions at oral argument are meant to resolve anything that the judges thought was unclear in the briefs or things that the judges thought needed to be addressed and that were not covered in the briefs. The next thing that will happen here is that the court will issue its decision in the case, probably a couple months from now. 

  • Tue, Mar 28 2017 8:08 AM In reply to

    • m j c04
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    Re: New NYS Repeat DWI offender regulations questions

    Polumbo dont be butt hurt and run. Its nice to FINALLY see how you truly fee. Im one of the people who sent you $600 for nothing... $600 bux for you to get ahold of my driving abstract which I had a copy of and you reefused to have me send it to you bc you had to somehow justify the $600..your a blowhard anyway and I dont believe you were one of the lawyers who actually got someones liscense back bc you would have said it long ago..Your posts are seen on email notifications just not on tge forum due to your constant soliciting. Now that you flatout state that your agreeing with the dmv at this point I hope to god noone falls for your bs and antes up $600 for nothing. Bye

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