As is shown in the pictures below, the third floor is approximately 4500 square feet with 6 offices, two conference rooms a bull pen designed for two assistants, a large library, a kitchen area and a large file room which also serves as a trial preparation room.  Below are some photos:

If you or your small firm are looking for office space give us a call to take a closer look.  Our focus is on finding attorneys with whom we would be comfortable sharing the space.  We are generally flexible on rent and services.

Hugh Stephens (o) (716) 852-7590 (c) (716) 208-3525.

Downwind, Counties and other: in the State of Utah, the counties of Beaver, Garfield, Iron, Kane, Millard, Piute, San Juan, Sevier, Washington, and Wayne; in the State of Nevada, the counties of Eureka, Lander, Lincoln, Nye, White Pine, and that portion of Clark County that consists of townships 13 through 16 at ranges 63 through 71; and in the State of Arizona, the counties of Apache, Coconino, Gila, Navajo, Yavapai, and that part of Arizona that is north of the Grand Canyon.

See http://www.justice.gov/civil/common/reca.html (last accessed November 20, 2011).

Over the past week we have received hundreds of calls about the Onsite Participant category of claims under the Radiation Exposure Compensation Act (“RECA”). Most had questions about exposure by American servicemen during the end of World War II, particularly those serving in Japan after the atomic bombing of Hiroshima and Nagasaki.

Hiroshima and Nagasaki are not covered by RECA. Additionally, the Act does not cover members of the military who occupied those cities or who may have been held in those areas as Prisoners of War. Congress determined that the atmospheric atomic detonations that occurred at Hiroshima and Nagasaki to end World War II are not part of RECA and limited the Act’s coverage to the atmospheric nuclear testing program conducted by the United States that followed the war. Also, the Act only provides compensation for an individual who has contracted a covered cancer following their exposure. Please note that neither skin cancer or prostate cancer are designated as compensable.

See http://www.justice.gov/civil/common/reca.html (last accessed November 20, 2011). This information is more interesting than helpful. The relevant statute is the Radiation Exposed Veterans Compensation Act which was passed in 1988. The statement of President Regan that accompanied the signing of that legislation explains:

I have today approved H.R. 1811, the “Radiation-Exposed Veterans Compensation Act of 1988.” The Act adjusts the law governing eligibility for disability benefits for certain veterans due to the unique circumstances of their military service in the early days of the atomic age.

The adjustment applies in limited circumstances to three specific categories of American veterans:

• veterans who served with U.S. forces occupying Hiroshima or Nagasaki, Japan during the period beginning on August 6, 1945, and ending on July 1, 1946;
• veterans interned as prisoners of war in Japan during World War II (or who served on active duty in Japan immediately following such internment), if their internment resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who served in the forces occupying Hiroshima and Nagasaki; and
• veterans who participated on-site in a test involving the atmospheric detonation of a nuclear device.

The adjustment applies only with respect to specified diseases—primarily cancer of various organs—that manifest themselves within 40 years after the veteran last participated in the military radiation-related activity or, in the case of leukemia, 30 years after such participation. Thus, for veterans who served in Hiroshima and Nagasaki or were prisoners of war in Japan, the period for manifestation of the disease already has passed.

See http://www.presidency.ucsb.edu/ws/index.php?pid=35855#axzz1eInDqomw (last accessed November 20, 2011). So while RECA does not provide benefits to those veterans who were exposed to radiation in Hiroshima and Nagasaki, the Department of Veterans Affairs may provide benefits.

Rocky Flats Legacy by Scott Bison

The interaction of Parts B and E can cause significant confusion. Under Part E a surviving spouse receives compensation of $125,000 if her husband’s occupational illness has been accepted by the program and that occupational illness contributed in some way to his death. But if he had at least 10 years of work life remaining at the time of his death (i.e. at least 10 years remaining before his social security retirement age), the amount that should be distributed to his surviving spouse is $150,000. If he had at least 20 years remaining before he reached his social security retirement age, the amount is increased to $175,000.

We have found that claims examiners sometimes forget to properly apply this rule and pay out $125,000 instead of $150,000 or $175,000. This is probably because when a living employee files a claim for lost wages under Part E, after being compensated ($150,000) under Part B for cancer for example, the impairment is processed separately from the lost wages claim and must be filed separately. The $125,000 compensation to the surviving spouse is analogous to the impairment portion of the Part E claim and the additional $25,000 or $50,000 is analogous to the lost wages portion of the Part E claim. In other words, this is probably a good faith mistake by a well meaning claims examiner, not an attempt to pay the surviving spouse less than she has a right to receive. I would describe the type of assistance we provide in this context as more akin to making sure these mistakes are not made or making sure they are corrected in a timely fashion, than protecting the claimants from a claims examiner who is seeking to save his or her employer the cost of paying the claim. We tend to find that claims examiners generally want to see qualifying claims paid and non-qualifying claims denied primarily because they want to avoid the pain and embarrassment that accompany a claim that is initially recommended for acceptance and later denied by the Final Adjudication Branch. We are sometimes less convinced of the good faith and fair dealing of the District Medical Consultants (DMCs), who determine among other things whether claims should be compensated under Part E where occupational exposure to a toxic substance has aggravated, contributed to or caused an illness. But we have seen a number of claims, which were initially denied, compensated based on the good work of a DMC. Our view generally is that the program in spite of its very significant flaws functions reasonably well and that our work sometimes leads to compensation or at least to more efficient compensation. Sometimes getting compensation more quickly is extremely important to our claimants, especially those that are sick and who will lose some or all of that compensation if he or she does not live long enough to collect. Those claims can be some of the most stressful and potentially disturbing.

Part E becomes a little more complicated when there are children especially non-marital children. If a worker has a surviving spouse, a child or children with that surviving spouse and no other children, the surviving spouse receives all of the survivor compensation under Part E (i.e. $125,000, $150,000 or $175,000 depending on remaining work life). This is based on the idea that a surviving spouse will share the survivors’ benefit with her children. If the worker had a child or children that were not also children of the surviving spouse, those children will divide half of the Part E survivors’ benefit with the surviving spouse. This allows both the surviving spouse and the surviving children to be compensated separately for their separate losses as there is no guarantee that the surviving spouse would share the survivors’ benefit with the non-marital child or children. If there are both marital and non-marital children, all the children divide half the proceeds such that marital and non-marital children receive the same compensation. This prevents the domestic disturbance that would otherwise accompany separate treatment. You can imagine the bitterness that might accompany separate treatment especially in the situation where all the children live under one roof with the surviving spouse. The potentially complicated circumstances that arise in the application of this aspect of the program can be easily overlooked by the claimant and the claims examiner. We have been able to correct a misapplication of this provision for the benefit of one surviving spouse.

We have also worked with adult children of step parents who were entitled to receive payments under Parts B and E. These claimants were adults when their father married their step mother. This did not mean that their step mother did not serve a familial role as a mother in their lives and the program recognizes this fact. So while some step parents of adult children never take on the role of parent to their step children and some adult step children never take on the role of children to their step parent, some do. Those that do are entitled to receive compensation just as biological relatives and adoptive relatives are. The proof necessary to establish the relationship is not specifically defined but pictures of step children and step parents at family functions are useful. Evidence that a step child was involved in the medical care and medical decisions is also useful. One point that we have made is that family relationships do not necessarily need to be perfect relationships. The assessment should focus on the depth of the relationship not the success or perceived quality of the relationship. Family relationships can be and often are messy. But one thing that characterizes family relationships as often as family disputes are family reconciliations. Once the step parent has passed away, at least in part from occupational exposure to hazardous substances at a Department of Energy (DOE) facility, there are no further opportunities for reconciliation and compensation should be available. At the same time, in some circumstances a familial relationship with the step parent never develops and compensation is not available.

The qualifications for Part E survivors’ benefits are a constant subject of confusion. A surviving spouse, as described above, is entitled to all or half of the survivors’ benefits ($125,000, $150,000 or $175,000), depending on the existence of non-marital children, so long as the workers’ accepted occupational illness contributed to his or her death. But in order for a child to receive survivors’ benefits that child must have been under 18 at the time of his parent’s death, or have been under 23 and still a full time student or have been incapable of self support at the time of the employee’s death. This distinguishes Part E from Part B. There is no requirement that the cancer, beryllium disease or silicosis compensated under Part B be shown to have contributed to the employee’s death for a surviving child to receive compensation. The compensation to the survivor is for the cancer not for the employee’s death. The compensation is always $150,000 and can only be paid once. If the employee is paid, his or her surviving spouse is not entitled to an additional payment under Part B and neither are his or her children. At the same time, if the employee dies before being paid, his surviving spouse is entitled to compensation. If the surviving spouse is deceased and has not been compensated under Part B, then the children of the qualified worker are entitled to compensation. There is no need that the child be under 18, or under 23 and still a full time student, or incapable of self support. Part E compensates for cancer, not lost wages so there is no requirement that the child establish dependence. But under Part E, it is necessary to show dependence because Part E is designed to replace wages like workers’ compensation payments. Interestingly, there is no requirement that the child who is “incapable of self support” at the time of the worker’s death, show that he or she was always incapable of self support or dependent. An adult child who worked for many years and then became disabled and incapable of self support prior to the worker’s death, is entitled to compensation. The rationale appears to be that such an adult child has lost the ability to seek support from the deceased worker and should be compensated for that loss. A child is not permitted to recreate dependance by going back to school and therefore in order to establish dependence it is necessary to show that the child remained in school after the age of 18. Once a child reaches 23, full time school is not sufficient to establish dependance.

People who are repeat offenders need not read any further. Having been through the mill on one or more occasions, they know generally what to expect because they have experienced it. This is for first offenders – an attempt to give the ABCs of what happens after receipt of a drunken driving ticket. Circumstances alter cases. The matters set forth below do not happen in every case, but it is useful to discuss what happens in the typical simple case.

The Arrest

In the usual case, the driver driving alone at night after a stop at a local watering hole or social gathering is pulled over by a law enforcement official (county sheriff, state police, or town or village police). When the law enforcement official approaches the vehicle and the window is rolled down, the arresting officer generally later testifies that “the driver’s eyes were glassy, his speech was slurred and there was a strong odor of alcohol on his breath.” This is drunken driving law enforcement testimony 101, it almost certainly will be part of the case against the defendant, the person who receives the ticket or tickets.

After the initial stop, the law enforcement officer requests to see the driver’s license, registration, and insurance card; and, in a strikingly large number of cases, will later testify that the defendant had difficulty sorting through his wallet and locating his license. The police officer will generally administer an alcohol detector, which is a simple device, not a breathalyzer, which provides a positive reading if alcohol is present. The officer will also ask the driver if he has been drinking and, truth be told, the driver, in almost every instance responds, “yes, one or two draft beers”, irrespective of the true number or type of drink.

Road Side Tests

The officer then will conduct what is known as road-side tests allegedly to determine the effects of alcohol, but usually administered only to trip the driver into failing such tests by failing to properly follow the directions given. These include touching index finger to nose with either hand, reciting the alphabet, counting from 100 backwards by 7s (ie. 100, 93, 86, 79, etc.), walking a straight line heel to toe while keeping hands at side, turning and walking back, and standing on one leg or other test. The officer will fill out a sheet which lists the various tests and sometimes indicates whether or not the defendant passed or failed and on what basis.

At the conclusion, the officer advises the defendant that he is under arrest for driving while intoxicated (DWI). He places the defendant in the police vehicle with or without handcuffs and transports him or her to the police facility.

The Breathalyzer

Thereafter and within two hours of the initial stop of the defendant’s vehicle, the officer requests that the defendant submit to a breathalyzer test. The breathalyzer measures the alcohol in the air in the deep lung by employing a principal known as Henry’s Law (the amount of alcohol in a liquid is 2100 times the amount in the gas just above the liquid). In other words, the machine takes a reading, multiplies it by 2100, and gives the blood alcohol content. .08 or above is considered an excess blood level in violation of a particular DWI subsection (V&T §1192 subd. 2).   § 1192 provides in part:

Operating a motor vehicle while under the influence of alcohol or drugs. 1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.

2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article. (b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.

3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

Issuance of Appearance Tickets

The defendant is generally given at least two appearance tickets. The first is a ticket for the violation of the V&T law which is alleged by the officer that the driver violated in order to give the officer reasonable grounds for making the stop: driving to the right of the white line designating the right edge of the road on certain roadways (V&T §1180), crossing the double yellow line (V&T § 11258(d)), making a wide left hand turn (V&T § 1166(b)), speeding (V&T § 1180(d)), driving too fast for conditions (V&T § 1180(a)), and reckless driving (V&T §1212). The possibilities are legion. The reason for this is it is not lawful for a law enforcement official to stop a person without reasonable cause (V&T § 1194(c)). They cannot stop someone for driving late at night or early in the morning or for simply driving away from a place where alcohol beverages are served, although this prohibition is honored more in the breach than in the observance by law enforcement officials. Reasonable cause depends on the totality of circumstances (V & T § 1194(c)). The next ticket is a ticket for driving while intoxicated, charging two violations (V&T § 1193 subd. 1 and 3), a per se violation, that is driving with a blood alcohol content (BAC) of .08, the level has been reduced to that level over the past decades. A second violation charged is for driving while intoxicated, common law (V&T Law § 1192 subd. 3).

The defendant is usually allowed to call a family member or an attorney if the defendant requests it, and is allowed to go home, but not to drive his or her vehicle. If the facts are more egregious, there may be no release of the defendant depending on the degree of intoxication, lack of cooperation, abuse of the law enforcement officers, etc.

The appearance ticket sets forth the date and time when the defendant is required to appear in court and the place of the court that has jurisdiction geographically over the place where the defendant is alleged to have committed the violation.

The Arraignment

The defendant must appear at the court for arraignment at that time and place, unless adjourned to another date. At that time he will be advised by the judge of the charges made against him and given the opportunity to plead guilty or not-guilty and given an opportunity to hire an attorney if he does not yet have one. At the arraignment the defendant almost never pleads guilty or is allowed to plead guilty by the judge presiding. The defendant is usually provided at the arraignment with a sworn statement of the police officer outlining generally the facts of the stop, the facts of the alleged violation, and the results of the so-called road side testing.  If the defendant receives copies of these papers and the officer files an original affidavit (statement made under oath) detailing the fact that the defendant was driving while intoxicated based on the personal observation of the police officer, the court must make the defendant surrender his drivers license at the conclusion of the arraignment (V&T § 1193 subd. 7).  This is called the prompt suspension law.  Some justice courts are uncomfortable with this statutory procedure because they believe that it violates the principle that the defendant is presumed innocent and will adjourn the arraignment so as to not be requiring license surrender based only on the charge. If the license is necessary for the defendant’s employment, there are procedures which allow the defendant to receive a conditional license which will allow him to drive only while working or to and from work only. If the defendant has refused a breathalyzer test, no conditional license will be available and the defendant will be scheduled for a hearing at the motor vehicle bureau to show cause why his license should not be suspended or revoked. The legal principle here is that driving an automobile is a privilege, and every licensed driver implicitly consents to a breathalyzer test on acceptance of the license to determine if he is in violation of the law. The failure to submit to a breathalyzer test is a sufficient basis, by itself, for revoking or suspending the driver’s license (V&T § 1194(c)).

DWI (common law) (V&T § 1192 subd. 3) and driving while blood alcohol exceeds .08 (V&T § 1192 subd. 2) are both misdemeanors punishable by up to a year in a local jail plus fines and surcharges. Conviction means the defendant has a criminal record and conviction carries with it certain collateral consequences, not the least of which is that a conviction of either of these sections will result in the defendant not being able to enter Canada as an undesirable person for a period of ten years after the date of conviction. The restriction on travel to Canada also applies to a conviction for driving while ability impaired (DWAI) (V & T § 1192 subd. 1) even though it is not a crime under N.Y. law (violation). Another is that an ignition interlock device may be required (V&T § 1198).

Certain factors, if present, may result in a charge of Aggravated DWI, still a misdemeanor, but one which if conviction results, carries enhanced penalties. Such factors are: Elevated BAC reading of .18 or above (V&T § 1192 subd. 2(a)), driving with a child in the car (V&T § 1192 subd. 2-b), driving with a suspended or revoked license (V&T § 511).

Previous conviction for DWI within ten years may make the charge a felony charge which results in higher minimum and maximum fines, more severe license sanctions, and increased possible jail time. It also means that the defendant is not eligible for a hardship license after arraignment.

If the defendant has ties to the community (for example, a job or a residence in the county, etc.), the defendant is generally released on his own recognizance, which means that no bail or bond is required, and the court relies on the defendant to be present at each succeeding court date. The failure to do so, without advance notice to the court, will result in bail being set, a bond being required, or may result in jail, depending on the circumstances and the judge.

Assigned Counsel Rare

If the defendant is unemployed and has no funds to hire an attorney, and upon a detailed showing that this is so and that the defendant has no assets that he could sell or mortgage in order to avail him of funds to pay an attorney, a court will sometimes assign counsel. Instances where this is done are rare.

Defendants Choices

If the blood alcohol reading is just marginally over .08, the defendant may on some occasions be allowed, depending on local practice and the policies of the District Attorney of the county in which the violation occurred, be allowed to plead guilty to Driving While Ability Impaired (DWAI) (V&T § 1192(1)). DWAI is not a crime, it is an offense, and carries with it lesser penalties, such as license suspension rather than revocation. This plea to this lesser included offense is not allowed if the defendant has been arrested for DWI at any time in the past and is never allowed when the defendant is anything other than a bona fide alleged first offender. It is not allowed when the blood alcohol reading exceeds .13 or some other level as set by the district attorney as a policy. Generally the defendant is also required to plead guilty to the V&T infraction, which gives the basis for the stop as well. This also is not a misdemeanor but a traffic infraction, usually a violation of the rules of the road. For example, speeding (V&T § 1180(d)), red light (V&T § 1110(d)), stop sign (V&T § 1172(a)), driving to the left of the white line (V&T § 1128(a)), crossing the double yellow line (V&T § 1128(d)), crossing the center line (V&T § 1126(a)), reckless driving (V&T § 1212), etc.

Jury Trial

Because the defendant is charged with a crime (misdemeanor), he is entitled to a jury trial on those charges. Years ago, jurors would only convict a fellow citizen on the clearest proof. Within the last few years, however, with the publicity about deaths and severe injury resulting from such activity, jurors are much more willing to convict fellow citizens, especially if the proof of the driving while blood alcohol level is elevated is clear, proof is offered that the machines are recently calibrated, and that the operator is a person certified to give the test. Sometimes if the arresting officer’s testimony seems a little zealous, the jury will convict on the charge of excessive blood alcohol but not convict on the common law charge. The common law charge requires the judge to tell the jury in its instructions that in order to convict the defendant of common law driving while intoxication, the proof must show that the driver was “incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” 48 N.Y.2d at 428. ( People v. Cruz, 48 N.Y.2d 419 (1979))  Based on this, the jury may acquit the defendant of DWI and instead convict the defendant of driving while ability impaired (DWAI), a lesser included offense, but not a crime that requires only proof that the alcohol consumption adversely affected the operation of the motor vehicle by the defendant.

Typical Defense Strategies

For this discussion, assume a driver with a clean license and no previous arrests who scores a 1.2 on the breathalyzer test and there is no accident or property damage.

1. Motion to Suppress

The stop was without probable cause and, therefore, the breathalyzer tests and police observations should not be allowed into evidence. The alleged violation (i.e. crossing the center line or the line on the right side) was manufactured by the police to stop the car. This motion is heard by the judge (not the jury) and involves the testimony of the arresting officer and his credibility. Passengers in the defendant’s car can also testify at the hearing (usually not the defendant because some judges might allow the defendant to be questioned about the drinking). Judges usually find that the testimony of the police officer is believable, and there was probable cause for the arrest. The motion to suppress may be joined with a motion to suppress the results of the breathalyzer test on the grounds that the machine was not calibrated within the required time before the administration of the test, assuming that the documentary evidence turned over to the Defendant’s counsel shows this to be the case. At the hearing on the motion, the Court may well decide that the failure to calibrate the machine in a timely fashion goes to the weight rather than to its admissibility and deny the motion, but at the hearing the judge may indicate that he is leaning toward not receiving the evidence or not crediting the results which then gives the defendant and his attorney some inclination on how to proceed on that issue.

2. Trial of the Case without a Jury and the Urging of the Court to Acquit the Defendant of the DWI Charge and Find Him Guilty of the Lesser Included Offense of Driving While Ability Impaired

This would result in lesser fines and penalties and would result in no convictional DWI (thereby making a subsequent arrest not a felony) and is an attainable strategy assuming a low BAC level, no verbal abuse of the arresting officer, no accident or extensive property damage and no damaging driving evidence (ie. driving off the road into a ditch or other evidence of affected driving). The trial time is short; usually less than an hour, and the defendant’s counsel can credibly urge the court that the evidence does not support DWI (incapable of operating), but rather DWAI (affected operation). The DWI is much more difficult to prove than the DWAI. Many judges try a first offender with a not-too-high breathalyzer result and decide that the test is not credible beyond a reasonable doubt and convict not of DWI, but of DWAI. This is the best result that most defendants can realistically hope for.

3. Whether or not to Waive a Jury Trial on the Misdemeanor Charges

This is an important decision for the defendant and his counsel. There is no cookie cutter analysis. Each case depends on its own facts, including such factors as the judge’s inclination to find a defendant guilty of DWAI if a jury is waived and whether he is inclined to do so given the BAC test number. Knowledge of the court, the police witnesses, and the usual result under the same fact pattern, are important things to consider in making this crucial decision. If a jury trial is to be waived by the defendant, it must be done in an open court on the record. The defendant must personally execute the waiver in open court, and it must be subscribed by his counsel and the judge.

Selection of Counsel

This is an important decision to be made by the defendant. It is important to retain an attorney who is familiar with DWI cases, has some familiarity with the judge and the jurisdiction in which the case must be tried, but not so familiar so as to become shopworn before the particular judge. The counsel usually charges an upfront fee that must be paid before representation can begin and contemplates a bench trial. If a defendant decides to try the case before a jury, additional fees are likely.

Sentencing

The sentencing minimum and maximum and the fines, penalties and surcharges vary depending on the conviction. A conviction for driving while ability impaired (DWAI) carries with it a minimum fine of $300, a maximum fine of $500, a maximum imprisonment of 15 days, and a license revocation for a period of 90 days.

A conviction of DWI for a first offender carries with it a minimum fine of $500, a maximum fine of $1,000, a maximum imprisonment of one year, and a license revocation for a period of six months.

A felony conviction that is the second DWI conviction in ten years carries with it a minimum fine of $1,000, a maximum fine of $5,000, a maximum imprisonment of four years, and a license revocation for a period of one year.

In addition to the fines, there are surcharges imposed.  In the usual case, the defendant is also convicted of the traffic infraction which carries with it fines and surcharges.

In most cases, a first offender not involved in an accident and convicted of DWAI will not be sentenced to a term of imprisonment but might be required to attend a drunken driver panel, called a Victims Impact Panel, may be sentenced to weekends in jail, may be required to undergo alcohol evaluation counseling in addition to the fines and license suspension. Section 1199 outlines the driver responsibility assessment. If the defendant has a prior history, then the charges may be aggravated charges or felony charges with significantly increased periods of incarceration and significantly increased fines.

Ignition Interlock Device (V & T Law § 1198)

In addition to the fines and charges set at sentencing, a court may, and in some cases, must require as a condition of probation, the installation of an ignition interlock device on the vehicle which the defendant owns or operates. This is required where the conviction is for driving while intoxicated (§ 1192 subd. 2), aggravated driving while intoxicated (§ 1192 subd. 2(a)), or driving with a BAC of .08 or above (§ 1192 subd. 3). The court may impose this condition on its own or apply it to those on probation from earlier conviction (§ 1198(b)).

The device requires the driver to submit a deep lung air sample which is alcohol free to start the car.

The law provides penalties for tampering with the device or circumventing such device (§ 1198 subd. 9(c)).

The cost of installation and maintenance is to be borne by the defendant and is about $75 for installation and $70 per month.

The usual order is for six months or longer.

The device contains a printed warning that tampering with or circumventing the device constitutes a misdemeanor and may subject a person to civil liability.

The New York State Legislature has in its finite wisdom anticipated the possibility that a person who is the subject of an ignition interlock order might persuade a third person to blow into the device and thus allow him to operate the vehicle and has provided that such conduct constitutes a misdemeanor crime for both parties. The better practice would seem to be to allow the third person to blow into the device and then operate the vehicle. Since such activity would not be “for the purpose of providing an operable motor vehicle to the person so restricted,” it would not contravene the statute provisions.

Other Sanctions

Repeat Offenders, that is, persons convicted of DWI after having been previously convicted of violating any of the provisions of Section 1192 (including DWAI – subdivision 1 – Driving While Ability Impaired) or persons who refuse a chemical test after a previous conviction, are liable under V & T Law § 1199 for payment of a driver responsibility assessment fee of $250 per year for three years.

This has been a hypothetical exposition of a typical simple driving while intoxicated case in order to familiarize first offenders with the general procedures which are followed. Our office is available for consultation (716-852-7590).

West Valley Environmental Services
West Valley Nuclear Services (WVNS)
West Valley Demonstration Project
West Valley Reprocessing Plant
Nuclear Fuel Services (NFS)
New York Energy Research and Development Authority (NYSERDA) (title owner)

All the above names refer to a 3345 acre parcel of land in the Town of Ashford, New York, County of Cattaraugus, where a plant was established in the early 1960s for the reprocessing of used nuclear fuel.  The plant was built on 200 acres of land about in the center of the parcel.  The plant area and another 100 acres of storage area was surrounded by an eight foot high security fence.

Time of Operation:  The West Valley Reprocessing Plant was operated from 1966 to  1972.  Although the reprocessing was shut down in March 1972 for improvements to increase capacity, spent light-water waste fuel assemblies were shipped to West Valley between 1973 and 1975 in anticipation of reprocessing.  Management of the facility was transferred to New York State Energy Research and Development Authority (NYSERDA) in 1977.  Return of unreprocessed spent nuclear fuel assemblies occurred in the early 1980s.  Decontamination activities took place in the 1980s and early 1990s, and vitrification began in 1996 and continued until 2001 producing 275 10-foot tall stainless steel canisters of hardened radioactive glass.  In 1999 Vitrification of Expanded Materials Processing began processing unserviceable equipment at the site.

Location:  West Valley is located in Western New York State in the northernmost part of Cattaraugus County adjacent to Cattaraugus Creek, which flows north along the Seneca Nation tribal land and empties into Lake Erie.  It is 35 miles South of Buffalo, New York [see map]
The address is 10282 Rock Springs Road, West Valley, New York.  Rock Springs Road runs off of Route 219 to the east.

Materials Processed:  During reprocessing operations (1966-1972) 660,000 gallons of highly radioactive liquid waste was generated that was stored in an underground waste tank.  Also stored at the site are 170 tons of used nuclear fuel assemblies, 140,000 cubic feet of solid waste, and 2.4 million cubic feet of buried low-level radioactively contaminated waste.  There was a separate designated 15-acre area for the disposal of radioactive waste from commercial generators and another 7-acre landfill for radioactive waste generated from reprocessing.

Workers:  The plant employed a permanent work force of less than 200 persons during operations; however, contract employees had to be brought in once the regular employees reached their quarterly dose limits.  These were estimated in an insurance survey to be about 1,000 temporary laborers each year.

Department of Energy Involvement:  On October 1, 1980, Congress passed the West Valley Demonstration Project Act (WVDPA) which directed the Secretary of Energy to prepare radioactive waste for disposal at West Valley (PL 96-368).  Since at least that date, West Valley workers meet the required relationship with Department of Energy under the EEOICPA.  Prior thereto and back to June 3, 1965, substantial quantities of radioactive liquid waste was received at West Valley from Department of Energy reactors (630 tons from 1966 to 1972).  Thus, it would appear beyond contravention that from as early as 1965, West Valley was a facility that performed operations for the Department of Energy as encompassed by the EEOICPA.   (42 U.S.C. § 7384l (12)).

Exposures:  Instead of making maximum efforts to maintain low levels of exposure consistent with “commonly accepted” radiation protection practice, the radiation control program at West Valley was designed to remove at-risk employees from the site when they approached the maximum allowable exposure limit for each quarter.  Adopting this approach in an “extreme radiological environment” (see below) put the workers at extreme risk.  AEC criticized NFS for this approach in a March 1972 letter.  (Site Profile page 23).

The site profile states:
Users of this site profile should bear in mind the West Valley reprocessing plant was an extreme radiological environment throughout the operations era.  Fuel segmentation operations resulted in substantial quantities of high specific activity airborne particulate matter, resulting in significant operational difficulties associated with the plant ventilation systems and airflow issues.  This, coupled with other unforeseen circumstances involving radioactivity in systems where it was not anticipated, or at unacceptable levels, meant radiological conditions encumbered operation of the facility from the outset.  Routine, contact maintenance activities had to be performed in high dose rate environments.  Dose rates in normally occupied areas were also high, and radiological contamination was substantial plant-wide from maintenance activities and spills (see Attachment A of the Site Profile for details).  High backgrounds compromised the effectiveness of contamination control measurements [1].  Site Profile page 22.

Amendment A of the site profile details that an inspection by the plant housekeeping committee on January 27, 1967, found the plant to be in a “deplorable condition” with regard to radiological exposures just seven months after it began to receive materials.  (paragraph 31.1.1)

The Radiation Protection Program at West Valley defined contamination areas using a “zone” system using an escalating system of four zones requiring more stringent controls as the zone level increased.

Given the “deplorable condition” of the plant and “extreme radiological environment throughout the operations area” (Site Profile page 22), dose reconstruction would seem to be an Alice in Wonderland exercise.  It is anticipated that Special Exposure Cohort status will be applied for and eventually approved to deal with this vexing problem at West Valley.

Materials Processed: Processing began on April 22, 1966.  It was divided into twenty-eight (28) campaigns, the first three of which involved Hanford N Reactor.  The plant used the plutonium-uranium extraction (PUREX) process; one thorium campaign was processed between November 1968 and January 1969.  Six hundred thirty (630) tons of fuel from nine different reactors was processed.  In March 1972 the reprocessing plan was shut down.  This was thought at the time to be temporary.  From 1973 to 1975, seven hundred fifty-six (756) spent light water reactor fuel assemblies were shipped to West Valley and placed in the Storage Pool and of the 3345 acre parcel, 200 acres in about the center compromised the reprocessing facility of a 300-acre portion surrounded by an 8-foot security fence.  The secure area contained the reprocessing facility and the storage area.

Contamination and Soil:  Low level radiation in the soil is leaking into Cattaraugus Creek which empties into Lake Erie some distance north.  Remediation efforts are under way to filter groundwater on site at significant expense.

The cancers already found to be caused by radiation from the West Valley site are likely the tip of the iceberg which will be further revealed over the next decades.

We had kept our involvement as attorneys quiet as the initial monthly checks came in, but one day when our client went into one of the claims centers, he was told that he was probably being investigated for fraud because he had three claim numbers.  He agreed that in light of these comments from a BP representative he should allow us to take care of any further communications with BP.

We were working with an adjuster who was great and appeared to sincerely want to help with the claim.  But about two weeks after that adjuster indicated that the claim had been submitted and that he had all the information he needed, a new adjuster was assigned.  The new adjuster reported that he would need additional information.  He wanted a schedule E from our clients’ tax return.  Schedule E is for supplemental income.  This client’s fishing income is not supplemental income but his primary source of income and no schedule E was included in his tax return.  We provided tax returns for 2009, an individual return and a business return for our client’s S corporation.  We also provided his 2008 individual tax return as well as bank statements for his personal account and for his business account for 2009.

Another adjuster was assigned soon after these materials were received by BP.  This adjuster wanted additional information in the form of revenue information for 2010.  We indicated that our client did not have revenue information for 2010 as the 2010 season did not start for him until May 2010 and by that time the areas where he fished were closed by the spill.  Several days later, we contacted that adjuster who indicated that the claim had been transferred back to the regular loss unit and a new adjuster had been assigned.  We contacted the new adjuster who indicated he needed our client’s driver’s license and also wanted trip tickets to corroborate the information on the tax return.  He also said that he would send our client a form letter indicating that BP needed further information to process his claim and a check for $1,000 to manage incidental expenses in the meantime.  Our client forwarded copies of his driver’s license and certain trip tickets to us and we, in turn, forwarded them to BP.

It can be frustrating because BP refuses to communicate by email so all materials must be forwarded by fax or mail.  The mail is then scanned by BP and then becomes available to adjusters on BP’s computer system.

One question raised by the claim history described above is why does BP constantly require additional information.  The answer can be found in the regulations propounded under the Oil Pollution Act statute and the interpretations of those regulations and that statute contained in cases decided by federal judges.  The statute requires that prior to bringing an action in federal court under the Oil Pollution Act it is necessary to make a claim with the entity responsible for the spill.  There is no specific form that the claim must be prepared upon, a letter is sufficient.  But the claim must contain information sufficient to support the claim.  Tax returns, bank statements, trip tickets and any other documentary proof provide the necessary support for a successful claim.  Once that support has been provided to the responsible party, the time limit for the responsible party to respond begins to run.  The responsible party, in this case BP, is required to respond to the claim within 90 days.  If after the 90 days has run, BP has denied the claim, has not paid the claim for some other reason or the claimant is not satisfied with any payment BP has made, the claimant can initiate an action or lawsuit in federal court.

What claimants have been running into is BP’s attempt to prevent the 90 day time period from commencing.  If BP can claim that they do not have enough information to analyze the claim, they will take the position that the claim has not been properly “presented” and therefore the 90 day time period has not begun to run.  Claimants generally should make sure that they can prove that they have provided BP with more than sufficient documentation to support their claim.  Once that documentation has been provided to BP and the 90 day period has run, claimants will be free to commence an action in federal court to recovery their losses from BP.

Cantilevered Laptop Desk with Solid Brass Base

When I set out to build my desk, I was concerned primarily with function, utility. If I could simultaneously keep numerous books open and accessible, I could focus on the content and not the medium. I was not concerned about how the desk looked but how it performed. At the same time, even in the beginning I wanted to use quality materials. Loose fitting pipes were replaced by press fit bushings through which precision shafts were pushed and metal pipe was replaced by stainless steel and eventually solid aluminum square bar. The base was initially rusted metal plate, then rusted solid steel, finished steel, plated steel and finally solid brass square bar. The base remains too heavy to be manipulated by someone who is not physically fit and at least marginally enthusiastic. The main shaft made a similar transition from painted then varnished steel pipe to solid steel, and then to turned, ground and polished stainless, brass, copper and bronze. If the project is worth my time, I tend to believe it warrants the best materials. The copper develops the same patina of an old penny. Lacquer can prevent rusting on bare metal but the copper and brass tend to develop a timeless, weathered quality that does not interfere with its function. I like to match the brass and bronze with mahogany as I am a part time sailor and these materials elicit that familiar wood boat look and feel. While I have come to enjoy the textures and character of the materials function and utility have always been the focus.

Practicality has been shunned from the beginning. A 60 or 70 pound base was never easy to manage and remains a challenge. I have always looked to commercial and industrial strength and durability which has generally been accompanied by the constant refrain from machinists and material men: “Do you know what that costs?” While I cannot say categorically that no expense was spared, I am often accused of looking for something a little more expensive. I am also oddly comforted by the fact that while a piece of brass costs $230, you can take it to the local scrap metal dealer and get $150 for it on a good day.  While I do not expect those who use my desks to trade them in at the scrap yard, a certain portion of the investment involved is reusable material in both the modern and the old fashioned sense. Brass, copper and bronze have been recycled since long before it was fashionable and on a basis of pure utility unencumbered by thoughts of the greater good.

If there has been a political bent to the activity, it is a reaction to everything made in China and other developing countries.  It is not that there is anything wrong with making things in China.  In fact, I hope some day to make certain pieces of my desk in China and benefit from the lower cost of labor.  But the tendency to sacrifice quality in the interest of cost, or even to identify efficiency and reduce the amount of material to that necessary for satisfactory performance.  The desk is an attempt to recreate that quality of function, that feeling of something that works much better than necessary.