2nd honker
Feb. 17, 2016
News Picks from NYSDA Staff
News Picks
Updated NHTSA Field Sobriety Testing Manual Released . The National Highway Traffic and Safety Administration's "DWI Detection and Standardized Field Sobriety Testing (SFST), Participant Manual" was revised in October 2015. The preface to the revised manual notes:
The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFST's will not always be administered under ideal conditions in the field, because such conditions do not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some effect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.
A National College for DUI Defense blog post about the update noted:
Some of the most helpful sections are the Vehicle in Motion and Personal Observation. Both of these sections will give the practitioner a fountain of information on all the things the officer didn't see, and all the reasons why your client was sober. The Pre-Arrest Screening ... also sets forth the standards of proper administration of the Field Sobriety Tests. And in the 2015 SFST Manual they placed back in the language we all loved to beat them with.
It is necessary to emphasize this validation applies only when:
* The tests are administered in the prescribed, standardized manner,
* The standardization clues are used to assess the suspect's performance,
* The standardization criteria are employed to interpret that performance.
If any one of the SFST elements is changed, the validity may be compromised.
Attorneys who handle vehicle and traffic law cases should also be aware of a recent proposal by the Department of Motor Vehicles (DMV) to amend 15 NYCRR 127.6(b) to provide that the standard of proof at DMV safety hearings, including chemical test refusals, is the preponderance of the evidence. According to the notice in the January 27, 2016 issue of the State Register (beginning on p. 33), while the existing rule "provides that decisions at safety hearings may be based upon 'substantial evidence,' the Department has consistently instructed and trained its safety hearing officers to make such determinations based upon a preponderance of the evidence." The proposal was submitted as a consensus rule, which means that if no comments objecting to the change are received by Mar. 12, 2016, it will be adopted.
OASAS Treatment Bed Availability Dashboard Launched. The New York State Office of Alcoholism and Substance Abuse Services (OASAS) has launched a Bed Availability Dashboard application, which, according to a February 3 press release , "collects bed availability from State-certified alcohol and substance use disorder treatment providers daily and makes it available in real-time on the agency's website." Users can search by location (county, city, or zip code), organization name, gender (male, female, or transgender), and age group (adult or adolescent). The application is expected to include outpatient services soon.
State Bar Adopts Report and Recommendations on Re-Entry. The Special Committee on Re-entry of the New York State Bar Association (NYSBA) has released a Report and Recommendations , which was adopted by the NYSBA House of Delegates at the end of January. The report covers a wide array of issues related to re-entry: diversion, programs in anticipation of re-entry, job training and employment, education, housing, medical and mental health, and juveniles. Some of its recommendations include: expanding Ban the Box statutes statewide and applying them to public and private employers and college admission applications; expanding in-facility education programs and restoring Tuition Assistance Program eligibility during incarceration; implementing child support payment reform; and adopting and implementing the notice and relief provisions of the Uniform Collateral Consequences of Conviction Act. A summary of the report and recommendations, written by Special Committee member Alan Rosenthal (Center for Community Alternatives), is posted on the Collateral Consequences Resource Center website.
DSS Failure to Make Diligent Efforts Prompts Reversal of TPR. In an appeal from an order terminating the parental rights of a father based on a finding of permanent neglect ( see  Social Services Law 384-b[7][a]), the Second Department held that the family court erred in concluding that DSS had met its initial burden of demonstrating that it exercised diligent efforts to "strengthen the parental relationship between the father and his children ...." Matter of Gabriel B.S.-P. , 2016 NY Slip Op 00645 (2nd Dept 2/3/2016). DSS removed the children from the parents' home based on the mother's benzodiazepine use and brought Family Court Act article 10 proceedings against the mother. Although the father was not named as a respondent, the family court did issue an order of protection against him requiring that his visits with his children be supervised. Despite evidence that those visits were positive and that DSS caseworkers encouraged the father to pursue unsupervised visits, DSS did not support a change in visitation and the family court dismissed the father's petitions for unsupervised visitation without a hearing. After the mother surrendered her parental rights, DSS sought to terminate the father's parental rights based on permanent neglect.
In reviewing the issue of diligent efforts, the Second Department noted that DSS focused on the mother's relationship with the children and while DSS did schedule supervised visits and notified the father of permanency hearings and service plan reviews, "it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings ...." The father also met all of DSS's requirements, including attending a parenting class and marriage counseling. The Appellate Division denied the termination petitions and dismissed the proceedings.
After Third Department Reversal of TPR, DSS Blames Failure to Make Reasonable Efforts on Family Court. Based on evidentiary errors, the Third Department originally reversed a termination of the mother's parental rights that was based on her mental illness. Matter of Dakota F. , 110 AD3d 1151 (3rd Dept) lv den 22 NY3d 1015 (2013). After the reversal, the permanency goals were changed to "return to parent," but following a new permanency hearing, the family court changed the permanency goal to adoption. By then, DSS had filed permanent neglect proceedings seeking termination, which are still pending in family court. In an appeal from the orders modifying the permanency plans, the Third Department found that "the record before us lacks a sound and substantial basis to support Family Court's determination to change the permanency goal to adoption." Matter of Desirea F. , 2016 NY Slip Op 00719 (3rd Dept 2/4/2016).
At the permanency hearing, the family court failed to engage "in any 'age-appropriate consultation' with the subject children" and the hearing was "lacking in both form and substance." The Third Department noted that, "despite our prior decision reversing the order terminating respondent's parental rights ..., petitioner's caseworker testified that respondent was afforded no contact with the subject children in the multiple months that passed before the permanency goal was changed from return to parent to adoption." Tellingly, "[t]he caseworker stated that, in following the direction of Family Court, no real efforts had been made to further the goal of return to parent." (Footnote omitted.) The caseworker had no knowledge of the mother's efforts to ameliorate the conditions that led to the removal. Further, the "Family Court relied upon 'the full history of the case' and considered a permanency hearing report that contained irrelevant information about a child who was not the proper subject of the proceedings." Because a significant amount of time elapsed since the family court changed the permanency goal, the Appellate Division again remitted to the family court for further proceedings. "In so doing, we note our concern with Family Court's decision to grant the motion by respondent's attorney to be relieved as counsel and respondent proceeding pro se ...."
Association News
30th Annual Metropolitan New York Trainer . NYSDA's 30th Annual Metropolitan New York Trainer will be held on Saturday, Mar.19, 2016. Location: Tishman Auditorium at NYU Law School (40 Washington Square South). Registration deadline: Friday, March 11.
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