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If you are reading this then you, or someone close to you, has probably been arrested for DWI or DUI. If so, you have to quickly mobilize your defense to ensure that you take advantage of all of the rights and privileges that you are entitled to as a criminal defendant. Remember, the prosecution has the burden of establishing that you broke the law “beyond a reasonable doubt”. Getting an attorney involved on your behalf as early as possible is the best thing you can do to help yourself.
You are probably upset, confused and maybe angry at the way you were treated. You may also be innocent! Most people arrested for DWI are first time offenders and have never dealt with the criminal justice system. Being treated like a criminal is not pleasant and you will soon discover that, to the District Attorney’s office, you are just another case to prosecute. The process is impersonal and cares little about your many good qualities or that you may be an outstanding citizen. It is a burden on the defense attorney to get the prosecutor to consider the unique facts of your case. The prosecution wants a conviction … period!
The typical case starts with an officer on patrol observing a traffic infraction or erratic driving. Maybe just a broken taillight. That gives the officer probable cause to stop your vehicle and talk to you. Once he gets close, he may think he smells alcohol or notices glassy, blood shot eyes, slurred speech or lack of motor coordination. Believe it or not, once a valid stop is made, New York law allows the officer to administer DWI tests without any further justification at all. A valid stop is all the police need. That is one of the reasons why it is critical to have your case reviewed by an attorney. If the stop is no good, then the whole prosecution may fail.
If you fail the field sobriety tests or have an elevated blood alcohol reading on a preliminary field alcohol breath sensor, you will likely be riding to the precinct cuffed in the back of a patrol car. Once there, a more reliable blood alcohol reading will be taken. You can then be charged with DWI for either having a blood alcohol level exceeding the legal limit or based on the officer’s evaluation that you are intoxicated or operated the vehicle while your ability was impaired. You have the option of refusing the breath test, but that carries its own set of consequences. You will most likely be released without bail and given an appearance ticket to come to court in two weeks or so. But, you could be held in custody until you see a judge who may or may not set bail.
This is when you typically hire an attorney to defend you. The lawyer will review the facts of your case and any papers that you were given, determine whether there are any obvious defenses that might apply and arrange to appear with you at your upcoming arraignment.
At the arraignment you will probably have your driving privileges suspended while the case is pending. You may be entitled to a “hardship” exception that will let you drive to work. But that requires a hearing. You need to have that hearing right away or you may face the loss of your job. Many people charged with DWI are unfortunately forced to rely on public transportation or the generosity of family and friends to get around. Even if your license is suspended, you may later be eligible to apply for a Conditional License. The Conditional License will let you drive to a number of places, including work.
At arraignment you will also be given the opportunity to hear the charges against you and a summary of your rights. Your lawyer will formally notify the court that you are represented and you will in most cases enter a plea, almost always “not guilty”. The judge may then, as a condition of your release, require you to cooperate with an independent agency in an evaluation of any abuse or dependency on alcohol or drugs that may or may not exist.
From this point your case may take any number of different twists and turns. There may be adjournments, motions, hearings or other proceedings. If you refused to take the breathalyzer test, then a “Refusal Hearing” will be scheduled before a Department of Motor Vehicles Administrative Law Judge. During this time your lawyer will be taking every opportunity to attack the prosecution’s case, poking as many holes in it as possible to set the stage for a successful outcome at trial. A secondary aim is to force the prosecution to concede that its case against you has weaknesses or maybe no merit at all.
At some point there are almost always plea bargaining negotiations and an offer made to you. Typically, the plea offered is based on guidelines mandated by the District Attorney for that County and the local prosecutor cannot offer you a different outcome even if the prosecutor thinks that one is warranted in your case. One of your lawyer’s jobs is to try to force the prosecutor to pay you some special attention. Your lawyer must show that your case is so unique or lacking in merit that the local prosecutor will seek the permission of a supervisor to offer you a more lenient outcome.
If you choose to reject the plea offers made to you and once pretrial proceedings are concluded, then your case will be scheduled for trial. This may happen before a jury, or in some cases before a judge sitting without a jury. At the trial your lawyer should test every aspect of the prosecution’s case, including the reliability of the breathalyzer test results. This is done primarily through cross examination. Your lawyer may also choose to produce witnesses in your defense and you, in consultation with your attorney, may elect to testify on your own behalf.
A trial is an arduous experience, but it is the only way to be found not guilty if the charges against you are not dropped altogether. If you go to trial, then all prior plea offers made to you are usually off the table and, if found guilty, you are entirely at the mercy of the judge at the time of sentencing. If the judge is considering a period of probation or any jail time, then an investigation of you will be conducted by the Probation Department. It will draft a report and make recommendations about your sentencing to the judge. The judge, however, does not have to accept Probation’s recommendation and some judges are harsher than others.
Sentences may vary considerably. There are fines and surcharges, the conditional discharge, which basically means be good for a year, supervision by probation and incarceration with or without probation afterwards. There are also non-criminal consequences, such as a Department of Motor Vehicle assessment and increased automobile insurance rates. In addition to any fines and consequences to your driving privileges, you are usually required to attend a Mothers Against Drunk Driving Victim Impact Panel to hear firsthand from people who have suffered from the worse kinds of tragedies associated with impaired driving. You will also probably want to attend New York’s Drinking Driver Program in the pursuit of a Conditional License after sentencing.
The main thing you need to do is get that lawyer, and get one fast! My office is experienced in DWI matters and can aggressively advocate on your behalf throughout the process. I can help you try to preserve your driving privileges or get them restored as soon as possible. I can review the stop to determine whether or not the whole case against you should be thrown out. I would welcome the opportunity to discuss your circumstances with you. Please call for a free telephone consultation.
Whatever you do, don’t make the following mistakes:
- Going to court without a lawyer (If you must, then ask the judge for time to get a lawyer).
- Making incriminating statements.
- Failing to show up in court.
- Failing to take very seriously the charges against you. They may follow you for life!
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