Defending Multiple DWI Convictions

A second DWI charge within 10 years could be prosecuted as a felony.  This felony prosecution is discretionary unlike a predicate felony — second felony offender, that the prosecution must pursue.

Both predicate felony offender status and felony DWI invlove a conviction within 10 years. 

Predicate Felony

In calculating the time for a predicate felony, the law states that “sentencemust have been imposed more than 10 years before the commission of the felony” PL 70.06(1)(b)(iv). 

Felony DWI Law

The felony DWI statute refers to committing the new offense “after having been convicted of” the predicate crime.  VTL 1193(1)(c)(i).

This is an important distinction.  It is very important in either a DWI felony sitiuation or a Felony under the Penal Law to know this difference.

A “conviction” is defined in the Criminal Procedure Law (CPL) as “the entry of a plea of guilty to, or a verdict of guilty upon an accusatory instrument” CPL 1.20(13).  A judgment is the conviction AND the sentence imposed.  Sometimes in criminal court the conviction will be months before the sentence.  Usually this occurs when the Court orders a pre-sentence report from the Department of Probation.

Felony DWI Example

Where a motorist was sentencedon the prior DWI and occurred within the 10 year limit, but the motorist plead guilty or was convicted at trial more than10 years ago, felony DWI status should not apply.  Therefore, where sentencing is adjourned this time delay should not be used at a later point to increase a seconf felony DWI to a felony.

Misdemeanor DWI

In any DWI offense this rule will apply.  For example, two prior DWAIs within 10 years raises the current DWAI to a Misdemeanor from a violation.

Defense of a Felony DWI

In order to present the best criminal defense a criminal defense attorney in Westchester, Orange, Rockland, Putnam counties or elsewhere need to be aware of the date of arrest, conviction and sentence in order to properly defend a DWI felony charge.

During a trial the government needs to prove each and every element of a crime.  In cases such as petit larceny, assault, weapons possession, driving with a suspended license (AUO) (511(1)(a)) and other similar crimes a lab report is not needed.  But in cases such as DWI, DWAI, DWAI drugs and drug cases such as criminal possession of a controlled substance and criminal sale of a controlled substance a lab report will be  needed to be introduced at sometime during the trial.

District Attorneys have relied on certified records to introduce certain lab reports in DWI, DWAI, DWAI drugs and other drug cases instead of having the actual lab analyst testify.  This seems to be changing with the most recent US Supreme Court case as outlined below.

Lab Reports at Trial in DWI, DWAI, DWAI Drug  and Drug Cases

At trial for an offense involving any Laboratory Report (usually a drug, DWI or gun charge case) the confrontation clause of the sixth amendment requires a criminal accused to be confronted with the testimony of lab analysts.

The United States Supreme Court in Melendez-Diaz v Massachusetts, 129 S Ct 2527, held that a lab analyst’s certificate is testimonial and can not be admitted unless the analyst was unavailable to testify at trial and the accused had a prior opportunity to cross-examine the analyst.

DWI Blood/Breath Test Lab Reports

In Nassau County after a DWI trial the court sustained the defendant’s objection to the admission of the calibration log of the breathalyzer machine used to test his blood alcohol level as a certified business record and required the prosecution to present live testimony from the lab technicians who preformed the calibration.

The Best Criminal Defense

The best criminal defense is one that holds the government to their burden on each and every element of the crime.  This is especially true of DWI, DWAI, DWAI Drug and other Controlled Substance cases where a lab report is necessary.  In Westchester, Rockland, Bronx, Orange, Putnam and Dutchess counties the government will have their own report usually from the County Department of Lab and Research.  These lab reports must be attacked for their accuracy.  This additional requirement that the government bring the actual analyst into court is helpful to the experienced criminal defense attorney and the accused since it opens the door to in depth cross examination.

White Plains City Court Criminal Defense 

In the City Court of White Plains there has been an increase use by the department of labs and research in Westchester County of “preliminary” lab reports to support DWI, DWAI, DWAI Drug and other drug charges.  These lab reports are the very reports that need to be scrutinized for their accuracy and demanding the actual lab analyst to testify will help any criminal defense.

Southeast DWI Criminal Defense

Likewise, for any criminal defense for a DWI, DWAI, DWAI drug charge in busy DWI courts such as the Town of Southeast in Putnam County (Brewster).  These lab reports must be scrutinized as they usually are the prosecutions strongest form of evidence.

In New York State if a motorist is involved in an automobile accident and does not report that accident it can open the motorist up to criminal prosecution.  There are two very different types of charges under the Vehicle and Traffic Law for leaving the scene of an accident without reporting.  As white plains felony charges lawyers and traffic violations attorneys we want you to know the different classes of offenses and potential sentences for each.

Leaving the scene of a PROPERTY damage accident without reporting

VTL 600(1) provides that ” Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property … due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage occurred, stop, exhibit his or her license and insurance identification card for such vehicle, … and give his or her name, residence, including street and number, insurance carrier … and license number to the party sustaining damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer.”

A violation of VTL 600(1)(a) is a traffic infraction punishable by :

1. A fine of up to $250;

2. Up to 15 days in jail; or

3. Both

Leaving the scene of a PERSONAL INJURY accident without reporting

VTL 600(2)(a)  “Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification … to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.”

The level of the offense and the punishment depends upon if the mororist has ever committed this crime in the past and also the level of injury or death of the party.  Leaving the scene of a Personal Injury Accident is a CRIME and ranges from a class “B” misdemeanor to a class “D” felony.  The Sentences for Misdemeanors and felony range from fines, probation to jail.

Leaving the scene of a PERSONAL INJURY accident is a fingerprintable offense and a crime.  Any conviction will result in a license revocation and the motorist will not be permitted to obtain a conditional license.

In any criminal defense its important to know the classes of misdemeanors and the types of misdemeanor crimes including felonies.  Here in this case leaving the scene of a property damage accident is a noncriminal offense while leaving the scene of a personal injury accident is a crime.

If you have any questions how these charges are defended or how they relate to other charges such as driving while intoxicated (DWI) or driving while ability impaired (DWAI) contact my office for a free consultation.

Traffic Tickets and the Best Defense

A common mistake is to look at a traffic ticket in New York and think, all is lost, there can be no possible defense.  Usually there are several defenses to a traffic ticket and as any good criminal defense attorney will tell you it all starts with the traffic ticket itself.

In New York State traffic tickets are written for any crime or violation under the New York State Vehicle and Traffic Law (VTL).  Tickets can be written for moving violations such as speeding, non-moving violations, equipment violations even DWI and DWAI Drugs.  The traffic ticket is the basis for a prosecution and it the starting point for the defense to the charge.

1. The Ticket (Simplified Traffic Information)   

The Ticket is usually a half page document, yellow in color, that a police officer would hand you on the side of the road.  A State Trooper may provide you with a full page ticket (white in color) but usually its the front and the back of the “yellow” ticket on one page.  The front of the ticket outlines the charge while the back has instructions regarding how to respond.  The ticket is also known as a Simplified Traffic Information.

The sufficiency of a simplified traffic information is governed by the criminal procedure law.  Because the traffic ticket is the local court accusatory instrument that provides the least amount of information. the recipient is entitled as a matter of right, upon a timely request, to a supporting deposition.

2. The Supporting Deposition

The supporting deposition is a document that explains the charge in greater detail.  The supporting deposition must be completed by the police officer and must allege all of the elements of the offense.  The statute provides that the allegations may be made upon personal knowledge or upon information and belief providing reasonable cause to believe that the driver committed the offense charged. 

3. Probable Cause

The ticket and supporting deposition together must provide probable cause to believe that the traffic offense in questions was committed.  A supporting deposition that contains boxes checked off by the police officer is sufficient.

4. Time to request a Supporting Deposition from the Police

In some cases a driver will receive a supporting deposition from the police with the traffic ticket, usually issued by the State Police, but in most instances the police officer will only provide a traffic ticket without a supporting deposition.

The request a supporting deposition must be made within 30 days of the court appearance noted on the ticket.  Where the charge is a misdemeanor such as DWI or reckless driving the driver may request a deposition beyond the 30 day period up to 90 days with permission of the court.

5.  The Plea 

Always plea NOT GUILTY to a traffic ticket.  In most cases an experienced criminal defense lawyer can get the charge dismissed or reduced.  A guilty plea is the same as if you went to trial and were found guilty by the judge or jury.  Your best option is to contact one of our experienced criminal defense lawyers to aggressively attack the ticket and its contents even before appearing in Court.

A plea can be entered in court on the date at the bottom of the ticket or by a signed statement on the ticket by mail.  When pleading not guilty by mail, the plea must be sent by registered or certified or first-class mail and within 48 hours of receiving the ticket .  A driver may plea not guilty by mail and request a supporting deposition.  FAILURE to act in a timely matter will cause a loss of the right to the supporting deposition.

6.  Service of the Supporting Deposition

The deposition must be provided to the driver within 30 days of the court’s receipt of the request for it OR 5 days before trial whichever comes first.

7.  Failure to provide a Supporting Deposition

When the court orders the filing of a supporting deposition and the police officer fails to comply in a timely manner the ticket is rendered insufficient on its face and may result in a dismissal. 

The above is one of the basic and best defenses to traffic tickets.  Although there are many defenses this requirment always remains at the core.  It is important to have a traffic ticket attorney since the police officer may try to submit a late supporting deposition or other method to prevent the case from being dismissed.  Our traffic ticket attorneys are prepared to protect your rights and provide you with the best possible criminal defense either in a traffic ticket case, DWI case or other criminal matter.

If you have questions regarding your criminal matter or traffic ticket case call one of our attorneys for a free consultation. 

The best defense is a strong understanding of the criminal procedure law and how each court operates in New York State.

BAC READING OF .08%

At an arraignment on a Driving While Intoxicated (DWI) charge the Court is required to suspend your New York State driver’s license or privilege to drive in New York State if a Blood Alcohol Contant (BAC) reading is at or above the legal limit of .08%.

There are certain findings a Court must make before they suspend you license pending prosecution but that will be addressed in another blog post.   However in sum, if the Court finds the paperwork sufficient that your BAC was .08% or greater they will suspend.

NEW YORK PROMPT SUSPENSION LAW

The New York Prompt Suspension law is the law which suspends your license at arraignment.  Many times an accused will appear at arraignment without an attorney and be told to surrender their license due to this law.  Almost everyone hands over their license without a full understanding of what just happened and at that moment realize they need an attorney.

Under the Prompt Suspension Law you will not be able to drive for at least 30 days.  In most cases the accused relys on their driver’s license and the consequences of not having a license to drive are devastating.  The Court has recognized the impact of not having a driver’s license for at least 30 days and has allowed the Courts to grant a “Hardship Privilege” to allow the accused to drive under certain curcimstances until the DWI paperwork is processed by DMV and the accused can apply for a Conditional License. Usually this takes 30 days.

THE HARDSHIP PRIVILEGE

VTL 1193(2)(e)(7) governs the Hardship Privilege.  If the Court finds that the prompt suspension of the accused driver’s license will result in a “extreme hardship” the court must issue such suspension but may grant a Hardship Privilege to allow the accused to drive under certain circumstances.  The accused driver’s license is still suspended but a document is issued to the accused from the Court at arraignment allowing the accused to drive for a limited purpose.

What is an Extreme Hardship?

An Extreme Hardship is an inability to find alternative means of travel to or from the licensee’s employment, school or medical treatment.

In order for the accused to prove this Extreme Hardship they are entitled to a hearing within 3 days of the arraignment.  This fact is rarely told to an accused without an attorney and is a vital right to protect ones driver’s license.

The accused must present proof at the Hardship Hearing that there is no alternative means of travel such as family, friends, co-workers, taxis, buses or trains.  The accused must also have some evidence to corroborate that without a license it will be an Extreme Hardship in that they may lose their job, fail school or miss medical appointments.  A witness to corroborate these facts is usually necessaryat the hearing.  The District Attorney will have an opportunity to be heard on this issue and cross examine any witnesses including the accused.

THE PURPOSE OF A HARDSHIP LICENSE

The Hardship License is for a limited purpose.  The license will not allow an accused to drive as part of their employment (taxi driver, traveling salesman) or travel at inconsistent hours.  Also, a Hardship License can not be used to operate a commercial vehicle.

It is always a good idea to contact a DWI lawyer immediately after the arrest.  In some cases I have had my clients call me at the police station.  At Riebling, Proto & Sachs, LLP our DWI lawyers are always available to answer your questions and prepare you for every court appearance.  We offer a Free Consultation and can appear in Court on a moments notice.

The best DWI defense is to be prepared at every stage of the process.  Our attorneys protect your rights in every type of DWI case and will be happy to meet with you.  If you have any questions or concerns please feel free to contact us.