by The Law Office of Frank Ciardi | Dec 20, 2019 | Criminal Defense
An individual’s first DWI offense can have a significant impact on criminal history, finances and employment opportunities. This charge should not be taken lightly just because it’s a first offense. It’s important to act quickly and seek help from trusted Rochester DWI lawyers and alleviate any chance at jail time.
In DWI cases, the state prefers probation over doing jail time. Most first-time offenders admit they have at least one drink a week. A significant number of these people even show signs of alcohol dependency. Alcohol counseling is often a condition of probation, but it can never be a condition of jail time.
Therefore, probation is usually in the defendant’s and the state’s best interest. Some form of probation may be almost inevitable, the exact nature of the DWI punishment for first-time offenders largely depends on the skill level of a Rochester DWI lawyer.
What are Some Direct Consequences of a First-Time DWI?
Most first-time offenders face simple DWI charges. If the defendant had a BAC level between .08 and .17, the maximum direct penalties are:
- One year in jail,
- $1,000 fine, and
- Six-month drivers’ license revocation.
If the defendant had a BAC of .18 or above, the maximum license revocation period increases to one year.
The judge normally probates the jail time for about a year. During that time, the defendant must comply with all the terms and conditions imposed by the Monroe County judge and the probation department. Some of these conditions include:
- Reporting at least monthly to a probation officer,
- Working or attending school full time,
- Avoiding further trouble with the law,
- Remaining in the county,
- Performing community service, and
- Completing required classes, such as an alcohol evaluation and DWI victim impact panel.
Some courts probate the fine as well. A few courts require all the fines, plus all court costs, to be paid upfront.
Partial probation of the drivers’ license revocation may be available. Typically, if defendants install Ignition Interlock Devices in their vehicles, they can continue to drive, at least on a limited basis. IIDs are essentially portable Breathalyzers which are attached to the ignition. If the driver’s BAC is above a certain level, usually .04, the vehicle will not start.
What About the Indirect Consequences?
In terms of indirect consequences, the good news is that DWI is not a crime of moral turpitude. So, its effect on immigration and other matters may be limited. But that’s about the only good news.
Increased auto insurance rates are probably the most serious indirect consequence. Persons with DWI convictions must obtain high-risk insurance and keep it for at least three years. That could cause insurance premiums to double or triple.
Furthermore, DWI is a significant stain on an employment record. Frequently, insurance companies will not cover cab drivers, delivery drivers, or other commercial operators who have DWI convictions. On a related note, even if the jurisdiction has a ban-the-box law, a DWI conviction could be a significant employment barrier. Many employers believe these people make poor decisions and are generally unreliable.
How can a Rochester DWI Lawyer Reduce These Consequences?
Frequently, the state’s evidence in a DWI case is not particularly strong. For example, there may be a lack of evidence on a key point, such as operating the vehicle in a parking lot or other private place, as opposed to a public place. Or, the state might have a hard time establishing alcohol intoxication.
In these cases, a plea to DWAI (Driving While Alcohol Impaired) might be an option. Like DWI, DWAI is a misdemeanor. However, direct consequences are not quite as severe. Furthermore, the indirect consequences, specifically in terms of higher insurance, might not be as severe either.
Contact a Dedicated Lawyer
The Constitution gives you the right to pretrial release, and a lawyer must normally enforce that right. For a free consultation with an experienced Rochester DWI lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
by The Law Office of Frank Ciardi | Dec 16, 2019 | Criminal Defense
The jury trial is the pinnacle of all criminal rights in Monroe County. For the most part, these criminal defendant rights are uniquely American. 90 percent of the world’s jury trials take place in the United States.
If the jury trial is at the top of the pyramid, the following Constitutional rights form the base of the pyramid. Without these rights, jury trials would be unfair and meaningless. Additionally, unless an assertive Rochester criminal defense attorney stands up for these rights, they are just ink on paper. Aggressive Monroe County prosecutors might run right over criminal rights if they thought they could get away with it.
The Eighth Amendment requires reasonable bail in all criminal cases. Cash bail amounts are usually based on the severity of the offense, the possibility of flight, the defendant’s ability to pay, and other factors. Because so many New York defendants are unable to afford any bail amount, Monroe County offers expanded pretrial release in many cases.
Before they may enter private property, like a dwelling or a vehicle, officers must generally have search warrants based on probable cause. If they do not have warrants, a narrow search warrant exception must apply. Some common ones include:
- Consent: Owners, or apparent owners, may give police officers permission to search their property. An apparent owner is someone with apparent ownership authority, like a roommate whose name is not on the lease.
- Exigent Circumstances: If officers believe someone is in danger, they may enter the property and sweep through it to make sure everyone is okay. Officers commonly rely on this exception when they respond to disturbance calls and want to enter a place.
- Pat Down: Your clothes are your private property. Officers may intrude on this property if they suspect you have a weapon. This suspicion must be based on specific, articulable facts, and not just a hunch.
These same rules apply with regard to seized evidence. If officers did not have a warrant, an exception must apply. If either the search or seizure was unreasonable (no warrant and no exception), any evidence may be inadmissible in court, under the fruit of the poisonous tree doctrine.
One of the most important criminal defendant rights is also one of the broadest ones. This Fifth Amendment right is not limited to oral court testimony or answering investigators’ questions. Defendants also generally have the right to refuse to perform DUI field sobriety tests, appear in lineups, or perform any other acts. Typically, these refusals are not admissible in court. During closing arguments, a Monroe County prosecutor cannot tell jurors the defendant must be hiding something because s/he refused to testify. There are some limits. For example, if a defendant refuses to provide a chemical sample in a DUI, that refusal may be admissible in court.
Criminal Defendant Rights and Legal Representation
Defendants do not just have the right to an attorney. They have the right to a competent attorney. This right sometimes comes up in forfeiture situations. The state cannot freeze the defendant’s assets if such action makes it impossible for the defendant to hire counsel of his/her choice. If the defendant is indigent, either a court-appointed attorney or public defender must be available.
In most cases, prosecutors cannot keep placing the defendant on trial until they get the result they want. So, if a jury acquits a defendant of drug trafficking charges, the state usually cannot retry the defendant for drug possession. The separate sovereignties exception, which a divided Supreme Court recently reaffirmed, is the biggest exception. It often applies in drug cases or other offenses which are crimes under both federal and state law.
The confrontation clause often comes up in sex crime cases. Typically, defense attorneys have the right to cross-examine accusers. This right is especially important in sex crime cases and other prosecutions that involve lay witnesses. It is easier to undermine this testimony and so create reasonable doubt.
Do not overlook this important right. Generally, we all behave better if we think someone may be watching. That’s especially true in the criminal justice system. Judges and prosecutors are more likely to respect criminal rights if the trial is open to the public. This right is sometimes an issue in the aforementioned sex crimes cases, especially if the alleged victim was a child.
Connect with an Experienced Lawyer
Criminal defendants have important rights. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
by The Law Office of Frank Ciardi | Dec 2, 2019 | Criminal Defense
Facebook, Twitter, and other social media platforms are a good way to keep in touch with friends and family. But there is a potential dark side as well. Not many people realize that social media and criminal defense affect each other. A very long list of individuals hit like or send without thinking things through, and they paid the price later.
Did you know that social media also has criminal defense consequences? Photographs and posts give investigators a wealth of information. And, thanks to the Stored Communications Act, law enforcement officers may not need a warrant or probable cause to access such information. The SCA requires some social media companies to release communications and even “user information” to law enforcement groups and other third parties.
An experienced Rochester criminal defense lawyer must be prepared to deal with social media in court. Posts and photographs could make or break a case.
Some Social Media and Criminal Defense Issues
Social media is especially important in certain kinds of cases. Hate crime assaults are a good example. Frequently, prosecutors look through social media accounts looking for recent posts or likes which indicate hostility against a certain group of people. Specific types of social media in these cases include:
- Pictures: Tagged photos of a defendant near a crime scene may be used as evidence in court. The same thing applies to pictures of the defendant in a bar immediately prior to a DWI arrest.
- Location: CLSI, or cell-site location information, is one of the few exceptions to the social media and criminal defense warrantless search rule. Cell phone towers tag phones at certain locations. In 2018’s Carpenter v. United States, investigators tagged the defendant at almost 13,000 locations over a three-month period. A sharply divided Supreme Court ruled that officers must obtain search warrants before they may access such data.
- Posts: Both liked posts and original posts may provide evidence of motive and intent in criminal cases. Posts may also provide evidence of premeditation in violent criminal cases.
If there are incriminating items on your social media account, do not delete them. Investigators can still find them. Furthermore, deleting posts or pictures makes people look guilty and could also be considered tampering with evidence.
Authenticating Social Media in Court
As mentioned above, embarrassing social media posts have probably affected almost everyone at one time or another. But there is a big difference between the court of public opinion and a Monroe County criminal court. If the post comes up at work, there is a presumption that it is authentic. But in criminal court, there is a presumption of innocence. In other words, there is a presumption that the post is inauthentic.
To overcome this presumption, prosecutors must establish that the posts actually appeared on social media at a certain time. A judge may require something like a timestamped screenshot. Moreover, the state must prove that the defendant posted the information. That showing is not easy to make if there is evidence the account had been hacked or if the defendant shared the password with another person.
Contact a Tenacious Lawyer
Social media posts may be used against you in court. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.