by The Law Office of Frank Ciardi | Aug 31, 2020 | Criminal Defense
Typically, DWI (driving while intoxicated) and the slightly different infraction DWAI (driving while ability impaired) are misdemeanors. But in the two cases mentioned below, prosecutors can upgrade these charges to aggravated DWI/DWAI, which is a felony. If it’s possible to enhance charges, aggressive prosecutors almost always do so.
All these infractions have significant direct and collateral consequences. Aggravated DWI/DWAI can be a class E felony (one to four years in prison). A conviction also means mandatory drivers’ license revocation. That’s more severe than drivers’ license suspension. Additionally, these convictions usually cause auto insurance rates to triple and create significant employment problems.
Aggravated DWI/DWAI is a very frightening offense. However, a Rochester, NY aggravated DWI lawyer can present a number of effective defenses not only to the aggravating facts but to the underlying offense. As a result, it’s normally possible to successfully resolve these charges.
Child Passenger Under 16
Admittedly, even the best Rochester, NY aggravated DWI lawyer has problems defending this enhancement. The child passenger need not be related to the defendant. In fact, the defendant does not even need to know the child was in the car.
That being said, an obscure legal doctrine called the best evidence rule sometimes comes into play in these situations. This rule, which usually applies in contract disputes and other civil cases, requires a party with the burden of proof, which in this case is the state, to produce the original document as opposed to a photocopy, because the original is the best evidence.
Arguably, the best evidence of a child’s age is the child’s birth certificate. Information the child provider or that officers obtain from educational or other public records is, at most, second best. A good Rochester, NY aggravated DWI lawyer can at least leverage this defense to obtain a more favorable out-of-court settlement.
As mentioned above, attacking the evidence in the DWI portion of this offense is also a good strategy. Common defenses include not intoxicated and not driving in a public place. The state often relies on field sobriety tests, like the one-leg stand, to establish intoxication. These test results are not always reliable. As for operating in a public place, locations like large shopping mall parking lots are not public places, even if they are publicly accessible.
BAC Above .17 and Rochester, NY Aggravated DWI Lawyers
If the defendant submitted a chemical sample, usually a breath sample, and the level was above .17, which is slightly more than twice the legal limit for non-commercial drivers, prosecutors could charge the defendant with aggravated DWI per se.
However, just like field sobriety test results are not always accurate, Breathalyzer results are not always accurate. In fact, despite all its bells and whistles, today’s Breathalyzer is essentially a 1920s Drunk-O-Meter. Both these gadgets measured breath alcohol level to estimate blood alcohol level.
Frequently, Rochester, NY aggravated DWI lawyers partner with degreed chemists to highlight Breathalyzer flaws like:
- Mouth Alcohol: If the subject vomited or burped in the fifteen minutes prior to the test, alcohol particles from the stomach move into the mouth and skew the BAC estimate.
- Ketone Particles: Diabetics and other individuals have high ketone levels in their bodies. Breathalyzer registers these particles as ethanol.
- Unabsorbed Alcohol: Most alcohol moves from the stomach to the liver to the blood. So, if the defendant had been drinking within the last hour, that recently consumed alcohol is not yet in the bloodstream.
Blood tests, which are not very widely used in New York, are more accurate than breath tests. However, blood samples often have chain of custody admissibility issues.
Rely on an Experienced Lawyer
Prosecutors are aggressively going after those charged with a DWI. For a free consultation with an experienced Rochester, NY aggravated 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 | Aug 15, 2020 | Criminal Defense
Fraudulent unemployment claims, mostly the ones made during the coronavirus pandemic, could cost the system up to $25 billion. Officials are determined not to let fraud impair payments to needy people. Because prosecutors are so aggressive, it is important to seek help for unemployment fraud charges.
The problem ranges from individuals making false statements to well-organized criminals who file large numbers of fraudulent applications. Some inmates of a Pennsylvania county jail are under investigation for allegedly collecting unemployment benefits while they were incarcerated. On the other end of the scale, a Nigerian criminal gang allegedly stole personal information from thousands of people. The gang filed fraudulent claims in a half-dozen states which totaled hundreds of millions of dollars, according to investigators.
“People are losing their cars, their homes, and they are moving back in with other family because they cannot pay for things,” observed unemployment advocate John Tirpak. “It is quite a crisis for many people, and it is not a few isolated incidences.”
Help for unemployment fraud charges begins with understanding exactly what fraud is. In a nutshell, fraud is a misrepresentation of a current material fact which is designed to produce a pecuniary benefit. Let’s look at these elements more closely:
- Misrepresentation usually means making a false statement or withholding information. Normally, the misrepresentation need only be intentional. That’s different from malicious.
- Misrepresentation of a future fact, even if that misrepresentation is a bald-faced lie, is not a fraud. Bad checks are a good example. A postdated check is not a bad check. The maker essentially admits that there are insufficient funds in the account now, but there may be sufficient funds later.
- Pecuniary benefits always involve money. That could be obtaining money or not spending money. Tax fraud is illegal even if the fraudsters simply reduce their tax liability.
New York’s Deceptive Practices Act, which controls most fraud claims, does not require additional elements, such as reliance. Therefore, fraud claims are rather easy to prove in court.
Types of Unemployment Fraud Prosecutions
These prosecutions usually involve the application itself or the follow-up to the application. During their initial reviews, investigators often look for fraud badges, such as:
Failure to report all income, such as a freelancing gig or money from odd jobs,
- Falsely claiming school attendance,
- Manufacturing job searches,
- Social Security Number fraud, typically using someone else’s information to either work or claim benefits,
- Not reporting the inability to work due to sickness or severe injury, and
- Failure to report workers’ compensation or other benefit payments.
Unemployment fraud could mean prison time in New York, largely depending on the monetary amount involved.
Getting Help for Unemployment Fraud Charges
Fraud cases are quite serious. Fortunately, since they are nonviolent, there are a number of possible resolutions, especially if the defendant has no prior criminal record.
Pretrial diversion is usually available in these instances. If the defendant makes restitution, which normally involves returning some benefits, and meets some other program requirements, prosecutors dismiss the case. There is usually no downside to pretrial diversion. If the defendant fails to qualify or complete the program, prosecutors simply pick up where they left off.
Deferred adjudication is a high risk, high reward proposition. Individuals who do not qualify for pretrial diversion, perhaps because of a criminal background, usually qualify for deferred adjudication. The judge sentences the defendant to probation. If the defendant successfully completes probation, the judge dismisses the case. As a result, the defendant has no conviction record.
If the defendant violates probation, the judge can sentence the defendant to anything up to the maximum. So, an attorney should carefully review your case before you accept deferred adjudication.
Reach Out to an Experienced Lawyer
Prosecutors are aggressively going after accused unemployment fraudsters. For a free consultation with an experienced Rochester attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.