June 2022 - Law Office of Frank Ciardi

Here’s How a DWI Attorney in Rochester Can Get Your Charges Dismissed in NY

by The Law Office of Frank Ciardi | Jun 30, 2022 | Criminal Defense

According to self-reported statistics, during COVID-19 lockdowns in the Empire State, the number of intoxicated motorists increased significantly.^[1] These numbers were self-reported mostly because DWI enforcement dropped off to nearly nothing in many areas, including Monroe County. So, the law enforcement figures from this period are very unreliable.

Now, law enforcement agencies are making up for lost time. They aggressively look for drunk drivers and prosecute them as vigorously as possible. When law enforcement agencies are over-aggressive, it’s easier for a DWI attorney in Rochester to successfully resolve these charges. Enforcement tactics and targets may change, but for the most part, the rules in a criminal case don’t change. If law enforcement officers take shortcuts, the evidence they collect frequently isn’t admissible in court.

Pretrial Diversion

Monroe County is one of the only jurisdictions in New York that offers a form of pretrial diversion in DWI cases. Prosecutors reduce first-time felony DWI charges to misdemeanor charges if the defendant successfully completes a treatment program. This treatment program usually lasts about six months. Program requirements vary in different courts. Most defendants must perform community service, attend a few self-improvement classes, including DWI classes, attend a victim impact panel, and stay out of trouble with the law.

Defendants who successfully complete this Creative Interventions pretrial diversion program still face misdemeanor DWI charges. However, a felony conviction is a lot worse than a misdemeanor conviction. If a charge reduction plea bargain is unavailable for whatever reason, this program is often a good alternative.

Pretrial diversion programs are risk-free programs. If the defendant flunks out of the program, which isn’t very likely, prosecutors simply pick up where they left off. The only difference is the evidence is six or seven months older, and therefore, the case is more difficult to prove.

Possible Defenses from a DWI Attorney in Rochester

Most DWI cases have three phases. Some only have two. About a fifth of DWI defendants refuse to provide chemical samples. Each phase of the case is subject to challenge in criminal court.

Reasonable Suspicion for the Stop: Under current law, reasonable suspicion is basically an evidence-based hunch. It’s not a hunch supported by evidence. For example, if Officer Davis sees Michael leave a bar late at night and later sees Michael run a stop sign, that’s not reasonable suspicion. That’s profiling Michael.
Probable Cause for the Arrest: This phase usually involves the one-leg stand and other field sobriety tests. The officer’s opinion that the defendant “failed” these tests is usually enough for probable cause. But this opinion might not be enough to convict the defendant. The jury decides whether the defendant passed or failed the tests.
Chemical Test Issues: The Breathalyzer, which is a modified version of the Drunk-o-Meter, a device invented in the 1920s, has several scientific flaws. Because Breathalyzers measure breath alcohol levels and estimate blood alcohol levels, many things could go wrong. Blood tests are more reliable, but this evidence is usually unavailable.

If the case is fatally weak at any point, a judge could throw the matter out of court before it goes to trial. Alternatively, jurors could find the defendant not guilty if they don’t believe the prosecutor proved guilt beyond any reasonable doubt.

Other defenses include not operating the vehicle and not in a public place. Defendants must at least intend to drive. They cannot be in their vehicles to talk on the phone, listen to music, or simply get away from it all for a few minutes. Additionally, parking lots aren’t public places unless the lot has more than four spots.

Charge Reduction Plea Negotiation

Prosecutors press felony charges if the defendant has more than one prior conviction. Prosecutors could also use enhancements, like a crash or a child in the car, to upgrade charges. Since these enhancements are difficult to prove in court, a Rochester DWI lawyer can often convince prosecutors to drop them.

Prosecutors often confuse DWI cases with DWAI (driving while ability impaired) convictions. After all, these two abbreviations look pretty much the same. There’s a difference between driving while impaired and driving while intoxicated. Impairment is a partial loss of function. Intoxication is a complete loss of function. So, a DWAI conviction usually doesn’t count as a prior DWI conviction.

Incidentally, a few jurisdictions allow prosecutors to voluntarily reduce weak DWI charges to DWAI or reckless driving.

Child passenger cases could have similar issues. A child’s statement to a police officer might be insufficient. Instead, prosecutors might have to subpoena the child or at least produce a birth certificate. Most prosecutors don’t want to jump through these hoops. They’d rather reduce upgraded DWIs to ordinary DWIs.

Contact a DWI Attorney in Rochester

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester DUI attorney. Convenient payment plans are available.

Sources:

[1] https://www.safehome.org/resources/dui-statistics/

The Best Defenses a Rochester DUI Lawyer Will Use in Monroe County NY

by The Law Office of Frank Ciardi | Jun 15, 2022 | Criminal Defense

Despite a decades-long crackdown against drunk drivers, New York still has one of the highest numbers of fatal alcohol-related wrecks in the country.¹ So, prosecutors are very aggressive in this area. In fact, many jurisdictions in upstate New York have no dismissal policies. No matter how weak the evidence is or what extenuating circumstances exist, prosecutors never voluntarily dismiss cases. This policy means that no pretrial diversion or other such relief is available in DUI cases.

There’s a lot at stake in these cases. In addition to direct consequences, like jail time and loss of driving privileges, these criminal charges have substantial indirect consequences. For example, a first-time DUI conviction usually causes auto insurance rates to triple. These individuals must purchase high-risk insurance policies and maintain them for at least three years.

What Happens When You Work with a Rochester DUI Lawyer

After a thorough case review, a Rochester DUI lawyer formulates a plan that reduces or eliminates these harsh consequences. This plan usually involves one of the three areas outlined below. Typically, if an attorney aggressively sticks with the plan, the outcome of your case could be a complete dismissal of charges or a not-guilty verdict at trial.

Procedural Obstacles

We all face obstacles in life. Determined people usually go around, through, or over them. Less-determined people usually quit. In most cases, prosecutors are aggressive, as outlined above. But they aren’t very determined. There’s a difference between these two qualities.

Cases filed in the wrong county are a good example. Many communities are partially in Monroe County and partly in another jurisdiction. Monroe County judges cannot preside over criminal matters that occurred in another county. When judges discover this problem, and they always do, they immediately dismiss the case.

Technically, prosecutors must simply begin anew in the correct county. However, many prosecutors lack the determination to start over. That’s especially true if, as is commonly the case, prosecutors don’t discover the error until relatively late in the process. Even a no-voluntary-dismissal district attorney usually allows prosecutors to make favorable deals if the alternative is an involuntary dismissal.

Non-Intoxication Defenses

Frequently, intoxication is the only real issue in a DUI case. However, in many situations, the driving element of a DUI criminal case is more challenging to prove than the intoxication element.

Assume David is passed out drunk behind the wheel. Under New York law, he’s operating the vehicle, which means that a DUI charge could hold up in court. However, the state must also prove that the car had gas, four fully inflated tires, and was otherwise operational. Police officers rarely look at gas gauges during DUI arrests. So, there may be insufficient evidence on this point.

Fast forward a bit and assume David hit another car while driving. David and Jonathan, his passenger, are both out of the vehicle by the time emergency responders arrive. Unless an independent witness got a good look at the driver behind the wheel, the state would have a hard time proving, beyond a reasonable doubt, that David was the driver.

Intoxication Defenses

In most cases, Breathalyzer test results provide intoxication evidence in DUI cases. According to one study, the Breathalyzer has a staggering 50 percent inaccuracy rate.² So, a .10 result could mean the defendant had a .05 or a .15 BAC level. That’s a pretty big margin of error. Because of the high error rate, a Rochester DUI lawyer is often able to establish a specific flaw.

Improper calibration is perhaps the best example. If a judge throws out Breathalyzer results, it’s usually because the gadget wasn’t correctly calibrated.

During their testimonies, police Breathalyzer technicians often talk about how sophisticated these devices are and how many bells and whistles they have. Witnesses who provide such testimony are almost literally digging their own graves. The more moving parts that any gadget has, the greater the chances are that something could go wrong.

External and internal temperature changes are good examples. The weather often changes quickly in western New York, especially during certain times of the year. Breathalyzers calibrated on a cold day may be inaccurate on a warm day, and vice versa. Additionally, a mild fever could generate an erroneous result in a .10 or other borderline BAC case, every bit of accuracy matters.

Schedule a Consultation with an Experienced Rochester DUI Lawyer

There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester DUI attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.