Getting Covid-19 puts you at risk of being incorrectly charged with driving while intoxicated (DWI), which is why it’s good to have a DWI attorney in Rochester NY in mind.
How Covid-19 and a DWI Attorney in Rochester NY Are Linked
2020 was a year like no other in many ways, including DWI arrests. The lockdowns in the first half of 2020 reduced DWI arrests to almost nothing. Then, in the second half of the year, DWI arrests shot up at an unprecedented rate. The overall effect was that, shockingly, authorities made more DWI arrests in 2020 than they made in 2019.
As we’ll explore later, coronavirus has changed the way peace officers enforce traffic laws, including DWI. Just as COVID-19 seems to be permanent, it appears that these changes to DWI enforcement may also have changed for good.
Pandemic or not, DWI is one of the most frightening criminal cases in New York. The direct consequences are bad, and the indirect consequences are often even worse. A Rochester DWI lawyer can reduce or eliminate these effects. These prosecutions have a lot of moving parts, especially during the coronavirus era. So, these charges are often difficult to prove in court.
Believe it or not, “driving” is not an element of “driving while intoxicated.” In New York and most other states, this offense is really OWI (Operating While Intoxicated). Even if the defendant is literally asleep at the wheel, prosecutors could convict the defendant of DWI if the car is in drivable shape and the defendant has the keys.
Many law enforcement agencies have limited personal contact because of coronavirus. For example, instead of pulling over a motorist for speeding, an officer might simply follow the motorist and run a check for outstanding warrants. So, if a defendant is not an active hazard, many officers think twice before making an arrest.
There are some other factors as well. These defendants are often very disoriented, so a high percentage of these stops end badly for everyone involved. The tragic Rayshard Brooks shooting is a good example. This specific issue dovetails with a general trend: the public’s eroding confidence in police officers. Nowadays, many jurors view non-driving DWI stops as little more than police harassment.
Furthermore, these cases often have legal issues. Frequently, as in the Brooks case, an anonymous tipster provides the police with information about the suspect. Many Monroe County judges consider these tips unreliable. If the reporting person doesn’t vouch for the information provided, a judge might not feel much differently.
COVID-19 could also affect these offenses. This illness, and its effects, sometimes taints the evidence in a DWI case.
Coronavirus is primarily a physical illness. But it has some mental effects as well. As a result, a Field Sobriety Test, which measures physical and mental ability, could be skewed. Some defendants with mild coronavirus cases or COVID-19 long-haul symptoms could have problems following directions or balance issues.
These effects could include chemical tests as well. Body temperature affects Breathalyzer results. As a rule of thumb, every four-tenths above average body temperature drives up the BAC estimate by about one-tenth of a percent. So, if Dan has a 99-degree temperature (.4 above average) and blows a .08, his actual BAC level could be .07, which is below the legal limit.
COVID-19, Criminal Procedure, and Rochester DWI Lawyers
In conclusion, we should briefly look at how coronavirus has changed criminal court procedures, including DWIs, in Monroe County and elsewhere.
Longer wait times for jury trials are a good example. In ye olden days, many defendants waited a year or more for a jury trial date. Because of the coronavirus backlog and a smaller number of potential jurors due to social distancing, that wait could now be more like two years, in some cases.
Many prosecutors do not want these cases on their desks for that long, so they are more willing to make favorable deals. Furthermore, delay always hurts the party with the burden of proof, which in this case is the state. Over time, physical evidence often gets lost, and witness memories fade.
Contact a Dedicated DWI Attorney in Rochester NY
COVID-19 has changed criminal law enforcement and prosecution. These changes might be permanent. For a free consultation with an experienced Rochester DWI lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
The range of punishment is the most significant difference between a misdemeanor and a felony. Misdemeanors are punishable by a maximum of one year behind bars. Felonies are punishable by one year of incarceration or longer. The distinction between misdemeanors and felonies became more critical in the late 1880s when plea bargaining became more common in American courts. Regardless of its classification, the essential elements of a crime are the same.
The approach of a Rochester criminal defense lawyer is usually the same for either a misdemeanor or a felony. Although the range of punishment is different, both types of offenses are pretty severe. The burden of proof is the same in both kinds of crimes as well. Prosecutors must prove guilt beyond any reasonable doubt. So, lack of evidence is usually the best defense against either a misdemeanor or a felony.
Basic Components of a Criminal Offense
As previously mentioned, the burden of proof is most important to the actus rea, or criminal act. Technically, both direct and circumstantial evidence is admissible. But circumstantial cases are hard to prove in criminal court. Say a witness sees Tim running away from Sally’s dead body, that could mean he killed Sally, or it could mean he was scared. If a witness saw Tim kill Sally, the state’s case is much stronger. If investigators also recovered the murder weapon, Tim is in real trouble.
There’s a difference between an act and a condition. In ye olden days, laws prohibited things like homosexuality and drug addiction. A similar issue still comes up today in some assault cases and other violent crimes. It’s not illegal to have a bad temper or to be violently angry at someone. It’s only illegal to hit someone intentionally.
This point leads us to the mens rea, or criminal state of mind, the other fundamental element of most criminal offenses. Most New York criminal laws apply to “intentional” conduct. The I-word usually means non-accidental. In some cases, “knowingly” doing something illegal is also a crime. For example, it’s unlawful to knowingly remove some items from state or national parks, even if the defendant didn’t mean to do anything wrong.
Jurors may infer intent from conduct. If Tim hit Sally with a baseball bat, he probably intended to hurt her, even if he says otherwise on the stand. However, if Tim pushed Sally and she fell down the stairs, the intent is harder to prove, at least beyond a reasonable doubt.
Regulatory offenses, such as DWI and traffic tickets, have no mens rea requirement. Prosecutors need not prove that defendants intentionally or knowingly ran stop signs or drove drunk.
Types of Criminal Offenses and Rochester Criminal Defense Lawyers
Attacking the mens rea evidence in a criminal case is often an effective defense. Let’s see how this defense plays out in the three major types of criminal offenses.
This category includes offenses like assault, murder, and sexual assault. In addition to the direct evidence mentioned above, these cases often rely on a confession.
Strict rules, such as the Miranda rule, apply in this area. Officers must advise defendants of their Miranda rights, such as the right to remain silent, very early in the process. Any evidence they subsequently obtain, including a confession, could be inadmissible in court if they fail to do so. The fewer arrows of evidence the state has in its quiver, the harder it is to hit the target.
Drug possession is by far the leading offense in this category. Others include possession of an illegal firearm and possession of illegal pornography. In these cases, prosecutors must establish the following elements:
Assume Mary is at home when her new roommate is selling drugs. Prosecutors can probably establish proximity. Depending on the facts, they might have difficulty establishing control and knowledge, especially since the burden of proof is so high.
These offenses involve reducing the value of property, usually by taking it without permission or by defacing it.
Much like personal offenses, property crimes usually require a non-officer witness. This requirement is hard to meet in many cases. Some civilian witnesses are uncooperative. The state could force these people to testify against their will, but prosecutors rarely use this power. Other times, by the time the case goes to trial, the primary complaining witness has moved and is unavailable.
Consult an Experienced Attorney About a Misdemeanor or Felony
Other than the different ranges of punishment, felonies and misdemeanors are the same. For a free consultation with an experienced Rochester criminal defense lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Does a repeat offense impact the decision of jurors on a criminal case? Most people assume that where there is smoke, there’s fire. So, if jurors learn that the defendant has a criminal record, that knowledge is usually the kiss of death.
Rule 4.11 Limits the Effect of a Repeat Offense
Fortunately, evidence of a repeat offense is generally inadmissible to the current case. The New York Rules of Evidence state in Rule 4.11 that prior bad acts are inadmissible in a criminal or civil proceeding “to prove that the person acted in conformity therewith on a particular occasion or had a propensity to engage in a wrongful act or acts.”1 However, there are a couple of trial admissibility loopholes, which are examined below.
There are also some practical ways that a criminal record from a repeat offense affects a criminal case. People who have been through the system before have some idea of what to expect. For first-timers, the criminal justice process is intimidating, to say the least, and usually downright scary.
These two issues underscore the need for a good Rochester criminal defense lawyer. A lawyer is an attorney and counselor at law, and legal advocacy is a big part of the job. Even if the state’s case seems airtight, some defenses are usually available. Furthermore, and perhaps more importantly, a Rochester criminal defense lawyer guides defendants through this time so that they can make the best possible decisions.
Trial Loopholes That Could Reveal a Repeat Offense
Rule 4.11 exists to defeat the smoke/fire presumption mentioned above. On a similar note, jurors should never know if the defendant is in jail. Most people assume that incarcerated people did something wrong. So, jurors should never see the defendant in jail clothes or handcuffs. However, Rule 4.11 also includes the dreaded and feared word “except.”
There are four exceptions to the inadmissibility rule:
- Essential Element: If the defendant’s character is a crucial element of the offense, prior bad acts are admissible on this point. Offenses that involve fraud or dishonesty, including most property crimes, fall into this category. Sometimes, judges only allow prosecutors to use prior crimes which involved moral turpitude.2
- Rebuttal Evidence: If a Rochester criminal defense lawyer introduces evidence about the defendant’s good character, the prosecutor can rebut this evidence with the defendant’s criminal record, which indicates their bad character. To avoid opening this door, it’s usually essential for an attorney to stick to the facts. However, there may be a fine line because jury sympathy is often critical.
- Self-Defense: Sometimes, prosecutors can use a criminal record to disprove this affirmative defense and show that the defendant was, in fact, the aggressor. This exception is somewhat technical.
- Impeachment: This exception is the most used one. When prosecutors use criminal records for impeachment purposes, they aren’t technically using these records to prove character conformity. Instead, they use this evidence to show the defendant is untruthful. Many judges tell jurors they may only consider the criminal record for limited purposes. But no one is sure how much effect these limiting instructions really have.
Because these loopholes are rather broad, especially the impeachment loophole, a trial might not be the best idea if the defendant has a criminal record. So, a negotiated settlement could be a better alternative.
Plea Negotiations and Rochester Criminal Defense Lawyers
The rules of evidence only apply in trials and other such proceedings. They don’t apply during plea negotiations. In fact, prosecutors have almost unlimited discretion to consider pretty much anything they consider relevant. In most jurisdictions, judges don’t supervise plea negotiations, or they do not pay much attention to them.
Furthermore, criminal convictions never fall off criminal records. Usually, after about ten years, they are mainly inadmissible in court. But prosecutors routinely tailor their offers according to the defendant’s criminal history, no matter how old that history is.
The before-and-after approach often reduces the effect of a criminal record during plea negotiations. For example, some people commit offenses because they were in harmful environments or had substance abuse problems. So, if the defendant has made some significant life changes, prosecutors often see these changes as mitigating circumstances.
Connect with a Hard-Working Attorney
One way or another, old criminal records usually affect new criminal cases. For a free consultation with an experienced Monroe County criminal defense lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
We have received several calls about drivers’ license suspension, mainly because the law changed in June 2021.1 New York no longer suspends drivers’ licenses for failure to appear in traffic court or failure to pay fines. Instead, courts will send notices to these drivers. About two dozen states have passed similar reforms. The Empire State’s changes are among the broadest ones in the country.
Traffic court FTA (Failure to Appear) and FTC (Failure to Comply) is one of the leading causes of drivers’ license suspension in New York. But it’s certainly not the only cause. Authorities can unilaterally suspend or even revoke your drivers’ license for reasons that have little or nothing to do with driver safety.
Like many other problems in life, a drivers’ license suspension is usually only serious if you ignore the problem. A Monroe County criminal defense attorney can often get the suspension or revocation overturned. If nothing else, a lawyer can usually reduce the suspension period or obtain a hardship license.
Types of Drivers’ License Suspension
When the state suspends your license, bureaucrats send a notice to the address listed on the drivers’ license. Frequently, this address is old and invalid. Therefore, many New Yorkers are driving with suspended licenses and may not know it.
We use the S-word broadly in this context. There are three types of drivers’ license suspension in New York:
If you do not have insurance, refuse or fail a DWI chemical test, are convicted of a drug or alcohol-related offense, get too many points on your license, or violate certain drivers’ license restrictions, the state suspends your license for a certain period, usually six months or a year. Your license doesn’t automatically become valid when the suspension period ends. Instead, you must file paperwork, pay a fee, and possibly jump through some other hoops.
Common indefinite suspension reasons include failure to pay a fine, file an accident report, pay state taxes, or pay child support. The state may also indefinitely suspend your license if you have epilepsy or certain other medical conditions. Your license is suspended until the state lifts the suspension. That period could be an hour or a decade.
If you were an at-fault driver in a fatal accident, you are convicted of a severe drug or alcohol-related offense, and in a few other cases, the state revokes your license. You must petition for reinstatement and retake the test. The DMV routinely denies these petitions, especially if the driver does not have a Monroe County criminal defense lawyer.
Out-of-court settlements are typical in many cases. For example, if Mike’s license is suspended due to child support nonpayment, the state might reinstate it if he pays part of the amount due and agrees to a payment plan for the balance. There could be some legal defenses as well. For example, before the state suspends Marilyn’s license for failure to provide a chemical sample in a DWI, the state must prove officers had probable cause to make this demand.
After License Suspension: Hardship Driver’s License
Usually, conditional and restricted drivers’ licenses are available in New York. There are some subtle differences between these two forms of relief.
Judges usually issue conditional licenses in alcohol-related suspension cases. Defendants may drive as long as they meet certain conditions, such as installing an Ignition Interlock Device. An IID is essentially a portable Breathalyzer that’s connected to the ignition. Restricted use licenses are often available in all other cases. These restrictions usually limit defendants to driving for work, school, and certain other limited purposes, such as going to court or to the doctor’s office.
The defendant bears all the costs involved. That includes IID installation, monitoring, and maintenance fees. The state normally assesses a fee as well.
Count on a Dedicated Attorney
Options are available to people with suspended or revoked licenses. For a free consultation with an experienced Monroe County criminal defense lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
We often get asked, “can a defense lawyer get a bench warrant lifted?” Here’s our in-depth exploration of this question, and our answer, depending on the type of warrant.
Need to Get a Bench Warrant Lifted?
You may have heard the saying that time heals all wounds. In criminal law, this is sometimes true.
The statute of limitations for a misdemeanor is usually one year, and the statute of limitations for a felony is usually five years. But there is no statute of limitations regarding criminal records, at least in most cases. Typically, a conviction stays on your permanent record forever.
An Attorney Can Get A Bench Warrant Lifted
Warrants are a mixed bag in this area. Search warrants are usually only valid for a few hours or days at most. But there is no statute of limitations on arrest and bench warrants.1 In most cases that Rochester defense lawyers handle, an officer pulls over a defendant for rolling through a stop sign or another minor offense. The warrant pops up on the computer, even if the warrant is several decades old. At that point, department policy usually mandates an arrest.
From a certain point of view, every warrant is a bench warrant. Only judges may issue warrants. But search and arrest warrants are based on probable cause affidavits. A judge issues a bench warrant upon their initiative, usually for failure to follow a court order.
A Rochester defense lawyer can get a bench warrant lifted and put the case back on the docket in many situations. Generally, there’s no court appearance required. Once the case is on the docket, several defenses are usually available. For example, most traffic court FTA bench warrants are so old that the arresting officers are long gone, as are any material witnesses.
Traffic Ticket Warrants
FTA (Failure to Appear) and FTC (Failure to Comply) are the two most common traffic ticket bench warrants in New York. Failure to appear is usually, wait for it, a failure to appear in court. Frequently, defendants forget about the court date. Failure to comply is usually a missed payment or another deadline. Sometimes, courts send reminder letters in these cases. But generally, the judge issues a warrant.
Sometimes, bail bonds companies can lift these warrants. Then, the defendant must appear in court to defend the traffic ticket or show cause (explain) why s/he missed the deadline. If a Rochester defense lawyer lifts the warrant, the judge usually does not require defendants to appear, at least initially. Lawyers and prosecutors are generally able to work out deals in these situations.
Most felony and misdemeanor bench warrants have special provisions, so bonding companies cannot work with them, at least in most cases. Usually, criminal bench warrants are for contempt of court. Examples include failing to:
- Obey court order
- Show up for jury duty (yes, a judge can issue a warrant for such behavior)
- Pay a fine
- Allow court-ordered visitation
- Pay spousal or child support
- Obey a subpoena
- Fulfill all terms and conditions of probation
Let’s expand on that final bullet point. By far, the two most common probation violations are committing another infraction against the state of New York and failing to report. Failure to pay fees or restitution is a somewhat distant third, not because these violations are uncommon, but because there are some Constitutional issues.
At a show-cause hearing in traffic court, judges are usually willing to accept semi-legitimate excuses, such as the inability to afford defensive driving. But at a misdemeanor or felony show cause hearing, there’s usually no such thing as a valid excuse.
In ye olden days, Rochester defense lawyers often got these cases thrown out on a technicality. Section 30.30 (4)(c) once required the state to prove due diligence in serving the warrant. In other words, the state had to try hard to serve the warrant. Letting it sit in the computer wasn’t good enough. But that law changed in 1996.2
So, the best option in a criminal court bench warrant case is usually to surrender at a county jail and work out a plea agreement with the state. This agreement usually includes an extension of time to comply or similar light punishment.
Consult An Experienced Attorney
If the judge issues a bench warrant, you must do something about it straight away. For a free consultation with an experienced Rochester defense lawyer about how to get a bench warrant lifted, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
If you are considering whether to plead guilty in NY state, the best place to start is by consulting an experienced defense attorney in western NY to learn all of your legal options. These alternatives include pretrial diversion, procedural and substantive defenses, or probation, which may reduce your sentencing time, leave your criminal record clean or get the case dismissed entirely.
Read Before You Plead Guilty in NY
It’s commonly said that a defense attorney is simply a person who helps you get what is coming to you. In other words, since plea bargains resolve almost all criminal cases and the terms are pretty much set, at least in most cases, there is little need for a top attorney. This mindset is not entirely off base.
Yes, plea bargains resolve most criminal matters, especially federal cases, and often the terms of these agreements – including the length of probation – are set in stone. Under the Federal Sentencing Act, prosecutors usually offer the same deals on the same cases to all defendants. The only variable, which is fixed, is the defendant’s criminal record.
So, if you are willing to take the first offer, no matter how good or bad it is, you probably do not need legal representation. But just like any other negotiation, there is usually a better plea deal available, especially if the defendant has a strong advocate and a possible defense. Only a Rochester defense attorney can secure better terms.
Better Alternatives to Pleading Guilty in NY From a Trusted Defense Attorney in Western NY
Learn about your other legal options and the advantages they offer compared to pleading guilty in New York, covered in the list below:
Before we talk about possible criminal defenses, let’s talk about pretrial diversion. Prosecutors usually offer such alternatives if the defendant has no criminal history and gets charged with a nonviolent crime. This option is generally available in other cases if a criminal defense attorney in western NY asks for it. Prosecutors do not hand out pretrial diversion like candy on Halloween.
Diversion programs vary in different courts. Usually, the defendant must pay restitution, if applicable, and complete some other requirements, like community service hours, a self-improvement class, or a substance abuse evaluation. If the defendant jumps through all these hoops, prosecutors dismiss the case.
Pretrial diversion has several advantages. These arrangements usually involve limited or no court supervision. The case ends earlier, so defendants can get on with their lives. Perhaps most importantly, if prosecutors dismiss the case, the defendant has no criminal conviction record.
A criminal defense attorney in Western NY doesn’t only use procedural and substantive defenses at trial. Attorneys use these defenses as negotiating leverage. As the chances of a not-guilty verdict rise, the prosecutor’s offer gets better.
Procedural defenses usually involve a violation of the Bill of Rights. Searches and seizures are an excellent illustration. Police officers typically need a warrant or probable cause to do these things. Without one or the other, the seized evidence could be inadmissible in court. If the defense is strong enough, prosecutors will make a deal rather than risk it all on a hearing.
A substantive defense usually means a lack of evidence. Frequently, defendants are morally guilty, but prosecutors cannot prove it in court. Assume Sam sneaks up behind Jim in a parking lot and clubs him on the head with a baseball bat. If there were no other witnesses, the state would have a hard time proving Sam was guilty, at least beyond a reasonable doubt.
We mentioned court supervision (probation) earlier. Primarily for financial reasons, pretty much everyone receives probation. Incarceration costs money, but probationers pay supervision and other fees.
Especially if a defense is present, either regular probation or deferred adjudication might be available. Regular probation is, well, regular. If defendants obey all conditions of probation, they stay out of jail. For practical purposes, deferred adjudication is the same. But if the defendant completes deferred adjudication probation, the judge dismisses the case, and the defendant has no criminal record.
The defendant need not complete probation perfectly. A Rochester defense lawyer can usually still get the case dismissed if a few issues along the way. This form of probation is prevalent in New York. The Empire State has minimal expungement laws. So, once a conviction is on your record, it usually stays there forever.
Work with a Dedicated Defense Attorney in Western NY
Plea bargains resolve most criminal matters, and there are usually multiple options available. Before you decide to plead guilty in NY, get a free consultation with an experienced Rochester defense lawyer by contacting the Law Office of Frank Ciardi. The sooner you reach out to us, the sooner we start fighting for you.