A statute of limitations applies to crimes. Once the SOL expires, which is normally two years for a misdemeanor and five years for a felony, prosecutors cannot press charges. But arrest warrants have no statute of limitations.[1] Once authorities issue them, they are good forever. It’s quite common for police officers to pull you over for a minor traffic violation, find that there is an outstanding warrant for your arrest, usually one which you had forgotten about, and then arrest you. It doesn’t matter if the warrant is several years old, or even several decades old.
So, arrest warrants never go away. But a Rochester criminal defense lawyer can clear these warrants and place the matter on the trial docket. A full array of defenses is available. Since the case is probably several years old, prosecutors often face major proof problems. Therefore, most Rochester criminal defense lawyers can resolve these charges successfully.
Finding Out if You Have a Warrant for Your Arrest
In most cases, you only need to worry about a local arrest warrant or one from a contiguous county. As mentioned, arrest warrants issued from other counties are still valid. However, police officers in Monroe County rarely enforce foreign warrants. It costs a lot of money to detain a defendant and extradite the defendant to another county. Such efforts are also risky. If something happens during transport, like a car accident, the arresting agency is legally responsible for damages.
Obviously, if the warrant is for murder or something very serious, any police officer would enforce it. But generally, if you live in or near Rochester, you should only worry about an arrest warrant from Monroe, Wayne, Ontario, Livingston, Genesee, or Orleans County.
For criminal offenses, consult the sheriff’s website. There’s usually an outstanding warrant link or a place to enter your name, date of birth, etc. For infractions, consult the city’s website. Additionally, many cities hire lawyers to collect unpaid fines.
The Surrender Process
A Rochester criminal defense lawyer usually needs only to file paperwork to clear a municipal warrant. Lawyers may clear warrants for their active clients.
Criminal warrants are a bit more complex. Typically, defendants must book in and book out at the county jail. The middle of the day in the middle of the week is a good time for such surrenders. A Rochester criminal defense lawyer ensures that bail paperwork is ready to go, and all other ducks are in a row. The entire process usually takes about four or five hours, but it could be much faster or much slower.
Defending Old Cases in Court
Typically, if the arresting officer has left the force, prosecutors dismiss the charges. Such matters are too expensive and time-consuming to pursue. Once again, if the warrant for your arrest is a serious felony, prosecutors are normally much more diligent.
If the arresting officer is still with the force, prosecutors normally pursue the case. But it’s not easy to obtain a conviction in an old case.
Witness recollection is a good example. The law allows witnesses, including police officers, to review the police report to refresh their memories. But they must have some independent recollection. If a witness cannot recall a detail that is not in the police report, such as the weather on that day, a Rochester criminal defense lawyer might be able to exclude that witness’s testimony.
Rely on an Experienced Attorney
If there is a warrant for your arrest, it never goes away on its own. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Many minors do not think they need an attorney for a zero-tolerance DWI. It’s rather easy to see why. This infraction is not technically a criminal offense in New York.[1] Furthermore, the possible penalties, which mostly include license suspension and a fine, are relatively light. But the penalties for driving with a suspended license are potentially severe. Moreover, many Monroe County judges believe these defendants are scofflaws, and they throw the book at them. And, although a limited license is available, the DMV doesn’t simply give them away.
So, if you were charged with a zero-tolerance DWI, you should definitely hire a DWI Attorney, even if you are under 21. Although a zero-tolerance DWI isn’t technically a criminal matter, it has basically the same elements as a standard DWI. Therefore, if the evidence is weak, a Rochester criminal defense lawyer might be able to get the case thrown out of court. If nothing else, evidentiary weaknesses which attorneys identify make it easier to obtain a limited license.
Hire a DWI Attorney for Zero-Tolerance Infractions
The state could fine you and take away your drivers’ license if you’re under 21, you refuse to provide a chemical sample, or your BAC was between .02 and .08. So, despite the “zero tolerance” moniker, these offenses aren’t exactly zero tolerance. The .02 threshold means that defendants who gargle with mouthwash, have wine at communion, or celebrate with a sip of champagne are probably okay.
The possible penalties for this infraction (not crime) are:
$125 civil penalty (not a fine), and
Six-month drivers’ license suspension.
The distinction between infractions and crimes is a subtle one, but an important one. Generally, employers, universities, and other people with inquiring minds ask about criminal convictions. Even if you pay the maximum penalty and sit out the maximum suspension period, you have not been convicted of a crime.
Speaking of drivers’ license suspension, if this is your first offense, a Rochester criminal defense lawyer can help you obtain a conditional license that allows you to drive to and from work, to and from school, and in a few other limited circumstances. You must complete the Impaired Driver Program, f/k/a the Drinking Driver Program.
An illegal stop and lack of probable cause for a chemical sample request are the two biggest defenses in these cases. Officers must have reasonable suspicion to detain motorists. They cannot detain a motorist on a hunch or because s/he “doesn’t look right.” Poor performance on the field sobriety tests, such as the walk and turn, usually satisfies the probable cause requirement. Some drivers refuse to perform these tests, which is their right under the Fifth Amendment.
Underage DWIs
As for the penalties, they are the same for underage and over-21 DWIs, except the possible license suspension period is one year instead of 90 days. Furthermore, minors are usually ineligible for a conditional license.
DWI is a criminal offense. So, it’s more serious and also easier to defend. Intoxication, or lack thereof, isn’t really relevant in a zero-tolerance DWI. But it’s highly relevant in a standard DWI. Chemical tests, especially Breathalyzer tests, are often inaccurate. Additionally, the Field Sobriety Tests are not always reliable indicators of intoxication. The aforementioned walk and turn (walking a straight line) is a good example. It’s almost impossible for anyone with any mobility impairment whatsoever, including a sore ankle or a hangnail, to complete this test, whether the person is drunk or sober.
Hire a DWI Attorney in Rochester
A zero-tolerance DWI is not a criminal offense, but it could mean a world of trouble. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
In March 2021, New York Governor Andrew Cuomo signed legislation that legalized marijuana for most purposes.[1] Lawmakers boldly predicted the measure would create significant tax revenues, tens of thousands of jobs, and other social benefits. Like all other predictions, these prognostications might or might not come true.
One thing is certain. Marijuana legalization significantly altered drug possession and related laws in the Empire State. Furthermore, people with certain marijuana convictions might be entitled to some much-needed post-conviction relief. Below are some of the most frequently asked questions we field about legalized marijuana in NY.
How Much Weed Can I Have?
People over 21 can have up to three ounces of marijuana in their immediate possession for personal use. That doesn’t sound like much, but it is quite a bit. Typically, an ounce of marijuana makes about 60 joints. Truthfully, if you have more than 200 or so joints in your backpack, there’s a good chance at least some of them are not for personal use.
This new law also allows drug trafficking on a minimal basis. It’s legal to give marijuana to other people over 21, as long as the weed is for personal use.
But trafficking is still illegal, at least in most cases. If officers find cash, weapons, baggies, scales, or anything else which might indicate drug trafficking, the state will probably bring felony distribution charges.
You may also keep up to five pounds of raw marijuana in your home. The law requires people to take “reasonable steps” to store the weed in a “secure place.”
Where Can I Burn One?
Until further notice, cigarette smoking areas are now marijuana smoking areas as well. Municipalities, however, may restrict public marijuana consumption. Violating these restrictions would be a civil penalty. Additionally, a state oversight board, which has yet to be established, has similar powers on a statewide basis.
Smoking marijuana in a drug-free area might technically be legal, but it’s probably not a good idea. Pot is illegal under federal law. Nevertheless, a Rochester criminal defense lawyer could probably beat these charges in court, especially if you were smoking near a school or other state property.
What About Police Detentions?
The age-old “I smelled marijuana” line has justified countless police stops over the years, both of pedestrians on the street and people in motor vehicles. Those days appear to be over now. Even if an aforementioned consumption restriction is in force, the law states that marijuana consumption alone does not constitute reasonable suspicion.
Marijuana impairment, however, is still illegal. N.Y. Penal Law 240.40 makes it a crime to be intoxicated by a substance other than alcohol in public if these defendants:
Are a hazard to themselves or others,
Endanger property, or
Annoy anyone.
This law is extremely broad. Marijuana annoys some people. As for the first bullet, if Steve walks down the sidewalk while impaired, he is a danger to himself or others.
Driving under the influence of marijuana is illegal in New York as well. For now, prosecutors must use circumstantial evidence in court, so these cases are rather difficult to prove. However, a marijuana Breathalyzer device is coming soon.
How Does Legalized Marijuana in NY Affect Prior Drug Convictions?
If you have a marijuana possession case on your record, you are definitely eligible for expunction if the amount was under three ounces. Expunction destroys both the police record and the judicial record. Typically, a Rochester criminal lawyer needs to file a petition and prove that the expungement would benefit the defendant somehow. If you have a more serious possession case on your record, you might be eligible for expunction. An executive pardon could be an option in these cases as well.
Even with Legalized Marijuana in NY, You Still May Need a Dedicated Attorney
Marijuana is not “legal” in New York, but it’s a lot less illegal than it used to be. Even with Legalized Marijuana in NY, you may find yourself charged with drug charges if you are carrying above the legal limits. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi.
Typically, an assault or other violent crime is a crime of passion.[1] A heated verbal argument between spouses, friends, acquaintances, or strangers gets out of control. Alcohol is often a factor in these sudden escalations. After an alleged victim gets hurt, someone, usually a witness, calls the police. So, the police officers who file charges don’t see the event. They only see the aftermath. They must piece together the events using various investigative tactics. As outlined below, all these features of a violent crime in NY are potential defenses in court.
The stakes are very high in these cases. Violent crimes are normally felonies. Moreover, these matters usually go to a general jurisdiction criminal court instead of a drug court or other specialty forum. Therefore, judges are more anxious to mete out punishment as opposed to treatment or other corrective action.
In this environment, you need a strong advocate, like a Rochester criminal defense lawyer. An attorney quickly evaluates your case in light of the aforementioned complexities which these cases involve. Most violent crime in NY prosecutions have at least one weakness somewhere. An attorney can use that defense to resolve the charge successfully. This resolution often means a plea to a lesser-included offense.
Jail Release Issues
First things first. Prompt jail release is very important in a criminal case, and not just for the obvious personal issues.
If defendants are behind bars before trial, they often accept unfavorable plea agreements to “get it over with.” That’s especially true since many of these defendants do not want to wait until their trial dates roll around. Their understandable anxiousness to get out of jail deprives a Rochester criminal defense lawyer of perhaps the most potent negotiating tool, which is the possibility of a successful result at trial.
Usually, bail is initially unavailable in violent crime cases, or the cash bail amount is too high to pay. So, attorneys must request bail reduction hearings to secure pretrial release. Some of the factors judges consider at these hearings include the defendant’s:
Criminal history,
Threat to the community at large,
Ability to make bail,
Ties to the community,
Threat to victims or witnesses, and
Ability to flee the jurisdiction.
The Eighth Amendment prohibits excessive bail in criminal cases. Therefore, reasonable bail is usually available, except in some murders and other extreme cases.
Challenging the Evidence for Violent Crime in NY Matter
The bail fight is only the undercard bout. The main event is yet to come. Jail release makes it easier to win this fight, but the result is by no means guaranteed. Fortunately, violent crimes usually involve some procedural and substantive defenses.
Procedural Defenses
Since officers initially might not know who the defendant is, many of these investigations involve lineups. This technique isn’t quite as common as movies and TV shows imply that it is, but police officers still use this tool liberally.
Some lineups are inherently suspect, mostly because they are not double-blind. Usually, lineup results are only reliable if neither the witness nor the administering officer knew the suspect’s identity. If that’s not the case, the administering officer typically gives the witness subtle hints, or even not-so-subtle hints, about which person or picture to select.
Lineups also involve Fifth Amendment issues. This provision gives defendants the right to remain silent. That right includes the right to refuse to pose for a picture or appear in a lineup.
Substantive Defenses
Alcohol-involved violent crimes are tough to prove in New York from both a factual and legal standpoint.
Alcohol impairs memory and perception. When witnesses testify about what they saw or alleged victims testify about what happened, their recollections are inherently suspect. If the trial occurs many months after the incident, which is usually the case, these individuals’ limited memories are even weaker.
Furthermore, if the defendant had been drinking, alcohol could be a legal defense. Many violent crimes, such as murder and aggravated assault, are specific intent crimes. Legally, intoxicated individuals cannot form the requisite mental state to commit these crimes.
Count on an Experienced Attorney
Violent criminal charges do not always hold up in court. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
If you were arrested for possession of prescription drugs, you should contact Frank Ciardi Law to find out your legal options.
The numbers are sobering. In 2015, the annual number of synthetic opioid overdose deaths was practically zero. By 2019, this figure skyrocketed to nearly 40,000 people. [1]Most prescription opioids, like Fentanyl, Oxycontin, and Vicodin, are much stronger and much more addictive than morphine or even heroin. Because of these dangers, police are very aggressive when it comes to drug possession arrests.
Like many crimes, these offenses have significant direct and collateral consequences. Typically, if you are arrested for possession of an opioid-controlled dangerous substance (CDS) without a valid prescription, it is a C felony (fifteen years in prison) or a D felony (maximum seven years). Enhanced charges apply in many situations. The collateral consequences are especially bad for current or future college students. These individuals may lose scholarships and other financial aid. They may also face expulsion or exclusion.
Even if you do not have a valid defense to CDS possession charges, a Rochester defense lawyer can usually resolve them successfully. Keep reading to learn more about these potential resolutions and defenses.
Pretrial Diversion
Monroe County, which is in the Seventh Judicial District, has one of the only drug courts in the Empire State outside New York City.[2] That’s excellent news for local CDS possession defendants. Drug courts are not just focused on punishment. They stress drug treatment because most people now see prescription drug abuse as a health and safety issue instead of a criminal law issue.
Between the late 1990s and early 2010s, doctors prescribed powerful opioid painkillers for root canals, sprained ankles, and other events which weren’t terribly painful. As a result, many people became addicted to them. In other words, prescription drug misuse is usually not the defendant’s fault, at least to a considerable extent.
Monroe County’s drug diversion program takes this fact into account. Program requirements vary. Generally, defendants must complete a drug evaluation and abide by its recommendations. Other program requirements usually include community service and a self-improvement class. If the defendant completes the program, prosecutors could dismiss the criminal charges.
Unfortunately, New York does not allow the expungement (erasure) of police records, except in marijuana cases. However, a Rochester defense lawyer might be able to seal the police records. That’s almost as good.
Fighting the Charges
One of the biggest benefits of pretrial diversion, other than case dismissal, is that almost everyone qualifies for it. If you have a procedural or substantive defense, you have additional options. This defense could mean a dismissal of charges, a not-guilty verdict at trial, or deferred disposition.
Procedural Defenses to Drug Possession Arrests
Prescription drug possession crimes usually involve a confession, traffic stop, or a warrant. All three areas could involve a procedural defect.
Unless police officers properly Mirandize defendants, any statements they make are inadmissible in court. Most people know that the Miranda rights include the right to remain silent, the right to an attorney, and so on. However, most people don’t know how early these rights kick in. If you do not feel free to leave and the police ask any questions, they must advise you of your rights.
Sometimes, officers find pill bottles or individual pills during traffic stops. These stops must be based on reasonable suspicion, an evidence-based hunch that the defendant has committed a specific crime. A general “s/he didn’t look right” excuse is inadequate.
Larger possession or trafficking arrests usually involve search warrants. These warrants often rely, at least in large part, on an informer’s testimony. Informers almost always receive money or leniency. Since many people will say almost anything for love or money, judges often take informer’s statements with a grain of salt.
Substantive Defenses
The substantive defense to CDS charges usually involves the legal definition of “possession” in the Empire State.
In the everyday world, possession and proximity are synonymous. I possess the cookies in my pantry, even if I am in my living room. Many police officers have this same mentality. So, if they find prescription drugs in the front seat, they arrest everyone in the car.
Legal possession is different. In addition to proximity, the state must prove knowledge and control. So, it’s possible for the defendant to literally sit on a prescription pain pill and not “possess” it legally. The state must prove possession, and every other element of the offense, beyond a reasonable doubt. That’s the highest burden of proof in New York law.
Reach Out to an Experienced Attorney if You’re Arrested for Possession
If you were arrested for possession of prescription drugs, you might not have to face the music. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Frequently, the collateral consequences of a criminal conviction are worse than the direct consequences. DWI (Driving While Intoxicated) and DWAI (Driving While Ability Impaired) are good examples. Since New York is an implied consent state, even if you are not convicted of one of these offenses, your drivers’ license could be suspended or revoked for a lengthy period. [1]It is important to learn what you can do to avoid DWI license suspension.
Briefly, DWI is driving after losing the normal use of mental or physical faculties due to substance intake or a .08 BAC level or higher. DWAI is a lesser-included offense. These charges hold up in court if the defendant was unable to operate a motor vehicle “reasonabl[y] and prudentl[y]” or had a BAC level between .05 and .07.
Sadly, many defendants are fatalistic about avoiding DWI license suspension.They feel that license suspension, especially pre-conviction suspension, is inevitable. So, they do not work with a Rochester defense lawyer in this area. These defendants miss the chance to keep their drivers’ licenses. They also lose an important legal advantage.
Suspension and Revocation
Many people believe suspension and revocation are synonymous. But when they try to get their licenses reinstated after the adverse action periods end, they find a big difference.
Suspended drivers’ licenses are temporarily invalid. Generally, drivers can reinstate suspended licenses by paying a small fee and providing proof of insurance. You must do these things to reactivate your license. Suspended drivers’ licenses do not automatically become valid when the suspension periods end.
Revoked drivers’ licenses are permanently invalid. To drive again, you must start the licensing procedure from scratch. You must provide whatever documents the DMV demands and take whatever tests the DMV requires. The aforementioned reinstatement fee and insurance requirement usually apply as well.
Generally, New York suspends licenses instead of revoking them. Occasionally, a DWI conviction could involve a revocation. A Rochester defense lawyer can usually ensure that, in all these situations, authorities suspend your drivers’ license instead of revoking it.
Avoid DWI License Suspension at The ALR Hearing
To suspend your license without a conviction, following the implied consent law, the state must prove, at an Administrative Law Hearing, that officers had probable cause to demand a chemical sample. Probable cause is a lower standard of evidence than beyond a reasonable doubt. So, it’s difficult, but not impossible, for a Rochester defense attorney to win this point in court.
Frequently, officers rely on the Field Sobriety Test results to establish probable cause. Sometimes, defendants assert their Fifth Amendment rights and refuse to perform these tests. Other times, officers inexplicably skip them. In these situations, prosecutors must rely on circumstantial evidence, such as:
Erratic driving,
Bloodshot eyes,
The odor of alcohol,
Unsteady balance, and
Slurred speech.
This evidence only proves alcohol consumption if only two or three of these bullet points are involved. It does not prove intoxication or even impairment.
Even if the Administrative Law Judge enforces the full one-year suspension, you are typically entitled to a limited drivers’ license, as outlined below. Furthermore, win or lose, a Rochester defense attorney cross-examines the arresting officer under oath. Defendants often pay hundreds or thousands of dollars for a chance to depose a police officer.
Post-Conviction Suspension
A DWAI suspension is a maximum of 90 days, and the maximum DWI suspension (or revocation) is 180 days. A Rochester defense attorney cannot challenge the suspension or its length, but an attorney can make the time much easier on you and your family.
Conditional or hardship drivers’ licenses are usually available for both pre-and post-conviction suspensions. These defendants may drive to and from work, school, the doctor’s office, and court-related activities, like probation meetings. Additionally, Monroe County gives you three hours of driving time a week to perform essential household activities.
You must complete New York’s Drinking Driver Program (DDP) to be eligible for a conditional license. Most defendants qualify for the DDP if they have not taken it within the last five years.
Contact a Dedicated Attorney
Potential DWI/DWAI drivers’ license suspension is not the end of the world. Learn how you can avoid DWI license suspension by contacting the Law Office of Frank Ciardi. Convenient payment plans are available.
