Yes, defendants can refuse a breathalyzer to provide chemical samples if they are pulled over on suspicion of DUI. Nationwide, about a fifth of defendants choose this path. But, since New York is an implied consent state, [1] this refusal comes at a price.
When New York drivers sign their licenses, they agree to provide chemical samples if an officer makes an appropriate legal request. So, chemical test refusal, or a chemical test failure, triggers the state’s Administrative License Revocation (ALR) process. This process could lead to drivers’ license suspension, even if the defendant is not convicted of DWI. More on that below.
Because of ALR suspension, DWI refusal cases are essentially two separate matters. In addition to the criminal case, there is a civil license suspension case. In both these matters, the potential penalties are quite severe. Therefore, your Rochester DWI attorney should be highly experienced in both these areas.
Issues Involved with the Decision to Refuse a Breathalyzer Test
Two Constitutional Amendments, the Fifth and Sixth Amendment, are a factor in chemical test refusals.
The Fifth Amendment gives defendants the right to remain silent. Silence is more than a refusal to say anything. Silence is also a refusal to do anything, such as pose for a picture or perform a DWI field sobriety test.
However, this right is not absolute. Courts have consistently held that ALR drivers’ license suspension is legal, even though the Fifth Amendment guarantees the right to remain silent. In fact, a number of states have gone a step further and passed refusal-to-submit laws. Courts have also upheld these laws, which make refusal to provide a breath or blood sample a separate criminal offense.
The Sixth Amendment guarantees the right to counsel. This right kicks in when the prosecution enters a “critical stage,” a point commonly defined as the filing of official charging documents.
Many argue that defendants should be allowed to consult with counsel before they agree or refuse to provide a chemical sample. That’s especially true since New York has a per se law. Defendants whose BAC content is above the legal limit are guilty of DWI as a matter of law. So far, this argument has fallen on deaf ears in court.
Should You Refuse a Breathalyzer Test?
Some people, including some DWI attorneys, say “no.” There is an old saying that if you fall in a hole, the first thing to do is stop digging. And, nothing good happens if you refuse to provide a chemical sample. The refusal antagonizes the police officer and could lead to drivers’ license suspension.
However, most DWI attorneys agree it’s best to refuse to provide a sample. As mentioned, New York has a per se law. So, people who provide chemical samples basically give prosecutors the evidence they need to obtain convictions. And, the state does not need your help in this area.
The ALR Hearing and DWI Attorneys
Drivers’ license suspension applies if officers had probable cause to demand a chemical sample. Generally, poor performance on the DWI field sobriety tests provides this evidence. So, if the defendant refused to perform the tests, the Administrative Law Judge might rule that the officer had no probable cause.
Alternatively, if the probable cause evidence is weak, a DWI attorney can often at least reduce the drivers’ license suspension period.
Rely on an Experienced DWI Attorney
You have a limited right to refuse to blow into a Breathalyzer. 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.
For many years, the prevailing theory was that marijuana was a gateway drug. People started smoking marijuana and then progressed to much more dangerous drugs, such as heroin and cocaine. That theory has now been thoroughly debunked.[1] As a result, many jurisdictions, including the Empire State, are reconsidering their marijuana laws. Several jurisdictions have completely legalized pot. New York has not done that, but it has come close.
So, blanket prohibition has been replaced by a very confusing network of laws. Marijuana is legal for some purposes, semi-legal in some contexts, and completely illegal in other situations. Marijuana-type products, like hemp and CBD oil, muddy the waters even further.
A Rochester drug possession lawyer is more than an effective advocate in court. A criminal defense attorney also gives clients solid legal advice, so they understand complex situations and make better choices.
Hemp/CBD Oil
Essentially, hemp is marijuana without any active ingredients. Some textile and other manufacturers use hemp, but it is almost never used for personal reasons.
Cannabidiol, or CBD oil, is a different story. There is some evidence that CDB oil, a marijuana extract, effectively treats pain, anxiety, muscle stiffness, and a few other conditions. Epidiolex, a CBD oil-based drug, has been approved for use in the United States since 2018. Today, a plethora of Cannabidiol products are available in specialty stores throughout Monroe County.
Before 2019, CBD oil was in a legal grey area, at least in terms of New York law. Since it is a marijuana extract, the substance was technically illegal. But since CBD oil contains no THC, the impairing ingredient in marijuana, there was no logical reason to ban it. Typically, if police arrested people for illegally possessing CDB oil, a Rochester drug possession lawyer could get the charges thrown out of court.
Today, CBD oil is 100 percent legal for personal, non-medicinal use. Most people ingest CBD oil directly or use it as a dietary supplement.
Medical Marijuana
Marijuana is widely regarded as a better alternative to prescription painkillers. Over the past several years, opioid painkiller overdoses have killed tens of thousands of Americans. Additionally, these substances are known gateway drugs. Many painkiller addicts move on to heroin. Marijuana overdoses have never killed anyone. And, as mentioned above, marijuana is not a gateway drug.
So, medical marijuana is legal in most states, including New York. However, the Empire State has a very limited list of conditions. Doctors may only prescribe marijuana if the patient suffers from a severe, chronic illness like:
AIDS,
Lou Gehrig’s Disease,
Cancer,
Parkinson’s Disease,
Epilepsy, or
Chronic pain which “degrades health and functional capability.”
Additionally, the condition must have a serious complication, such as seizures, severe nausea or chronic pain, or cachexia (wasting syndrome).
Recreational Marijuana and Rochester Drug Possession Lawyers
A 2019 law partially decriminalized most recreational marijuana possession matters. Possession under sixty grams (two ounces) is a violation, which is the legal equivalent of a traffic ticket. There is about a third of a gram of marijuana in a joint.[2] This law also made expungement available to people with some prior possession convictions. So, a Rochester drug possession lawyer might be able to erase your criminal record.
The “violation” designation is good news and bad news. The good news is that a violation is not a criminal offense. So, even if a judge finds you guilty, there is no criminal conviction on your record. That’s also the bad news. Since violations are not criminal offenses, many Constitutional protections do not apply. For example, violation defendants could be forced to testify against themselves in court.
Count on a Dedicated Lawyer
Prosecutors are aggressively going after accused unemployment fraudsters. For a free consultation with an experienced Rochester drug possession lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
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[1] 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.
Fraudulent unemployment claims, mostly the ones made during the coronavirus pandemic, could cost the system up to $25 billion.[1] 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.”
Legal Elements
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.[2]
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.
Alcohol and drug infractions are among the most commonly charged criminal cases in Monroe County. The prosecutions are relatively straightforward, and the penalties are quite harsh. So, these arrests and convictions give police officers and prosecuting attorneys a good chance to move up the corporate ladder. Nevertheless, these prosecutions have a number of moving parts. If a Rochester DWI attorney creates reasonable doubt on any one of these points, the defendant is not guilty as a matter of law. Furthermore, an effective defense helps an attorney successfully resolve these cases before trial. That resolution could be a plea to a lesser offense or a complete dismissal of charges.
Hiring a Rochester DWI Attorney for Drug Possession
Simple possession accounts for over 80 percent[1] of all the drug crime arrests in New York. Frequently, however, these charges do not hold up in court, especially once a Rochester DWI attorney probes the state’s case for weaknesses. For example, prosecutors must prove all three of the following points beyond a reasonable doubt:
Substance Production
Physical evidence usually requires either a search warrant or a search warrant exception. Most drug possession cases rely on a search warrant exception, such as consent or a plain view seizure. The state has the burden of proof on this element.
Establish Its Illegality
This prong of a drug possession case is often a problem for the state in marijuana possession cases. Hemp, which is 100 percent legal, is physically indistinguishable from marijuana. If the state has no conclusive chemical-proof the substance was illegal, its case falls apart like a house of cards.
Establish Possession
In the everyday world, possession is synonymous with proximity. But a court of law is different. In addition to proximity, the state must prove knowledge and control. These elements are difficult to prove if the defendant was a backseat passenger in a car, or if the defendant was a guest in a house and drugs were in a closet.
Prosecutors often rely on circumstantial evidence, like the quantity of drugs and the presence of firearms, to upgrade possession charges to drug trafficking or distribution charges. Multiple defenses are available in these cases as well.
Illegal Alcohol Consumption and How a Rochester DWI Attorney Can Help
The coronavirus pandemic has significantly affected laws regarding public alcohol consumption. For example, sometimes cocktails to go are legal, and sometimes they are not.
Police officers often take advantage of this confusing legal situation. Frequently, officers take a “tell it to the judge” approach. They make illegal consumption arrests regardless of the laws in place at the time. As a result, the defendant might not even know the arrest was illegal.
Illegal alcohol consumption is a low-level misdemeanor which frequently involves no jail time. So, many of these defendants think they do not need a Rochester DWI lawyer. These individuals overlook the fact that these convictions often have substantial collateral consequences.
Driving While Intoxicated
New York Governor Andrew Cuomo recently declared July 2020 to be an enhanced DWI enforcement month.[2] So, officers are now more aggressive than ever in this area.
Legally, the state can prove intoxication, or a loss of physical or mental faculties, via direct or circumstantial evidence. Both sources of evidence have weaknesses that Rochester DWI lawyers can exploit.
Breathalyzer tests are far from perfect. Unless police officers carefully calibrate these gadgets, they are effectively useless. Additionally, things like a high mouth alcohol level, and recent alcohol consumption often skew the result.
The Field Sobriety Tests, which are the primary circumstantial evidence in a DWI case, are even shakier. The DWI eye test is a good example. Officers have suspects track moving objects with their eyes, without moving their heads, to look for signs of nystagmus. But roadside tests do not happen in controlled environments. And, many things other than alcohol cause nystagmus, a condition also known as lazy eye.
Reach Out to an Aggressive Rochester DWI Attorney Today
Drug and alcohol prosecutions are very common in New York. For a free consultation with an experienced Rochester DWI attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
In 1641, the Massachusetts Bay Colony enacted America’s first animal cruelty law. A section of the Body of Liberties decreed that “no man shall exercise any Tirranny or Crueltie towards any Bruite creature which are usuallie kept for man’s use.”[1] Despite this long history, many communities at least tolerate animal cruelty.
Today, most of New York’s animal cruelty laws are in Article 353 of the Agriculture and Markets Law. Almost all these violations are misdemeanors. That could mean up to a year in jail, along with a substantial fine. Additionally, these offenses are usually crimes of moral turpitude. So, a conviction could have substantial collateral consequences.
If you face these charges, you need an effective defense attorney Rochester, NY. Most New York animal cruelty laws are quite subjective, so they are difficult to prove in court. And, since these offenses are misdemeanors, the state must prove every element of every offense beyond a reasonable doubt. That’s the highest-burden on proof in New York law.
1. Animal Neglect and Abuse Requiring a Defense Attorney Rochester NY
This offense might be the most commonly charged misdemeanor animal cruelty law in New York. Several provisions in the Agriculture and Markets law prohibit a wide range of activities, such as:
Overworking,
Cruelly beating,
Torturing,
Failing to provide food or water,
Cruelly carrying an animal,
Placing objects on the street, like glass or nails, that could injure animals, and
Injuring without justification.
Some of these offenses have some built-in defenses. For example, there is a difference between beating an animal and cruelly beating an animal.
On a related note, dogfighting and cockfighting could be a misdemeanor, depending on the defendant’s level of participation. Watching and betting is not as bad as sponsoring or breeding.
2. General Abandonment
It is a misdemeanor to abandon animals who are so unhealthy or injured that they might not live much longer. Individuals may abandon healthy animals when they relocate or if the animals are incorrigible. Such conduct might arguably be immoral, but there is a difference between illegal and immoral. Jurors often blur this line, so a defense attorney Rochester, NY must clearly draw it.
3. Automobile Abandonment
Animal abandonment law in New York is a bit complex. It is a misdemeanor to abandon an animal in a vehicle if the weather is extremely hot or extremely cold. If the outside temperature is 85, temperatures inside the car exceed 130 degrees after twelve minutes.[2] If authorities respond, they are not liable for any injury the animal sustains or any damages the owner suffers.
4. Unsheltered Animals
This law is complex as well. If an animal, usually a dog, is outside with no way to get in and the weather turns bad, the animal must usually have the following:
Waterproof roof,
Shade,
Insulation, and
Movement room.
“Bad weather” could include rain, heat, snow, wind, and almost anything other than clear and 75 degrees. In these cases and other animal cruelty cases, authorities have the right to permanently seize the afflicted animal.
5. Declawing, Tattooing, Piercing, and Clipping
Did you know it’s against the law in New York to declaw a cat unless the procedure is medically necessary? It is also illegal to tattoo a dog except for identity purposes. And, only veterinarians can clip dog ears, only if the animals are sedated.
Reach Out to Frank Ciardi Law, Defense Attorney Rochester NY
New York has a diverse array of animal cruelty laws. For a free consultation with an experienced defense attorney Rochester, NY contact the Law Office of Frank Ciardi. Convenient payment plans are available.
