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.
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.
Most criminal lawyers in Rochester NY deal with many illegal weapons possession cases due to New York’s strict laws in this area. However, only a handful of lawyers have what it takes to resolve these cases successfully. Basically, a lawyer must be a good negotiator and have the litigation skills to back it up. Most criminal defense attorneys and public defenders only have one of these skill sets.
The right to keep (own) and bear (carry) firearms are guaranteed in the Second Amendment.1 However, lawmakers have great power to regulate these things. For the most part, New York law doesn’t restrict gun ownership. But it does greatly restrict the ability to carry a weapon.
For example, New York is a may-issue state. Even if an applicant meets the minimum qualifications for an NYPL (New York Pistol License), local law enforcement may refuse to issue a permit. Additionally, for the most part, New York gun permits aren’t valid in nearby states, and vice versa. So, it’s little surprise that New York has one of the fewest numbers of gun permits per capita in the country.
Procedural Defenses that a Criminal Lawyer in Rochester NY May Argue
Possession cases, including illegal weapon possession cases, usually involve procedural defenses. Specifically, officers typically need search warrants before they can seize contraband. Search warrants must be based on probable cause. Generally, police officers collect evidence in lengthy investigations until they have enough proof to convince a judge to issue a search warrant.
Most gun possession cases don’t involve lengthy investigations. Typically, police officers stop people on unrelated grounds and find an illegal weapon during the course of a very brief investigation. Therefore, the seized property is inadmissible in court unless a narrow search warrant exception applies. Some examples include:
Plain View:
This exception often applies to automobile stops. Most criminal cases begin when an officer pulls over a motorist for speeding or another traffic violation. As the officer peers inside the vehicle, the officer may seize any contraband in plain view. This exception only applies if the stop itself was legal.
Automobile Exception:
For many years, police officers claimed they smelled marijuana and then searched vehicles under the automobile exception. This assertion, which was almost impossible to prove or disprove, served as the probable cause that evidence of a crime was in the car. Now that marijuana is legal in New York, at least for most purposes, this exception doesn’t come up much.
Consent:
Property owners, or apparent owners, may give officers verbal consent to search their belongings. This consent must be affirmative and voluntary. “I guess I can’t say no” is not affirmative consent. Additionally, if officers threaten to get warrants if owners don’t consent, the agreement is arguably coerced.
On a related note, what should you say if an officer asks if you’re carrying anything illegal? There’s a healthy debate among criminal lawyers in Rochester as to the proper answer.
Usually, the best response is an honest response. Most likely, the officer will find the illegal item anyway. Furthermore, there’s an old saying that if you dig yourself into a hole and you want to get out, you must first stop digging.
Substantive Defenses
Illegal gun possession criminal charges are difficult to prove in court. Prosecutors must prove all three elements of possession, which are proximity, knowledge, and control.
The aforementioned automobile cases are a good example. Proximity is normally straightforward. According to New York criminal justice laws, if an item is in the passenger area, it satisfies this requirement, even if the item isn’t within arm’s reach.
Knowledge and control are different. If Tom is in the front passenger seat and a gun is under the back driver’s side seat, Tom arguably didn’t control the gun. That’s especially true if someone was sitting in that seat. Knowledge could be an issue under these facts as well. If Tom was a passenger, he may not have known the other occupants very well, which means he may not have known about the hidden gun.
These arguments may seem far-fetched to some. But a criminal lawyer in Rochester NY doesn’t have to “prove” anything. Criminal defendants must only poke enough holes in the state’s case to create reasonable doubt.
Get Help from a Qualified Criminal Lawyer in Rochester NY
Illegal weapons possession charges often don’t hold up in court. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
About Drug Charges in Rochester, NY For College Students
Students at any of the nine colleges in Rochester, NY should be aware of the risks of drug charges for possession. A few college-age drug arrests are large drug trafficking matters. Sometimes a college student is near the top of the pyramid, and sometimes, a student is a mule.
On the other end of the scale, a few college-age drug arrests are PODP (possession of drug paraphernalia) matters. Police usually press these charges when they suspect drug use but cannot prove anything more serious. Drug possession arrests, which account for almost 90 percent of the drug crimes in New York, are in the middle. So, we’ll focus on drug possession arrests in this post for the most part.
Drug possession crimes are notorious for their harsh direct and indirect consequences. Even a misdemeanor drug possession conviction usually means a high fine and extended court supervision. These indirect consequences could include loss of financial aid, academic probation, or even expulsion for college students. A Rochester criminal defense attorney is well-positioned to reduce or eliminate these harsh negative consequences.
Academic Disciplinary Proceedings
Colleges and universities often launch disciplinary proceedings following a drug possession arrest or, more frequently, after a drug possession conviction. The possible sanctions usually include loss of financial aid, academic probation, removal of privileges, like dismissal from a fraternity or sorority, or even dismissal from the institution.
Before the college or university takes such action, the institution usually must give the student notice of the proceedings and an opportunity to be heard. That’s especially true at public colleges and universities. Private universities are not technically subject to the Fourteenth Amendment’s due process of law clause.
These disciplinary hearings are usually a lot like sentencing hearings. Judges typically don’t want to hear about extenuating circumstances at a criminal court sentencing hearing. Instead, they want to hear defendants are sorry for the way they acted, they have made some life changes, and they won’t make the same mistake twice.
Some disciplinary matters are a bit different. For example, some federal financial aid programs disqualify applicants with criminal convictions. As outlined below, a Rochester criminal defense lawyer can take care of the conviction record even if the defendant pleads guilty. So, when students are asked if they have prior criminal convictions, they can honestly answer “no.”
Criminal Proceedings
Frequently, the best defense is a good offense. That aphorism is true in this context. An aggressive defense in criminal court is usually the best way to deal with academic disciplinary proceedings. Drug possession cases have three basic requirements:
Produce the Substance: Police officers rarely have search warrants when they make drug possession arrests. Therefore, a narrow search warrant exception, such as contraband in plain view or owner’s consent to search, must apply. The state must prove the exception was legit.
Prove it was Illegal: You cannot judge a book by its cover. Substances that look like drugs aren’t always drugs. In 2019, a Georgia college student was arrested for cocaine possession. A laboratory test proved the “cocaine” was actually bird poop.
Establish Possession: Proximity by itself doesn’t establish possession in a New York criminal court. The state must also prove knowledge and control. These additional elements are very difficult to prove, especially in automobile drug possession cases. It’s not easy to connect a defendant in the back seat with drugs under the front seat.
Prosecutors must establish all three points beyond any reasonable doubt. That’s the highest burden of proof in New York law. Circumstantial evidence alone usually isn’t enough, especially regarding the last two bullet points.
Post-Conviction Relief
New York has a very limited record expungement and sealing law that doesn’t apply to most drug possession cases. But defendants still have legal options in this area.
We talked about one such option above. Judges have almost unlimited discretion to grant deferred disposition probation instead of regular probation. If the defendant successfully completes deferred disposition probation, the judge dismisses the case, so there’s no conviction record.
Probation is easier to complete if the judge cuts probation short successfully. Once again, judges have a lot of discretion in this area.
According to the New York Code of Criminal Procedure, a judge could sentence a defendant to probation one day and discharge probation the next day.
Many college students and other defendants don’t think an executive pardon is a legitimate option. But the facts suggest otherwise.
Former President Barack Obama pardoned thousands of former drug possession defendants. Suppose a New York governor feels that drugs are a health and safety issue instead of a criminal law issue, and many people feel this way. In that case, an executive pardon is a real possibility.
Concerned About Drug Charges in Rochester NY? Consult An Experienced Attorney
Drug charges need not derail your college career. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. Virtual, after-hours, and jail visits are available.
A Rochester Criminal Attorney Explains Social Media as Evidence
We all know social media is a big part of our lives. The average American spends over two hours a day on platforms like Facebook and Instagram. Social media can be a great way to stay in touch with people, but it can also be dangerously addictive. Social media use in criminal court is also a double-edged sword. Either a prosecutor or a Rochester criminal attorney could effectively use posts, likes, photographs, and anything else on social media.
However, the purpose of the social media evidence is different depending on who is using it. Prosecutors must use evidence to prove doubt beyond any reasonable doubt. Defense attorneys must only create a reasonable doubt in the mind of a single juror.
Applicable Laws for Social Media as Evidence
Various laws protect internet privacy and regulate social media content. However, most of these laws protect personal information, like date of birth, Social Security number, financial information, and IP addresses. Other laws address objectionable or illegal content. But for the most part, especially in terms of social media, pretty much anything goes.
Online reviews are an excellent example of the internet free-for-all. Anyone can post a positive or negative restaurant review. Frequently, highly positive reviews are paid reviews, and extremely negative reviewers didn’t eat at the restaurant.
As a result, authenticating social media posts for use in criminal court is far from straightforward. More on that below.
How Prosecutors Use Social Media Evidence
The state could use social media posts for almost any purpose. Commonly, prosecutors use it to establish intent.
Domestic assault is a good example. Defendants often argue that they didn’t intentionally injure an alleged victim. Sometimes, people really do trip and fall down the stairs. Savvy prosecutors often use prior social media posts to undermine that defense. If Eddie posted negative remarks about his wife before “she accidentally fell,” that defense isn’t nearly as compelling, especially in jurors’ eyes.
New York’s hate crime enhancement is another example. Prosecutors often use this law to charge offenses that are typically misdemeanors, such as ordinary assault, as felonies. Prior posts and likes that indicate hatred toward a protected class could be relevant in this area. Protected classes in New York include gender, national origin, ethnicity, disability, and sexual orientation.
Prosecutors cannot use social media posts to show prior bad acts, like the classic guns, money, and drug selfies. Furthermore, the information they use is subject to authentication requirements. We’ll discuss this point further in a minute.
How a Rochester Criminal Attorney Uses Social Media Evidence
Prosecutors cannot use incriminating photos or posts as evidence of guilt, but a Rochester defense attorney can use such posts to establish an alibi. Social media photos are always time and date-stamped. An obscure detail, like part of a sign in the background, frequently makes a big difference. Once again, a defendant doesn’t have to “prove” anything. A defendant only must create reasonable doubt. So, the social media picture or other post doesn’t need to prove the defendant’s innocence. The standard of evidence is much lower.
Defense attorneys can also use social media pictures, likes, and posts to undermine witness credibility. As mentioned previously, these posts cannot serve as evidence that a witness is a bad person. Technically, a Rochester defense attorney uses this evidence to prove what the witness said, not to prove what the witness said was true.
Now, for the authentication question. Even though platforms like Twitter and Facebook have been around for a decade or more, New York’s rules of evidence haven’t been updated to include social media authentication rules. So, courts usually make their own rules.
Some judges liberally allow prosecution or defense to use social media posts. However, other Monroe County judges are very suspicious of electronic evidence in general and social media evidence in particular.
Usually, social media posts are presumptively authentic. In other words, the judge assumes that the account owner posted the content.
The other side may refute the presumption with evidence the defendant shared their password or evidence the account was hacked.
The type of use could be important. Prosecutors who try to admit social media evidence as proof of intent often have a more challenging time authenticating evidence than defense attorneys using it to create reasonable doubt.
Consult An Experienced Rochester Defense Attorney
Social media posts can be evidence in court. For a free consultation with an experienced Rochester defense attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
During coronavirus lockdowns, DUI enforcement dropped off to almost nothing, at least in many areas. At the same time, drinking and driving increased significantly. Now, COVID-19 lockdowns are distant memories. So, aggressive enforcement is back, and the consequences of felony DUI charges in NY are significant. Yet many motorists in the Empire State continue to drink and drive. As a result, New York has one of the highest DUI arrest rates in the country.
DUI arrests have direct consequences, such as extended court supervision and collateral consequences, such as lengthy drivers’ license suspension. These adverse effects are even worse for felony DUI charges in NY. Probation is usually longer, and license suspension is also typically longer. Suspension may even be permanent in many cases.
Each felony court in Monroe County has a team of prosecutors determined to convict as many defendants as possible for the harshest crimes possible. Only an equally determined Rochester DUI lawyer can level the playing field and successfully resolve felony and other criminal cases. This successful resolution usually involves reducing felony DUI charges to misdemeanor charges.
Felony DUI Charges
Generally, prior convictions boost misdemeanor DUI charges to felony charges. Occasionally, prosecutors use aggravating circumstances, primarily severe injury or fatal collisions, to elevate DUI charges. Both forms of felony cases have proof issues that a Rochester DUI lawyer can exploit.
As for prior convictions, two priors in the last ten years usually raise misdemeanors to felonies. Generally, prosecutors must introduce certified copies of the prior conviction records in court.
Frankly, if the prior convictions were both in New York, certified copies are usually available and reliable. But that’s often not the case. Most people relocate frequently. That’s especially true if they have had some trouble with the law and want a fresh start. Out-of-state criminal records requests are usually very low on bureaucrat’s priority lists. These individuals reason that the defendant is another state’s problem.
Additionally, not all DUIs are created equally. Many states have an offense like OWI or operating while impaired. This infraction is not the same as DUI. So, the conviction record might not be relevant in New York for felony upgrade purposes.
As for DUI collision cases, these matters are notoriously difficult to prove in court. Many Monroe County prosecutors are unfamiliar with these cases with additional moving parts.
Specifically, the “driving” element of driving under the influence case is often troublesome. Generally, when emergency responders arrive at an accident scene, the defendant has exited the vehicle. So, one of two things must happen: either the defendant admits to the officer that they were driving, or an independent witness must have seen the defendant behind the wheel. Frequently, such proof is unavailable.
General DUI Defenses
Several procedural and substantive defenses are usually available in DUI cases, whether they are misdemeanors or felonies.
Illegal detention is usually the best procedural defense. Before an officer pulls over a motorist, the officer must have reasonable suspicion.
That’s an evidence-based hunch. It is not a hunch based on evidence. If Officer Jones suspects someone may be intoxicated and Officer Jones tails them until they commit a traffic violation, that’s not reasonable suspicion. That’s profiling someone.
Alternatively, an officer might detain a motorist at a DUI checkpoint. These roadblocks are only legal in New York if they fully adhere to strict rules.
Substantive DUI defenses usually involve intoxication. In about 80 percent of these matters, prosecutors rely on chemical samples, mostly breath samples, to prove intoxication. Like all other machines, Breathalyzers are not 100 percent reliable all the time. For example, these sophisticated devices require constant recalibration. Most judges throw out Breathalyzer results unless a maintenance record verifies their accuracy.
In the other 20 percent of DUI cases, prosecutors must rely on circumstantial evidence to prove intoxication. The field sobriety tests, such as the horizontal gaze nystagmus test, usually provide this evidence.
The FSTs are even more uncertain than chemical test results, as the HGN test illustrates. Intoxication is only one possible cause of nystagmus. This condition, which is also called lazy eye, is widespread. In fact, many people have a lazy eye, but they do not know it because the symptoms are so mild. So, these individuals automatically fail HGN tests, whether they are drunk or sober.
Get Your Free Consultation With a DUI Lawyer
Misdemeanor DUI charges are bad, but felony charges are even worse. For a free consultation with an experienced Rochester DUI lawyer, contact the Law Office of Frank Ciardi. After hours, virtual and jail visits are available.
