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.


[1] http://www.courts.state.ny.us/JUDGES/evidence/10-BEST-EVIDENCE/ARTICLE%2010%20RULES.pdf

The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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