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.




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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