Lawyers and drunks, to me! DWI in New York....ASKING FOR A FRIEND!

[grumbler]

I'm going to mongers for all my legal advice from now on!

In this, as in all else, his advice is invaluable and infallible...


...so long as you do the exact opposite of what he recommends! 

[Barrister]

Seriously, I really am asking for a friend. I don't really drink much, and almost never to intoxication, and sure as hell don't drive.

But a friend of mine did. DWI limit in the state is .08, and they blew .09. Charged with DWI.

Trying to help them figure out what they need to do. I am assuming a lawyer is necessary, but the cost of that is high - thousands? I don't even know.

What is the delta between hiring a dedicated DWI lawyer, and trying to handle it yourself?

Anyone know of anyone in New York (supposedly some of the harshest DWI laws in the country) who has gone through this? Or know actual lawyers?

There are so many online places with advertising, but no real way to actually evaluate them comparatively. At least not that I can tell. I am going to ask my lawyer tomorrow if they can recommend someone.

Facts of the case:

Failed FST
Failed breathalyzer with .09 reading.
First time offender
No other criminal history

I am thinking what they should be hoping for is to get the charge reduced as part of a plea bargain to the lower DWAI charge, which is a traffic violation rather than a misdemeanor?

Okay, having run at least 100 impaired trials in my time, I feel like I have to give a response here.  Obviously, the specifics of the law are going to be different on the other side of the border, but the science is identical.

Impaired driving is an incredibly complicated area of the law.  Not so much because of the science (it's relatively straight-forward) but because it's one of the areas of criminal law where people with money get charged, so they hire lawyers and the caselaw all gets very convoluted.  The delta between trying to handle it yourself, versus hiring a dedicated lawyer is massive - if you're trying to fight it.

I absolutely would recommend your friend at least consult with a lawyer to find out his options.  It's always possible that the lawyer sees an obvious problem with the file, and can convince the DA to drop the case entirely.  It's also possible the lawyer can negotiate a plea to a traffic offence, which is obviously in your friend's best interests.

However taking the case to trial gets really expensive.  I don't know the market in upper New York, but around here hiring someone really good could cost you $10k or more.  And for all of that the best the lawyer can say is you have a chance at beating the charge.  I can tell you I find impaireds annoying to run, but at the end of the day I have a good conviction rate even against the so-called "experts".  That's because if there is a problem with my case I don't run it, but that means the cases I run don't have any problems.

And a note about plea deals: this is absolutely going to be specific to your jurisdiction, but I know in Alberta attitudes have hardened.  Around here it used to be routine for impaireds to be pled down to the TSA offence of "careless driving".  But that caused a lot of problems - insurance companies started treating a charge of careless driving as if it was an impaired!  So about 10 years ago we were given a directive - no plea deals.  If you had a problem with your file you had management's blessing to just kill it.  But otherwise, we expect a plea to the charge as laid, and will run every trial if we have to.

I do find it interesting that your friend is charged with a 90 reading.  I can tell you in Alberta we absolutely do prosecute 90 readings, but I know some other jurisdictions do not.  The analysis gets very technical: the machines are built with a +/-10 error range, so some jurisdictions say (well that 90 could be an 80), but the counter-argument is the machines will truncate all readings, so that 90 could have been anywhere between 90 and 99, so +/- 10 doesn't really come into it.

So, my advice is this:

Your friend should absolutely consult with an experienced defence lawyer.  He should find out if a plea to a lesser offence is an option or not.  He should find out if there are any meaningful defences to the charge as laid, and get a quote as to the price.

But your friend should be prepared that his best option (after consulting with counsel!) might be to just suck it up and enter a plea.  The implications of getting convicted of an impaired are serious but not insurmountable, and might be better than handing over a lot of money to a lawyer who may or may not be able to beat the charge.  And if you're going to lose your license for a period of time, it may be better to just get that over with right away, instead of dragging out a trial date and then losing your license.

And by the way, if your friend is just entering a guilty plea, that can be done by yourself.  A 90 reading is going to attract whatever the minimum penalty is (as long as there was no accident or bad driving pattern), so your friend just needs to be able to stand up in court and say he's learned his lesson and will never do this again.

[The Minsky Moment]

  It's also possible the lawyer can negotiate a plea to a traffic offence, which is obviously in your friend's best interests.

That's the goal here and he will likely need a lawyer who knows what he is doing to get there. As BB says, a .01 differential may allow him to raise issues about equipment tolerances. While typically a loser argument where someone is well over the number, it may have some legs here, perhaps enough to plead to a lesser charge.

My understanding in NY state (various jurisdictions) is that plea deals are ubiquitous but all that experience is with various traffic offenses not DUI/DWI.  I really don't know much about the latter are handled.

[The Minsky Moment]

Some recent law on breathalyzers in NY
https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-28068.html

As you can see there are some angles here to pursue especially at 0.09 reading.  It's quite possible that the State might take a plea to a lesser offense rather than litigate the equipment issues.

[The Minsky Moment]

Here's a more favorable recent case where the Court granted the requested equipment discovery, highlighting the fact that the .10 reading was close to the .08 limit

https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-28169.html

Discovery of the data related to the preparation and testing of the simulator solution is particularly important in the instant matter inasmuch as the Intoxilyzer machine registered a reading of defendant's blood alcohol content to be .10%, which is only .02% above the legal limit under VTL § 1192(2). Therefore, logically, if the simulator solution used in this matter was not measured and tested properly, such procedural defects could have a considerable impact on the reliability of defendant's Intoxilyzer breath test result.

[Barrister]

Here's a more favorable recent case where the Court granted the requested equipment discovery, highlighting the fact that the .10 reading was close to the .08 limit

https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-28169.html

Discovery of the data related to the preparation and testing of the simulator solution is particularly important in the instant matter inasmuch as the Intoxilyzer machine registered a reading of defendant's blood alcohol content to be .10%, which is only .02% above the legal limit under VTL § 1192(2). Therefore, logically, if the simulator solution used in this matter was not measured and tested properly, such procedural defects could have a considerable impact on the reliability of defendant's Intoxilyzer breath test result.

It's amusing to me - so much of the legal language is completely different from what I do, but the substance of the argument is identical.

This case illustrates why fighting an impaired can be so damn expensive, and still no guarantee of a positive outcome.  SB's lawyer made an application to disclose information relating to the making and testing of the simulator solution.  The state fought, and the judge ruled that the state had to disclose.  But this doesn't end the matter!

Now what will happen is that SB's lawyer is hoping the state can't or won't produce the information, and if they can't then the case will be dismissed.  But if the state does, then the lawyer has to hope some discrepancy is found.  If a discrepancy is found, they'll need to hire an expert to testify about it.  And if there is no discrepancy, then they're no further ahead after going through a chunk of the client's money.

[The Minsky Moment]

SB was also driving 31 mph over the limit, that might have influenced the prosecutor's decision to push the case.  The hope for Berkut's friend is that if there aren't other such circumstances and this is a first time offender they might accept a plea.

[Berkut]

OK, so I talked to my lawyer (not a criminal specialist).

THey said that give the .09 reading, they think there is a pretty decent change it can get plead down from DWI to DWAI. Which is still a driving under the influence charge, but has MUCH less penalties associated with it.

$500 fine versus $1000
90 day license suspension instead fo 180, and you can get a hardship conditional license.
No mandated breathalyzer in your car bullshit (which is mandated by law in NY for an actual DWI conviction - that adds another $1000 for the install, and $100/month for the "rental" - what a fucking scam that is).

So that will certainly be the approach.

My lawyer offered to handle the case, and said he has handled "lots and lots" of DWI cases. But he isn't a criminal defense attorney, nor is he a DUI specialist. He is, however, about half the cost of an actual DUI specialist (est 1500-2550 versus 3500-5000), and he says this is pretty routine, and there isn't much more an actual DUI specialist could do in a simple case without injuries or even an accident.

Im not sure whether or not to advise them to go with a actual DUI criminal defense attorney or not.

[Berkut]

And the reason they pulled them over was that they swerved to avoid a pothole, and the officer said they were swerving.

Given that they were clearly intoxicated, I told them that they should look at this as one of the least painful outcomes of deciding to get behind the wheel after drinking.

[Barrister]

My lawyer offered to handle the case, and said he has handled "lots and lots" of DWI cases. But he isn't a criminal defense attorney, nor is he a DUI specialist. He is, however, about half the cost of an actual DUI specialist (est 1500-2550 versus 3500-5000), and he says this is pretty routine, and there isn't much more an actual DUI specialist could do in a simple case without injuries or even an accident.

Im not sure whether or not to advise them to go with a actual DUI criminal defense attorney or not.

That will be a decision for your friend to make.

As a prosecutor, I've had lots of bad experience with "dabblers".  They just don't know what they don't know.  Criminal law is pretty complex, and impaired driving law is doubly so.  And while your lawyer said he could "handle" the case, I'm willing to bet the way he handles them is by entering pleas (either as charged or to a lesser charge), which as I mentioned is actually something your friend could do all by himself.

In any event what your friend needs to do is get disclosure (or whatever you call it down there).  It's a copy of the Crown's case, er, the DA's case.  Get a lawyer to review that disclosure to see if there are any possible defences.

[mongers]

I'm going to mongers for all my legal advice from now on!

In this, as in all else, his advice is invaluable and infallible...

...so long as you do the exact opposite of what he recommends! 

Hilarious, you certainly know how to knock up dead.

[The Minsky Moment]

It's probably worth checking out a specialist to see whether there is a realistic possibility to pleading to something to a non-drinking traffic offense, what the benefit would be, and how much that would cost.

[mongers]

Do routine petty criminal or people found fiddling food stamps/welfare checks have all of these legal avenues?

[Admiral Yi]

Do routine petty criminal or people found fiddling food stamps/welfare checks have all of these legal avenues?

Probably not challenging the breathilizer. 

[Habbaku]

No mandated breathalyzer in your car bullshit (which is mandated by law in NY for an actual DWI conviction - that adds another $1000 for the install, and $100/month for the "rental" - what a fucking scam that is).

Doesn't seem like much of a scam to me. Just buy your own breathalyzer for your car and stop renting it!