Tuesday, November 3, 2015

Too Drunk to be Convicted of Drunk Driving???


Article: http://www.ledger-enquirer.com/opinion/article41982711.html     

     Apparently the current DUI/DWI law in Georgia is very pro-defendant and permits for the suppression of BAC chemical test results if the defendant was too drunk to provide informed consent for the test!

     So, in other words, if you’re going to drive drunk in GA, you better make damn sure you’re a fall-down, can’t-think-straight kind of drunk so you’ll have a better chance of beating your DWI!

     Seems…counterproductive? Illogical? Or maybe just downright dangerous?!

     Rest assured, that is most definitely NOT the case in New York. That issue was resolved here as far back as 1978. Consent or refusal to provide a sample for a chemical test in New York does not need to be “knowing,” according to the Second Department: “[such an] interpretation would lead to the absurd result that the greater the degree of intoxication of an automobile driver, the less the degree of his accountability.” Matter of Carey v. Melton, 64 A.D.2d 983, ___, 408 N.Y.S.2d 817, 818 (2d Dep’t 1978).

     While many people would agree that if you’re that drunk there’s no way you know what you’re doing (and some of us may even have the stories the back that theory up!), but to old otherwise would truly run the risk of unconscionable results in very serious cases.  

     NOTE: Refusal to consent to chemical test can be determined from both words and conduct in New York. And if the police decide you have refused, there will be a presumption of intoxication and the prosecutor will, in most cases, be able to introduce evidence of your refusal as your consciousness of guilt at any subsequent trial. There are also significant civil penalties if you have been declared a refusal by the DMV. Also, in order to be prosecuted for DWI in NY, your intoxication must be voluntary. If you have any reason to believe that your intoxication was involuntary, discuss that with you attorney immediately. However, alcoholism does not constitute involuntary intoxication under NY law.

     For more information DWI refusals, click here.

     If you have been arrested for DWI or any other alcohol or drug related driving offense in New York, call the experienced DWI defense attorneys of Catalano & Carpenter LLP at (845) 454-1919 today to schedule a free DWI consultation. The sooner we get involved, the sooner we can help. 

Monday, November 2, 2015

Driving While Ability Impaired (DWAI) Is Not a Criminal Offense…Until It Is!

Alcohol and/or drug related driving offenses in New York State run the spectrum from violation level offenses (non-criminal) all the way up to class D felonies punishable by up to seven (7) years in state prison.

In DWI cases that should never see the the light of trial, DWI defense attorneys will typically do everything within their ability to convince the prosecutor and the court to accept a plea to a reduced offense, and, in most cases, Driving While Ability Impaired (“DWAI” or just “AI”) in violation of VTL Sec. 1192.1 is the goal. That’s because a DWAI is, in most cases, a traffic infraction (a violation) that does not result in a criminal conviction (although there are still fines, surcharges, program requirements, license sanctions, and a possibility of up to 15 days in jail). Click here for more information on DWAI.  

However, there are instances when an AI may be prosecuted as a misdemeanor, resulting in a criminal record if convicted, as well as a potential period of incarceration and/or probation in addition to the fines, surcharges, program requirements and license sanctions. 

If you are convicted of an AI offense after having been convicted within the preceding five (5) years of one (1) prior alcohol or drug related driving offense as defined in VTL Sec. 1192 (e.g., DWAI, DWI, Agg DWI, DWAI-Drugs), it will still be a conviction of a traffic infraction but with more substantial fines and penalties than the first time around. 

BUT! If you are convicted of an AI offense within the preceding ten (10) years of having been convicted of two (2) prior alcohol or drug related driving offenses as defined in VTL 1192, that new AI can be prosecuted as a misdemeanor! So long story short, two AI strikes and you’re out! And unless you've read this article or the NYS VTL - and who does that other than attorneys - you really wouldn't have a reason to know this!  

But not knowing about this enhanced prosecution possibility, or worse, hiring an attorney who doesn’t know about it because he or she is not an experienced DWI defense attorney, can catch you by surprise if you have prior convictions. And no one wants to be surprised when it comes to their license, livelihood and life! 

            Also keep in mind that Driving While Ability Impaired by Drugs ("AI-Drugs"), defined in VTL Sec. 1192.4, is NOT the same as DWAI (VTL Sec. 1192.1). If you are arrested for and charged with a violation of AI-Drugs, you are fighting a misdemeanor from the get-go. And the consequences of an AI-Drugs conviction are significantly different from a misdemeanor DWI conviction, and a LOT different from an AI conviction. 

DWI is a serious charge with serious consequences. If you have been arrested and charged with DWI or any other alcohol or drug related driving offense in New York State, call the experienced DWI defense attorneys at Catalano & Carpenter LLP at (845) 454-1919 today! The sooner we get involved, the sooner we can help.