Happy 2016 from Catalano & Carpenter LLP!!!

A new year! A time for new exercise routines, getting organized, re-evaluation, and new beginnings!

Don’t start your new year and the first day of the rest of your life off with a DWI arrest, or worse!

Just like every other year, law enforcement officers will be out on increased DWI patrols this holiday. They will be looking for even the smallest reason to pull someone over on the off-chance that person is intoxicated. You know it. Everyone knows it. You’ve seen them out there before. Maybe they’ve even pulled you over in years past for whatever reason. So why be that person this year? You’re smarter than that.

Think you’re good enough to avoid being pulled over? There will also undoubtedly be sobriety checkpoints around. Funny thing about checkpoints, cops like to set them up in a location that limits your ability to avoid it. And flipping a u-turn before you get to it WILL draw the cop’s attention to you.

Personally, I’m not a huge New Year’s Eve fan. I prefer to stay in, have a nice dinner, watch some football, and maybe have a drink or two without the stress of having to drive or be on the road with those people who have no respect for anyone else and are driving while intoxicated. But I get it, it’s a fun holiday! A reason to celebrate! So if you are going out, be sure you have a designated driver (and be sure that DD doesn’t sneak a few drinks), or have money for a cab, or walk, or sleep where you pass out. Just don’t drive after you’ve been drinking.

The consequence of a DWI arrest – before you’ve even been convicted of anything – are severe. They include, at a minimum, suspension of your license or privilege to drive and the significant expenses of 1) obtaining a conditional license, 2) obtaining a substance abuse evaluation and 3) hiring a DWI defense attorney. You’re already looking at several thousand dollars right there, just from being arrested.

And if you’re convicted, forget about it. That’s at least another several thousand dollars in fines, surcharges, fees for classes, another conditional license, the ignition interlock device, DMV administrative fees and the damage to your insurance. Those commercials that get your attention by warning you that even your first DWI can cost you around $10,000 are pretty accurate!! Save yourself the trouble and the money.

Make 2016 your best year yet! Don’t start it in jail, in debt and embarrassed. 

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. 

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. 

You Can Huff and You Can Puff, but Sooner or Later the Legislature Will Blow Your House Down!

     Although this case/decision is out of Montana, it's still relevant to DWI law here in NY. Long story short, the issue before the court in Montana was whether an ingredient in an aerosol product that allegedly causes impairment (from huffing) but does not clearly fit within the definition of a “drug” under Montana law can still serve as a “drug” for purposes of a DUI prosecution. The court held that it can.

     New York State has been dealing with a similar quandary for some time now. Virtually every section of NY VTL Sec. 1192 that references impairment by drugs limits a prosecutable drug to those specifically enumerated in Sec 3306 of the NY Public Health Law (“PHL”), referred to as controlled substances. For example, VTL Sec. 1192.4, Driving While Ability Impaired by Drugs, states that “No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.” VTL Sec. 114-a contains the definition of a “drugs”: “The term ‘drug’ when used in this chapter, means and includes any substance listed in section thirty-three hundred six of the public health law.” So if it turns out that a driver is in fact impaired by a substance but that substances is not specifically listed in PHL 3306, they cannot be prosecuted for a drugged driving offense…that is unless the driver is charged with violating VTL Sec. 1192.4-a, generally referred to as a Combined Influence DWI. Then all bets are off!

     VTL Sec. 1192.4-a does not specifically limit the term “drug” to those listed in PHL 3306. The language of the statute instead merely prohibits driving drunk while also impaired by “any drug or drugs.” Does this mean that if you’re intoxicated AND impaired by a drug, it can be ANY drug? This has been the debate here in NY for a while now, and there are some who say yes! And there are also some who say no!

     The Sullivan County Court (Hon. Frank LaBuda) held in 2007 that the statute (VTL Sec. 1192.4-a) is limited only to those controlled substances listed in PHL 3306 (since every other use of the term “drug” throughout the chapter directly incorporates PHL 3306). However, not very long thereafter, in 2008, Hon. Matthew Sciarrino, Jr. of the NYC Criminal Court, Richmond County, held just the opposite when he decided that an 1192.4-a prosecution could continue despite the fact that the drugs the defendant admitted to consuming were not controlled substances pursuant to PHL 3306. The basis for his decision? VTL Sec. 1192.4-a did not specifically incorporate PHL 3306 into its language.

So there ya go, two sides to the same coin.

     But have no fear. The NYS legislature has put the wheels in motion to broaden the scope of offense punishable as DWIs! There is a bill pending now that would expand both VTL 1192.4 (DWAI-Drugs) and 1192.4-a (Combined Influence) to permit prosecution for DWI offenses involving literally any drug that has the potential to impair a driver’s physical and/or mental abilities. While not necessarily good news for New York Drivers who are on prescriptions medications (which today seems to be plenty of people…and plenty of medications!), I believe the immediate result of this new legislation (if it passes) will be increased litigation concerning every aspect of non-schedule controlled substances and their effects, and how the prosecution can even prove impairment from an inhalant, a substance that in most instances dissipates almost immediately. Should be fun for us defense attorneys though!

Here's the article: http://www.greatfallstribune.com/story/news/local/2015/06/10/supreme-court-huffing-can-lead-dui-charge/71012998/

Close Call Indeed!

The guy in the article below, Mr. Green, very narrowly avoided a DWI prosecution thanks to a very honest witness. And avoiding a DWI in NJ is like a near-death experience, so this guy should count his blessings, and be incredibly grateful no one (other than him) was hurt!

(As someone who I greatly admire once said with regard to NJ and its DWI laws: "You ask what happened to the former Soviet Union? It became the state of New Jersey!")

Had the witness positively identified Mr. Green as the driver who struck the pole, he would have had a much more unpleasant evening, most likely having been arrested and processed for DWI in addition to the other summonses he was ultimately issued.

So why wasn't he arrested for DWI when he admitted to the police six days later that he actually was driving the truck? Since the witness was unable to ID Mr. Green at the time, and Mr. Green was already in his home (creating an issue of access to alcohol and a timeline problem), the police lacked probable cause to arrest Mr. Green for DWI and were consequently prohibited from administering any field sobriety tests or determining his BAC. Since the requirement for a DWI prosecution is that you be intoxicated WHILE operating a vehicle, the circumstances prevented the officers from attempting to determine Mr. Green's BAC or degree of impairment at any time remotely related to when he operated his vehicle.

Hopefully Mr. Green will fully appreciate the "break" he was given here and think twice before driving while intoxicated (or even while his ability is impaired) in the future.

Here's the article:

http://www.nj.com/cumberland/index.ssf/2015/06/stumbling_bleeding_man_unable_to_recall_drunk_driv.html

I’m (Drunk) On a Boat!

Warm weather is finally here in NY! Well, on most days, anyway. And thankfully warm weather means beaches and boats! And in a lot of instances, boats come stocked with beer! But be careful if you plan to have a drink or two out on your motor boat this summer, you motorboatin’ sonofagun, particularly if you’re the one driving. Although you may not be in a car or on a public highway when you’re tooling around checking out the girls in bikinis, you can still be arrested for operating a motorized vessel in an intoxicated or impaired condition, a BWAI (Boating While Ability Impaired) or BWI (Boating While Intoxicated). A BWAI is a violation level offense, but a BWI is a misdemeanor just like a DWI, which can result in a criminal record and suspension of your privilege to operate a motorized boat. Multiple BWI convictions can also result in a felony charge.

Many courts (and prosecutors) are not very familiar with BWI offenses. It is therefore critical that your BWI defense attorney is knowledgeable in all aspects of Boating While Intoxicated offenses. If you have been charged with a BWAI or BWI, call us today at (845) 454-1919 to schedule a free consultation.

DWI on an ATV? WTF?!

From what I can tell from the article below, these guys were riding trails and river banks before one of the poor bastards swamped his ATV only to then watch it float down river (and I'll assume the second guy stopped laughing his ass off once the officer's focused their attention on him). So maybe they had been drinking, but if that's the sole basis for the DWI arrest, these officers missed the mark. While you can be arrested for DWI on an ATV, you have to be operating it (or have operated it) on a public roadway in order to be subject to VTL1192. There is no set of DWI laws unique to ATV's like there is for boats (i.e., NYS Navigation Law Sec. 49-a).

Unless there's more to the story, I have a feeling these guys will be looking at non-alcohol related dispositions at the end of the day, which should help buy that replacement ATV!

Here's the article: http://poststar.com/news/blotter/two-men-charged-with-dwi-on-atvs/article_026b13dd-9a74-570e-b98c-e5f03e514d59.html

Mowing While Intoxicated???

Like to have a beer (or four) while mowing your lawn? Nothing wrong with that...just keep it in the yard, Jack! The guy in the article below didn't head those instructions. Now he's facing criminal charges!

As humorous as it sounds, picking up a DWI on a tractor is not as uncommon as you might think. I've even seen a few golf cart DWI's from time to time! If what you're driving is defined as a "motor vehicle" pursuant to NYS VTL Sec. 125 (and a tractor is!), and you're operating it on a on a "public highway" as defined in VTL Sec. 134 (which is really any road), then you are subject to most VTL laws, including DWI! 

So maybe think twice before driving your Cub Cadet across the street to mow your neighbor's lawn if you needed a few tall boys to get through your own yard!  

Here's the article: http://www.wkbw.com/news/police-blotter/man-gets-dwi-while-driving-his-cub-cadet-mower

DUI from a whip-it?!?!?

So according to the article in the link below, a young lady was arrested in Tennessee after crashing into a few mailboxes (and allegedly leaving the scene of an earlier accident). She was subsequently charged with DWI (or DUI in TN) after the arresting officers discovered quite a few cans of whipped cream and receipts in her car. 

This should be a fun one to defend! The high from a nitrous cartridge lasts all of what, 15 to 20 seconds (or, uh, so I've heard...)? Any impairment (if she were actually taking hits while driving) would have all but disappeared by the time the police arrived, rendering any field sobriety test entirely useless and unreliable. Obviously, there's no BAC, and you can forget about a blood test. Granted, this is Tennessee, but here in New York, based on what I gathered from the article, she'd be looking at maybe a reckless driving, at worst!

Here's the article: http://wkrn.com/2015/05/27/police-woman-high-on-retail-aerosol-products-hits-mailbox/

Aggravated DWI is not a felony…Unless it is….

     And if that’s not lawyer-speak then I don’t know what is! But it’s true nonetheless. Aggravated DWI in New York is codified in VTL Sec. 1192.2-a, and within that section are two subsections, (a) and (b).

      VTL 1192-2-a(a) or per se Aggravated DWI, establishes a separate offense for driving with a BAC of .18 or higher. A violation of 1192.2-a(a), in and of itself, is still a misdemeanor level offense, although the sanctions and penalties for a conviction are more severe than for a “straight’ DWI; but it is NOT a felony. (However, if you have at least one prior DWI conviction within the past 10 years you could be charged with a felony, regardless of whether this BAC rises to an aggravated level or not.)

     On the other hand, a violation of VTL 1192.2-a(b) IS a felony straight out of the gate. 1192.2-a(b) makes it an automatic felony to commit the offense of DWI, DWAI or combined influence DWI while a child younger than 16 years of age is in the vehicle. This is more commonly known as “Leandra’s Law” in honor of Leandra Rosado, an 11 year old girl who was tragically killed in drunk driving accident in New York City in 2009.

      A conviction of either one of these offenses can pretty much ruin your day, year, and possibly life. So if you find yourself on the short end of an Aggravated DWI arrest, you need DWI defense attorneys experienced in defending these very serious DWI charges; you need Catalano & Carpenter LLP. Call us today to at (845) 454-1919 schedule a free DWI consultation.

High BAC? Call C&C?

Catalano & Carpenter LLP

4 Liberty Street

Poughkeepsie, New York 12601

(845) 454-1919

www.CatalanoCarpenter.com

My BAC and Me

High BAC? Call C&C!

But what does BAC mean?

BAC stands for Blood Alcohol Content and, just like it sounds, is a measure of the alcohol content in your blood. POW…Mind blow.

The minimum BAC in all 50 states that will get you bagged for DWI is 0.08 of 1%. NOTE: that’s NOT .08%; it’s actually 0.0008, which would mean that you have successfully replaced 0.0008 of your blood (or the water that should be in it) with straight alcohol. That alcohol (or at least the alcohol that hasn’t yet been broken down by your liver) then gets pumped throughout your entire body, including to the brain, resulting in a unique medical phenomenon doctors refer to as “Drunky McWastypants.”

Occasionally I’ll get a call from a potential client who tells me they blew a “2.1” or something like that. As much as I would love to hear the details of how someone managed to replace 0.0021 of their blood with alcohol and somehow continue breathing (forget about driving!), I’ll quickly move on to other issues and assume, always correctly, that they really blew a 0.21. Why? Because they’d be far too busy attending their own funeral instead of calling me if they really blew a 2.1. While theoretically it may be possible to blow a 1.0 or higher, practically speaking it’s damn near impossible to get your BAC that high without first passing out and/or, ya know, dying. On average, even the most hardcore drinkers will black out around 0.4 to 0.5. Granted, alcohol effects everyone differently and depends on a lot of daily and personal variables, but if you’ve managed to get yourself to a 0.5, you should also manage to get yourself to a hospital (Call an ambulance! Better yet, have a coherent friend call the ambulance… Don’t drive yourself to the hospital!)

I’ve seen a lot of high BAC’s, the highest I think was somewhere around .38. I know another attorney who’s seen a 0.4-something. Even the prosecutors I speak with who only prosecute DWI’s can’t remember ever seeing anything above a 0.4-something. So keep that in mind the next time you think to yourself, “Psh, a .08 is nothing!” It is, in fact, a whole lot of something.

BUT! Just because your BAC reads high at the police station (or from a blood test) doesn’t mean it IS that high! That’s where we come in. If you’ve been charged with Aggravated DWI (in violation of NYS VTL Sec. 1192.2-a, having a BAC of .18 or higher), you need DWI defense attorneys who know how to defend you against those high – and potentially damning – numbers. You need Catalano & Carpenter LLP. Call (845) 454-1919 now to schedule a free DWI consultation.

High BAC? Call C&C!

Criminal defense attorneys love to brag about that one client they represented who had that crazy high BAC, we’re talking like a .28! “Wow,” says whoever is listening, “what happened with the case?” “I pled him out to the Aggravated DWI; what else can you do with a BAC like that?!” Whereupon my tongue immediately starts to bleed from the involuntary pressure of my teeth...

But my inner DWI defense attorney (who is just a little chippier than the outside DWI defense attorney) is absolutely SCREAMING!! What else can you do?!?! Uumm, how about A LOT!!!!

High BAC readings, from either a Draeger, Datamaster, Intoxilyzer or even blood tests can be intimidating to someone not experienced enough to understand that they are looking at a potentially huge opportunity. But a skilled DWI defense attorney, like the ones here at Catalano & Carpenter LLP, sees that opportunity and immediately goes to work in attempting to debunk the BAC because, yes, in some instances that can actually be done! But your attorney has to know how. Unfortunately, not all criminal/DWI defense attorneys do. I'm guessing you probably want yours to, tho.

All DWI convictions can cause significant problems for anyone who has to live with it, including innocent family members who have to pick up the slack. But Aggravated and Felony DWI convictions can be downright devastating resulting in higher fines, longer periods of license revocation, and a better chance of incarceration. If you have been charged with Aggravated DWI (BAC of .18 or higher) or Felony DWI, you need a DWI defense attorney who knows how to defend against those most serious of DWI offenses; you need Catalano & Carpenter LLP. Call (845) 454-1919 today to schedule a free consultation.

Happy Cinco de Mayo!

A sincere Happy Cinco de Mayo to all our Mexican friends (and to everyone else who just uses the holiday as an excuse to drink)!

Since it IS a holiday that lends itself to excessive drinking, you can bet your maracas that there will be enhanced police patrols out there today into tonight looking for buzzed, drugged and drunk drivers. Might even come across a DWI checkpoint or two! And they’ll be stopping cars for minor infractions they wouldn’t normally even think twice about. So when that thought creeps into your head after that third, fourth or tenth cerveza telling you you’re good to drive, shut it down…just like the Mexican army did to the French in 1862!! Little Cinco de Mayo trivia for ya’ there…  You’re welcome.

If you are going to have a few today, be smart enough to think ahead and designate a DD. And if those unplanned tequila shots sneak up on you, call a cab or walk. You don’t like to call cabs because they’re too expensive? How about a DWI grand total somewhere in the vicinity of $5,000 to $10,000? Even if you end up hailing the world's most expensive cab that charges half that, you're still ahead of the game! 

But if you do find yourself on the heavy, steely, handcuffed end of a DWI stop, the only smart thing you could have done to that point would have been to save our number in your phone first. Put it in there now, Catalano & Carpenter LLP at (845) 454-1919 or our after-hours number at (914) 512-7641. Have fun! Be safe! You’re not the only person in danger when you drive drunk!        

Catalano & Carpenter LLP

4 Liberty Street

Poughkeepsie, NY 12601

(845) 454-1919

www.CatalanoCarpenter.com

Todd@CatalanoCarpenter.com

"Knowledge, Experience & Commitment When You Need it Most"

Why Do You Need a NY DWI Defense Attorney?

Actually, let’s put a finer point on it: why do you need Catalano & Carpenter LLP as your DWI defense attorneys?

Do you perform your own dental work? How about your own surgeries? Hell, I won’t even attempt to work on my own car, and I’m pretty sure I’m not alone there! But you still think you can defend your own DWI?

There’s a reason each of those areas have people devoted solely to practicing them, people called professionals. Because it just makes sense to leave those tasks to the people who know what they’re doing, who have trained for years with the very instruments needed to solve your problem; people who know what they’re looking at and what they’re talking about. And for better or worse, that includes attorneys.  

A “professional” is a person engaged or qualified in a profession; basically someone who can honestly say "[this] is my thing." The law is an attorney's "thing." More specifically, DWI is a DWI defense attorney's thing, and in some ways a lot like that car engine of yours that knocks on the highway: there's something not quite right with it, you know it, no doubt in your mind. But if you take that engine apart yourself to fix that knock, you're just going to end up needing a new car... with no trade-in to help! 

When it comes to your DWI, I’ll bet most of you feel the same way: "There’s something squirrelly about that stop/arrest/cop/machine/(insert issue of your choice here) because I know I wasn’t drunk!"

And you may be right! But how are you going to prove it? Go into court and ask the cop a bazillion irrelevant and potentially damaging questions until you hopefully stumble upon the real problem? Argue ineffectively with the judge until he or she hopefully agrees with you just to shut you up? Or stare at the pages of discovery that mean absolutely nothing to you until you go cross-eyed and decide to fake it?

Trust me, I’ve seen each of those approaches in action (by pro se defendants AND ill-prepared attorneys) and I wouldn’t recommend any one of them. You go down that road and you’ll be no better off than the person with a car engine in a 100 different pieces on the floor in front of them…sure you may have found the problem, but the engine - and ultimately the car - is in all likelihood lost forever.  

DWI defense is not - and absolutely cannot - be approached in the same manner as a first-day auto shop student gutting a 1970 Gremlin. It requires recognition of very specific – and often very technical – legal and scientific issues. And once those issues are spotted, it’s even more important to know what to do with them! (“Uh…I know this weird little octopus-looking thing came from something important on that engine…”).  This can only be done accurately and effectively by an experienced and knowledgeable DWI defense attorney (notice that I said DWI defense attorney, not criminal defense attorney…see my previous article for more on that).

The DWI defense attorneys of Catalano & Carpenter LLP have that experience and knowledge. And even the smallest issue in the hands of an attorney who actually knows what to do with it has the potential to dramatically improve the outcome of your case.

If you want to get rid of that troublesome and potentially disastrous knock in your engine, you need a professional to fix it as soon as possible so you can keep moving forward.

You need Catalano & Carpenter LLP. Call us today at (845) 454-1919 or visit us online to schedule a free DWI consultation.      

How Much Does a NY DWI Attorney Cost?

Allow me to answer your question with a few questions of my own (I am a lawyer after all):

What’s more important to you: Saving a few bucks on a cheap(er) attorney?  Or keeping your driver’s license?  Keeping your job?  Protecting your future?  Keeping your freedom?

An attorney’s fee is obviously a very important consideration when deciding who should represent you in your DWI case (or any criminal case for that matter).  But that’s all it should be, a consideration.  To hire an attorney based on fee alone may be the biggest mistake you could ever make in your life.   And if you make the wrong choice, it could very well cost you some of the most important things in your life.   It’s your life.  You should want to fight for it and do what needs to be done to have the best opportunity to protect it.

That doesn't mean you should run out and hire the most expensive attorney you can find thinking that by handing over your life savings your case will automatically be dismissed!  But it does mean you shouldn't balk at the attorney who has a slightly higher fee than others.  Instead, ask yourself why they charge more.  Check that.  Ask the attorney why he or she charges more!  If they can’t give you a legitimate explanation, well, then grab your coat and hat and get the hell out of there.   

But any acceptable explanation should educate you as the potential client as to that particular attorney’s experience as a DWI defense attorney.  Note that I said experience specifically as a DWI defense attorney, not just experience as an everyday “defense attorney”.  Remember Venn Diagrams from school?  Think of it like that:

All DWI defense attorneys are criminal defense attorneys; but not all criminal defense attorneys are DWI defense attorneys.

An attorney who has more experience defending DWI clients should charge a little more than another attorney who doesn’t have so much experience, don’t you think?  All of those years of experience are valuable; they’re worth something, not just to the attorney, but to you as the client! 

• Experienced DWI defense attorneys know what to look for; they know where the potential problems are and where potential points may be scored against the prosecution.  
• They know the Assistant District Attorneys who prosecute DWI offenses; which ones negotiate and how best to do it. 
• They know the individual judges and their personal policies and pitfalls with respect to DWI cases.
• They know the arresting officers, not just from seeing their names on the paperwork, but from interacting with them at hearings and trials; they know how the officers will react on the stand. 
• They know how chemical test machines work, what the potential problems with the machines are, and what all those pages with all the little numbers all over the place mean (and what the little numbers themselves mean!).
• They know how each consequence of each conviction or disposition will affect every client. 
• They understand and can explain to you what actions the DMV will take in certain circumstances and how that might affect your overall case.
• They know how to handle a refusal and what happens at a refusal hearing, and how the result of that hearing will affect your criminal cases.
• And countless other nuances to DWI defense that the unfamiliar attorney who merely dabbles in DWI defense will never understand. 

All of that experience and knowledge significantly increases your chance of getting a decent resolution (although, as with all things in life and Vegas, there is never a guarantee).

So, really, wouldn't you want the person who knows more than the other guy about something that can quite possibly affect the rest of your life?  And those few extra dollars you spend now on the attorney worth his or her salt in DWI defense could actually end up saving you hundreds and possibly thousands of dollars at the conclusion of your case.

The DWI defense attorneys at Catalano & Carpenter LLP strive to provide exemplary service to all of our clients, DWI and otherwise.  Sure, sometimes we’re a little more expensive than some other attorneys in the area (and sometimes we’re not), but no matter what the fee or the case, our clients can rest assured they are receiving the highest service we can possibly provide. 

If you or someone you care about has been charged with DWI, call the experienced DWI defense attorneys at Catalano & Carpenter LLP at (845) 454-1919 today or visit us at www.CatalanoCarpenter.com to schedule a free no obligation consultation.

Underage DWI and New York Zero Tolerance Laws

If you’re under 21 at the time of your arrest for an alcohol-related driving offense, the penalties for a conviction may vary greatly from the same conviction for someone over 21.  That only makes sense tho, right? The law says you can’t drink at all. So by drinking and driving, you’re breaking even more laws than the person over 21 who also made the poor choice to drink and drive!  But believe it or not, your age may actually work to your advantage if you do get arrested for DWI under 21!

Generally speaking, there are two ways an underage DWI can go down: it can be handled 1) in the criminal courts (as an underage/possible youthful offender), or 2) at the administrative/DMV level (as a Zero Tolerance violation).  This blog entry discusses only Zero Tolerance laws.        

How your case is ultimately resolved will depend on many factors, including what you are initially charged with, obviously!  A violation of the Zero Tolerance Law (VTL 1192-a) is a chargeable offense (if your BAC at the time you were driving was between .02 and .07).  However, most law enforcement agencies (at least most of the ones I deal with on a regular basis) rarely, if ever, charge a violation of 1192-a.  They will instead issue a violation of Driving While Ability Impaired (DWAI) in violation of VTL 1192(1) and let the chips fall where they may.  In that situation, it is up to your attorney to convince the prosecutor why you should be granted the enormous break of a Zero Tolerance adjudication rather than an alcohol related conviction. 

So what is so great about a Zero Tolerance adjudication?  Plenty!  Below is a list of just what a Zero Tolerance adjudication involves in terms of penalties and other sanctions.  Keep in mind this list applies only to Zero Tolerance adjudications (not criminal convictions).  

Prompt Suspension Law (“suspension pending prosecution”)

In the case of underage offenders charged with a violation of VTL 1192(1) – DWAI – only, the court will suspended the person’s license/permit/driving privileges at the first appearance (as opposed to a person over 21 who cannot be suspended pending prosecution unless there is proof of a BAC of .08 or higher, i.e., DWI or Aggravated DWI only).

Conversely, the license/permit/driving privileges of a person charged with a violation of VTL 1192-a (the Zero Tolerance Law) only cannot be suspended at arraignment, or where your attorney has worked out a Zero Tolerance resolution with the prosecutor prior to your first appearance. (Clearly then it is to your advantage to call us immediately after your arrest to provide us an opportunity to resolve your case prior to arraignment).

Zero Tolerance Penalties/Sanctions

First Offense

• NOT a criminal conviction;
• License/permit/driving privileges suspended for 6 months;
• If a refusal (first offense), revoked for at least one year;
• Registration may be suspended for 6 months;
• $125 civil penalty;
• Likely eligible for Drinking Driver Program (DDP) and a conditional license; and
• Successful completion of DDP may result in early termination of 6 month suspension

Second Offense***

• NOT a criminal conviction;
• License/permit/driving privileges revoked for at least one (1) year or until the person reaches the age of 21, whichever is longer;
• If a refusal (second offense); revoked for at least one (1) year or until the person reaches the age of 21, whichever is longer;
• Registration may be revoked for at least one (1) year or until the person reaches the age of 21, whichever is longer;
• $125 civil penalty;
• NOT eligible for DDP or conditional license.

***Keep in mind, however, that if you’ve already been permitted one Zero Tolerance adjudication by the prosecutor, the odds of a second within such a short period of time are very slim!

Records are Sealed/Destroyed

All records of a Zero Tolerance adjudication are deemed destroyed after 3 years from the date of a hearing resulting in a Zero Tolerance finding or entry of waiver of hearing, or when the person reaches the age of 21, whichever is longer.

The attorneys at Catalano & Carpenter LLP have obtained Zero Tolerance adjudications for many drivers under the age of 21 who were initially charged with violations of VTL 1192. If you are under 21 and have been arrested for an alcohol related driving offense, call us today to discuss your options and whether you may be appropriate for a Zero Tolerance adjudication (please note that if your BAC is anywhere near your age, you’re not getting a Zero Tolerance offer, plain and simple; but other favorable dispositions may still be available).  

A Zero Tolerance adjudication is a great resolution in those cases where a dismissal, ACD, or plea to a lesser traffic violation is not warranted or possible (which is the case in many if not most DWI prosecutions).  The knowledgeable and skilled DWI defense attorneys at Catalano & Carpenter LLP know the ins and outs of obtaining a Zero Tolerance offer.  If you have been arrested for an alcohol related offense and are under 21, call us today at (845) 454-1919 or visit us at www.CatalanoCarpenter.com to schedule a free consultation.  The sooner you call the sooner we can help.

For more information about Zero Tolerance Laws and penalties, visit the following sites:

Safe NY - http://www.safeny.ny.gov/zero-tol.htm

NYS DMV - http://dmv.ny.gov/tickets/penalties-alcohol-or-drug-related-violations

Driving While Intoxicated (DWI) in Violation of NYS VTL Sec. 1192.3.

Driving While Intoxicated.     No person shall operate a motor vehicle while in an intoxicated condition.

NY VTL 1192.3.

Although this may seem like a pretty straightforward law (don't drive while intoxicated!), proving someone has violated it is really not that simple.  Most DWI defense attorneys chomp at the bit when a lone 1192.3 charge comes through the door because there's no BAC to cause headaches.

BAC's are bad.  Juries love BAC's..."A computer says that the BAC was .10, so it must be accurate, and the defendant must be guilty!"...says the jury.

And even tho DWI defense attorneys should, at a minimum, attempt to discredit a chemical test result/machine when there is a BAC, at the end of the day juries are reluctant to disregard what they consider to be hard evidence of intoxication unless there was proof of a malfunction or some other bona fide error.

But you don't have to deal with that on an 1192.3 charge!  The fertile ground to explore in a VTL 1192.3 charge is the subjective observations of the arresting officer and any other witnesses.  To a criminal defense attorney, that's good stuff! But what does that mean?

Opinion! That's what that means.  Although a major factor in an 1192.3 arrest is the driver's performance on the Standardized Field Sobriety Tests (which aren't really very standardized), it should also be based upon the arresting officer's overall opinion (formulated from his or her entire observations) that the driver is intoxicated.  Think about that for a second.  The arrest is premised upon the observations of a person who (in most cases) has never met the driver before; has no idea how the driver looks, behaves or moves on any given day.

Obviously, if a driver has to clear the beer cans from his lap before he pours himself out of the car and throws up clear vodka on the officers shoes, that may be a bit of a no-brainer.  But that's not the typical situation (I hope!).

With regard to all DWI stops (for 1192.2, 1192.3 or otherwise), the officer is trained to observe the driver from the instant contact is made (meaning, once they come into contact with the vehicle, not necessarily the driver).  They will watch for erratic operation or a violation of a traffic law (or worse) and use that as the basis to initiate the stop.  The officer will observe when and how the vehicle responds to the direction to pull over.  After the officer arrives at the vehicle, observations through the door/window are being made of the driver's physical appearance, eyes, odor, speech and motor coordination; observations of how the driver exits the vehicle, and ultimately how the driver performs on the Standardized Field Sobriety Tests (SFSTs).  And if there's no BAC (and there wouldn't be for just an 1192.3 charge), that's the prosecutor's entire case, ladies and gentlemen!***

And what fun a skilled DWI defense attorney can have cross-examining the arresting officer about his or her subjective opinions, subjective application and interpretation of the SFSTs (physical tests requiring movement and coordination not normally engaged in by the every day driver), and the officer's subjective state of mind (before any probable cause has been established) as s/he pulled someone over at 2:00 AM on a Friday night for an innocuous speeding violation.

(*** Generally in a case where the only DWI related charge is an 1192.3, it may be because the driver refused to provide a sample for chemical test analysis (i.e., a "refusal").  In that case, there are certain consequences of the refusal that come into play at the criminal trial.  Specifically, in most circumstances the jury may be given a "refusal charge," which permits to prosecutor to inform the jury that the driver's refusal to provide a sample was a conscious decision because the driver knew he or she would fail the test, i.e., "consciousness of guilt."  That can be difficult to contend with at trial, but not impossible.  Similarly, there will be the civil consequences of a refusal; that topic is dealt with in a previous entry.)

Cases charging just a violation of 1192.3 occur a lot.  And although they are typically hampered by a related refusal charge, the skilled DWI defense attorneys at Catalano & Carpenter LLP know how to effectively challenge the evidence of an 1192.3 arrest, minimize or leverage the refusal, if one exists, and in many cases are able secure a pre-trial plea or trial verdict of a DWAI violation or other non-criminal resolution.

No matter the charge, a DWI arrest is serious and can result in serious and immediate consequences.  If you have been arrested for any DWI offense, call the knowledgeable and experienced DWI defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com to schedule a free consultation.

NYS VTL 1192.2-a(a). Aggravated Driving While Intoxicated

(a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by a chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section 1194 of this article. 

(b) With a child. No person shall operate a motor vehicle in violation of subdivision 2, 3, 4 or 4-a of  this section while a child who is 15 years of age or less is a passenger in such motor vehicle. 

NY VTL 1192.2-a.

Aggravated DWI in NY comes in two forms: (1) driving with a BAC of .18 or higher, or (2) driving while intoxicated or impaired by drugs with a child under 16 years old in the car.

However, while a first offense of subdivision (a) is a misdemeanor, a first offense of subdivision (b) is an automatic felony (and the subject of another post), regardless of how squeaky clean your criminal or driving history may be.

A charge of misdemeanor aggravated DWI will result in the suspension of your driving privileges at arraignment, the very first court appearance, before you have been found guilty of anything.  And the penalties for an actual conviction of misdemeanor aggravated DWI are significant.

Penalties

First Offense

• Punishable by a fine of between $1,000 to $2,500, up to one (1) year in jail, or both a fine and jail;
• Possible probation;
• Mandatory state surcharge/fees of $400; 
• License/driving privileges revocation of one (1) year;
• Driver Responsibility Assessment fee of $750; and 
• Ignition Interlock Device ("IID") installed and maintained at defendant's expense for no less than 6 months.

A person convicted of aggravated DWI will most likely also be required to complete various programs (e.g., Victim Impact Panel ("VIP") and Drinking Driver Program ("DDP")), as well as an alcohol and/or substance abuse evaluation, all at the defendant's expense. 

Second Offense (more than 10 years from prior any DWI conviction)

• Punishable by a fine of between $1,000 to $2,500, up to one (1) year in jail or both a fine and jail;
• Possible probation;
• Mandatory state surcharge/fees of $400;
• License/driving privilege revocation of 18 months;
• Driver Responsibility Assessment fee of $750; and 
• Ignition Interlock Device ("IID") installed and maintained at defendant's expense for no less than 6 months.  

A person convicted of aggravated DWI will most likely also be required to complete various programs (e.g., Victim Impact Panel ("VIP") and Drinking Driver Program ("DDP")), as well as an alcohol and/or substance abuse evaluation, all at the defendant's expense. 

Second Offense Within 5 Years

A second DWI offense within 10 years of a prior DWI related conviction would most likely be charged as a class E felony,subject to higher fines and up to 4 years in state prison.  The experienced DWI defense attorneys at Catalano & Carpenter LLP may be able to avoid a felony conviction in certain cases (if the charge can't be beaten altogether), in which case the defendant would be subject to the typical second misdemeanor offense penalties above, but with the additional penalty of

• Either 5 days in jail or, alternatively, 30 days of community service. 

Third or Subsequent Offense Within 5 Years

Likewise, a third or worse DWI offense within a 5 year period would most likely result in a charge of DWI as a class D felony, again, punishable by even higher fines and up to 7 years in state prison.  A successful reduction of such a felony to yet another misdemeanor conviction would similarly result in the same penalties as a second misdemeanor offense within 5 years, but this time with:

• Either 10 days in jail or, alternatively, 60 days of community service. 

Any charge of DWI, aggravated, felony or otherwise, can be devastating to both the defendant and the defendant's family.  And those consequences can be felt immediately after the arrest.  It is therefore critical that anyone charged with an alcohol related driving offense speak with an experienced and knowledgeable DWI defense attorney immediately. 

The DWI defense attorneys at Catalano & Carpenter LLP have established a reputation for aggressively and successfully defending and protecting the rights of individuals throughout the Hudson Valley charged with alcohol related driving offenses. 

If you are charged with any alcohol related driving offense, call the experienced DWI defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919 to schedule a free consultation, or visit us online at www.CatalanoCarpenter.com.