DWI Attorney Rochester

The term “restitution” refers to compensating the victim in a case, such as a DWI case, for their losses. The rationale behind awarding someone restitution is that when a person is injured in a DWI case, the victim deserves to be compensated for their injury by the DWI offender. The main purpose of awarding restitution in a DWI case is to ease the financial burden on the victim while reinforcing the DWI defendant’s sense of responsibility for the DWI offense. Restitution in a DWI case may be ordered pursuant to a plea agreement or as a condition of probation.

Who can collect restitution from a DWI defendant?
In a DWI case, the victim of the DWI offense may collect restitution if they have suffered injury or loss as the result of the acts of the DWI offender. If a DWI case involves the death of a person, victims eligible to receive restitution may include either the victim’s surviving spouse or their nearest living blood relative.

The DWI defendant’s ability to pay restitution
In a DWI case where a victim requests restitution, generally the court will consider whether a DWI defendant is able to pay in determining the amount of restitution and the payment schedule. The court may also consider the DWI defendant’s future financial prospects in making the restitution award. Generally, the amount of restitution awarded in DWI cases is within a judge’s discretion. However, the restitution award must be reasonable and usually must bear a reasonable relationship to the damage caused by the DWI defendant’s criminal conduct.

DWI Restitution in New York
Restitution in New York is governed by New York Penal Law § 60.27. Under this statute, victims of a serious injury in a case, such as a DWI case, may receive restitution if they are the innocent victims of a crime and were physically injured as a result of the crime. Under this statute, restitution covers actual, out-of-pocket losses of victims of crimes, such as DWI offenses. Restitution in New York covers, among other things, the repair costs of items damaged as a result of the offense, medical expenses of the victim including professional counseling expenses and medical transportation, sick leave costs of the victim and lost wages of the victim. The restitution statute applies to individuals as well as to corporations, municipalities, and insurance companies who suffer a loss due to a crime such as a DWI offense. Restitution in New York is not mandatory in DWI cases, but under the statute, courts are required to consider awarding restitution if requested by the victim in a DWI case. Read More »

Jury instructions in DWI cases are the directions given to the jury in the case by the court. Jury instructions are directions about the law in the case. In a typical DWI case, the judge will give the jury instructions by discussing the principles of law applicable in the case which the jury must apply in order to reach a verdict based on the facts of the particular case. There are several types of jury instructions. Binding instructions are those where the jury is told that if it finds certain conditions to be true, it is to find for the plaintiff or defendant, as the case may be. A formula instruction is an instruction which gives a complete statement of the law on which the jury may base its verdict and contains all the conditions which are necessary to reach such a verdict. The general purpose of giving instructions to the jury is to make sure the jury is not misled and to focus the jury’s attention on the specific issues that are to be determined in the case. Jury instructions also act as a guide to the jury that assists it in reaching a verdict.

Proposed Jury Instructions in DWI cases
A DWI defense attorney may offer proposed jury instructions under New York Criminal Procedure Law § 300.10. This section sets forth the method for giving jury instructions by the court as well as the method for the timely rendering of proposed jury instructions by the attorneys in the case. In a DWI case, the jury will be instructed on the meaning of certain key phrases, such as “while intoxicated,” or “while impaired.”

The jury in a DWI case will also be instructed on the presumptions of guilt applied to chemical evidence and on what constitutes guilt under the New York per se DWI statute. A DWI defense attorney may propose jury instructions on the issue of chemical tests. The attorney may propose instructions about chemical tests based on the circumstances of the case that might involve improperly issued arrest warrants, improperly administered chemical DWI tests, violations of the defendant’s administrative rights and the failure to properly administer one or more of the standardized field sobriety tests. Proposed jury instructions by a DWI defense attorney based on any of these improper procedures might call for dismissal or submission of the evidence involved.

A DWI defense attorney might propose a jury instruction on a lesser included offense. A lesser included offense, such as Driving While Ability Impaired, is one that lacks one or more of the elements of a higher crime, such as DWI. In deciding whether to propose a jury instruction on a lesser included offense, a DWI defense attorney might consider whether or not guilt in the DWI crime necessarily requires the commission of certain elements that by themselves amount to the lesser offense. If so, a judge might instruct the jury to consider sentencing the DWI defendant to the lesser included offense.

The attorney may propose instructions regarding the definition of “driving while intoxicated.” A proposed jury instruction by a DWI defense attorney may emphasize that the degree of “impairment” or “intoxication” necessary to prove a case of DWI is one which is substantial and affects both the defendant’s physical and mental capabilities. The proposed jury instruction may inform the jury that they have to find this high level of “impairment” in the DWI defendant’s conduct in order to convict them of DWI. Read More »

The most reliable measurement of blood alcohol content (BAC) obtained by direct analysis is a blood test. However, for reasons of convenience, BAC is sometimes obtained through indirect analysis. The purpose of an indirect analysis for BAC is to obtain an estimate of the coexisting BAC. The most common way to obtain a measure of the coexisting BAC is to obtain a breath-alcohol analysis. However, urine analysis may be used to obtain the coexisting BAC.

The basis for examining a urine sample to obtain the BAC involves understanding some scientific concepts. When alcohol is absorbed into the blood, it is distributed to all of the watery fluids of the body. After it is fully distributed, the percentage of alcohol in each body fluid bears a set relationship to the water content of that fluid. At equilibrium, alcohol is uniformly distributed throughout the water in the body. This distribution allows for an estimate to be made of the alcohol content of one fluid (e.g. blood) if the alcohol content of another fluid (e.g. urine, saliva or blood serum) and the relative water contents of the two fluids are known.

In some jurisdictions, urine-alcohol analysis is an acceptable alternative to blood-alcohol analysis. In those jurisdictions, the results of urine testing may be used as evidence in a DWI trial to show whether an individual has or has not recently ingested alcohol. Results of the urine-alcohol analysis can be reported directly as a urine-alcohol concentration or converted into an assumed “equivalent” BAC. Both saliva and perspiration have been used in this way also.

Urine-alcohol analysis is an acceptable alternative to a direct determination of BAC in a number of states. In New York, under the New York Vehicle & Traffic Law section 1194(2)(a), a driver gives their implied consent to chemical testing if they are subject to a traffic stop on suspicion of DWI. This statute specifically authorizes urine alcohol measurements under its implied consent provision. In some states that have DWI statutes worded in terms of BAC, a urine-alcohol concentration (UAC) is converted to a BAC by use of a simple ratio. In other jurisdictions, DWI may be proved by evidence of a certain number of grams of alcohol in a designated quantity of urine. Read More »

The Sixth Amendment to the United States Constitution guarantees the accused the fundamental right to a speedy trial. This constitutional protection is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. In 1974, Congress passed the Federal Speedy Trial Act. The act consists of a statutory blueprint for the expeditious resolution of criminal cases. Generally, the statute limits the time in which an information or indictment may be filed against an accused after arrest, specifies the time within which the defendant’s trial must commence, allows a period of time for the defendant to prepare for trial, provides for periods of delay which may be excluded from the computation of time within which the defendant’s trial must commence, and provides sanctions for failure to comply with the time limitations.

New York’s Speedy Trial statute gives specific time frames within which the prosecutor in a case must be ready for trial. These time frames are set out by the statute and depend upon the seriousness of the crime involved. These time frames are as follows:

Felonies: 6 months
Class A misdemeanor: 90 days
Class B misdemeanor is: 60 days
Violations: 30 days

This law does not require that a trial start within the specified period but only that the prosecutors in a case announce their readiness for trial within the speedy trial period, either on paper or in writing.

Speedy trial rules can be very important to the defense in DWI cases. In some cases, it is possible to have a DWI charge dismissed on the grounds that the state has failed to bring the defendant to trial in a timely manner. Mere delay alone does not constitute a denial of the right to speedy trial. Each case must be determined on its own facts, and when a defendant claims that his right to a speedy trial has been denied, a balancing test is usually utilized by the court, and the issue is generally determined on the basis of whether the delay in trial was reasonable under all the facts and circumstances of the particular case. In determining speedy trial claims, the courts have traditionally placed great emphasis on the issue of prejudice resulting from the delay. Most jurisdictions, state as well as federal, have required the defendant to show not only that there was an unreasonable delay caused by the prosecution in the case, but also that the defendant was in some way prejudiced as a result of the pretrial delay. Read More »

In January of 2007, a new law created the offense of Aggravated DWI in New York. Aggravated DWI is a new category of DWI with stricter penalties and new plea bargaining restrictions. Aggravated DWI means that the driver has a 0.18 blood alcohol content (BAC) or more and is codified in VTL 1192.2-a. Although a misdemeanor, Aggravated DWI is a more serious offense than regular DWI. Not only is the enhanced punishment serious, but prosecutors are limited in their ability to plea bargain for the non-criminal infraction of VTL 1192.1.

Under New York’s aggravated DWI law, a first offense leads to a loss of license for one year, and a possible jail sentenced of a maximum of one year and a possible fine of between $1,000 and $2,500. If convicted of a second aggravated DWI within ten years, there is the penalty of a driver’s license being revoked for eighteen months and a possible jail sentence of up to four years. Also, drivers convicted of aggravated DWI could face probation for up to three years and be required to attend a Victim Impact Panel. Non-criminal penalties that go along with a conviction of aggravated DWI are a$250 per year assessment through the Department of Motor Vehicles for three years and a $395 surcharge in court.

As of August 2010, a conviction for any misdemeanor DWI crime in New York, including Aggravated DWI, requires the added penalty of installation of an ignition interlock device on the driver’s vehicle. The costs of installing and monitoring the ignition interlock device are paid by the driver.

Since the offenses of DWI and aggravated DWI are serious ones, the courts in New York have set limits as to whether they will accept plea bargains in DWI cases. A “plea bargain” is an agreement between the state and the defendant, which is approved by the court. Generally, plea bargaining consists of the prosecutor making concessions in exchange for the defendant’s concession to plead guilty or no contest. A defendant who willingly enters a plea of guilty gets the substantial benefits of a reduction in criminal consequences and avoidance of the humiliation of a trial. While a DWI defense attorney cannot coerce or threaten a defendant to plead guilty, the defense attorney can and should inform the defendant of the nature of the evidence against them, the likelihood of conviction, and the consequences of a guilty plea, as well as explain what course of action, based on that attorney’s knowledge, judgment, and experience, would, in their opinion, be the best to follow in the case. Read More »