New York Criminal Lawyers Blog

New York criminal defense lawyers who regularly handle DWI cases know that accidents are a common consequence of driving while intoxicated. An accident involving an injury dramatically increases the exposure of that a criminal defendant in New York faces.

In 2007, a new law was enacted in New York to toughen the punishment of New York criminal defendants who injure others. The New York Legislature created the new crime of aggravated vehicular assault. Penal Law § 120.04-a is similar to vehicular assault in the first degree except that it requires the People to prove that the defendant drove recklessly.

Aggravated vehicular assault is a class C felony punishable by an indeterminate prison term of up to 5 to 15 years 1. In addition, another provision was added to article 125 of the Penal Law enacting the offense of aggravated vehicular homicide, a class B violent felony punishable by a maximum determinate sentence of 25 years' imprisonment. The purpose of this new law was to prevent drunk drivers who maimed or killed another person could rely on his intoxication to mitigate criminal responsibility.

In a recent decision interpreting this law, the Court of appeal recognized that a defendant's getting intoxicated to be sufficient to establish the reckless disregard elements, must be close in time to the act. In other words, the people must prove that the reckless state of mind occurred close in time to the behavior which caused the injury.

A new an innovative tactic among New York criminal defense attorneys who defend driving while intoxicated charges is to challenge the breathilizer records based upon the Sixth Amendment's right of confrontation. A recent decision gives New York criminal defense lawyers a new weapon in the fight against driving while intoxicated (DWI) charges.

There is a conflict between the Sixth Amendment which gives the accused the right to confront the witnesses against him and New York's business record rule which allows records into evidence based upon a certification. Typcially in a New York driving while intoxicated (DWI) trial, the prosecutors will just offer the breathilizer records into evidence based on the certificate, without calling the operator. This deprives the criminal defense lawyer from being able to cross examine the operator and thereby challenge the reliability of the breathilizer's reading.

In People v. Carreira, 893 N.Y.S.2d 844 (N.Y.City Ct.,2010), the Court held that in DWI cases both the simulator solution and calibration records are testimonial for Sixth Amendment purposes and therefore inadmissable unless the New York prosecutor presented live testimony from the person who prepared them. The court went on to note that the business records exception does not appy where the regularly conducted business activity is the production of evidence for use at trial.

The Court also stated that the Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that "[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.

Defendants in the New York and Westchester Criminal Courts who had children in their vehicles while arrested for Driving While Intoxicated (DWI) or Driving Under the Influence (DUI) are being charged with endangering the welfare of a child. Our Westchester DWI Lawyers have aggressively fought these charges.

A recent line of cases in the New York Courts have held that merely having a child in a car when the operator has a blood alcohol level (BAC) above the legal limit (DUI) is not sufficient to establish endangering the welfare of a child.

Instead there must be actual, not theoretical or possible harm.

This is especially important because endangering the welfare of the child has serious collateral damage. For example it can trigger the involvement of social services and possibly a neglect proceeding.

Also if you are not a citizen, a conviction of endangering the welfare of a child can have negative consequences with immigration, possibly leading to deportation. It is important for lawyers to aggressively fight convictions of endangering the welfare of a child.