New York Criminal Lawyers Blog

As a New York City and Westchester DWI lawyer, we regularly handle DWI cases in all of the Westchester towns including White Plains, Yonkers, Harrison, Port Chester, Mount Vernon and New Rochelle.

This year New York added a new requirement for convictions for DWI. Any conviction for a DWI now requires that the person convicted install an interlock device in their car. If a person convicted of a DWI fails to install an interlock device, they are now guilty of an additional crime.

This new requirement does not apply to people convicted of driving while their ability to drive is impaired. New York criminal defense lawyers must advise their clients of this new requirement when discussing plea bargains.

As a New York criminal defense lawyer, Michael Joseph has handled numerous driving while intoxicated cases in Westchester county and New York City. Often people who know they are too drunk to drive will get in the car and try and sober up. Sometimes, people will get in their car and turn on the heat or air conditioning while they wait.

Unfortunately the police in White Plains, Port Chester and other bar towns are notorious for arresting everyone who is sitting in a parked vehicle behind the wheel trying to sober up. Our NY DWI lawyers have successfully defended these cases because if you are getting in the car to sober up or sleep, you are not driving while intoxicated.

Under New York DWI laws to operate a vehicle means to drive it. New York DWI law defines driving as sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running. Thus, an essential element is that the person be behind the wheel for the purpose of driving it.

In the last year the New York DWI laws have become much more stringent and New York DWI lawyers must be keep up to date on these recent changes. For example, the new Aggravated driving while intoxicated prohobits the operatation of a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood. This is .02 higher than double the normal DWI limit. These new DWI laws in New York have stiffer penalites and limit the plea bargains that can be offered.

The New York DWI laws prohibit the reduction of an aggravated DWI charge to anything below a DWI charge. In other words, it cannot except for unusual circumstances be reduced below a misdemeanor to a driving while ability impaired, which is a violation.

The new DWI laws in New York now prohibit driving while intoxicated with a child in the vehicle. Specifically, the law prohibits driving while intoxicated while a child who is fifteen years of age or less is a passenger in the vehicle. This new DWI law makes driving while intoxicated with a child a class E felony, with a mandatory fine of $1,000. These new laws have been frustrating for New York criminal defense attorneys because it makes felons out of first offenders and makes the consequences of losing much greater. The prosecutors in Westchester county have been refusing to reduce these DWI with child to misdemeanors. But the good news is our White Plains DWI atttorneys have been able to avoid jail and sometimes even probation on first offender cases.

Effective August 15, 2010, the amended New York DWI laws require the New York Criminal Courts to require any person who has been convicted of a violation of DWI crime (except the violation of driving while ability impaired) to install and maintain, as a condition of probation or conditional discharge, a functioning ignition interlock device. New York DWI lawyers must advise their clients of the new requirements prior to taking a plea bargain. These new DWI laws also requires the Court to notify D.M.V. of the interlock requirement and DMV will then note the interlock condition on the driver's operating record.

New York DWI lawyers must also advise their clients, who have been sentenced to interlock devices that driving a vehicle without a device is a misdemeanor and will subject the driver to more criminal charges. New York criminal defense attorneys must properly advise their clients of all of these requirements to avoid the potential for further charges.

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.