Police DWI Checkpoints

As I was driving home from a friend's house this past Friday I came upon a police DWI checkpoint. I assume it was for DWI (as opposed to a seatbelt checkpoint or vehicle registration checkpoint) as the questions from the Deputy Sheriff went something like this: "I'm Deputy [..] from the Sheriff's Department, we are conducting a sobriety checkpoint, where are you coming from tonight? Where are you headed? Have anything to drink [as he leaned in the window to catch a sniff]? Have a nice night." The interaction took about 10 to 15 seconds and I was on my way. I know, however that others that night, and throughout this last weekend, were not so fortunate. Local news recently announced that law enforcement would beef up their efforts over the St. Patrick's Day weekend to catch drunk drivers by increasing the number of sobriety or DWI checkpoints in and around Rochester including Monroe County. (See video from News 10NBC)

During my time with the District Attorney's Office, I had a number of occasions to participate and in and view first hand these types of checkpoints. I also handled dozens of hearings where individuals charged with a wide range of crimes (from DWI to drug possession) challenged the validity of the checkpoint. Most people coming across a sobriety checkpoint have the same experience I did, 10-15 seconds of inconvenience and then you are on your way. You may not have given it much thought. The checkpoint, however, is a police intrusion in to your Constitutional Fourth Amendment Right to be free of Unreasonable Searches and Seizures. Due to the fact that the police are conducting a warrantless search, and in most instances, an inquiry not based on any reasonable suspicion or probable cause, there are a number of rules that the police must follow in order for their search and any evidence derived therefrom to be admissible against an individual charged with a crime stemming from the stop.

I found a decent explanation of the rights that you have as a citizen being subjected to a police checkpoint. (The site can be viewed by clicking here) You may find the information interesting, especially if you happen to have been nabbed over the weekend by one of these DWI checkpoints.

In addition to the law enforcement goal of catching drunk drivers, DWI checkpoints have a tendency to be a good return on investment for the government. You have probably noticed that most of the checkpoints are set up during times when people are more likely to be out and about drinking (makes sense, right?). If an individual is arrested for a first-time DWI, they are facing a misdemeanor charge that carries with it up to 1 year in jail. It is the equivalent level charge with a petit larceny, assault 3rd or criminal mischief 4th. It carries with it, however, significantly higher financial consequences to the accused, both on the Department of Motor Vehicles end and the court end. The minimum fine on a DWI conviction (non-aggravated) is currently $500 along with a $250 surcharge. In addition, Department of Motor Vehicles will charge a total of $750 over 3 years in order for the convicted person to maintain their driver's license. So it is obvious that the government is generating a significant amount of revenue from DWI charges (when was the last time you heard of special details and overtime for the cops to go after petit larceny charges?). In addition to the court and DMV costs, your car was likely towed. You will have legal costs on top of everything else. The lesson learned is usually that a cab ride from Rochester all the way to Buffalo would have been cheaper than choosing to get behind the wheel after drinking.

If you need help after encountering a DWI checkpoint, give me a call or e-mail. www.rochesterdwihelp.com or 585-232-7747

Facing a DWI Charge? Hire a lawyer!

You are a law abiding, working citizen with a job, family, aspirations. You pay your taxes, vote and are a good person. Now, because of a bad decision you are facing a criminal charge. Being charged with Driving While Intoxicated (DWI) is serious, especially to someone like you who has never faced criminal charges before. Your clean record and driving privileges are put in jeopardy. A conviction for DWI is a criminal conviction. You most likely have questions about what happens next and have probably spent quite some time searching online about possible penalties. It is important that you hire an attorney that is experienced with DWI and criminal law, someone who can give you expert guidance and advice. No 2 cases are identical therefore it is important that you contact a lawyer as soon as possible so that you do not make some of the common mistakes that many do when faced with their first DWI.

First of all, you will likely have a date set for arraignment on your charge. The arraignment is the official start of the court process where you are formally advised of the charges against you. It is critical that you appear with an attorney at your arraignment. One of the things you will need an attorney to do for you prior to your arraignment is investigate whether or not you qualify for a Hardship License. At your arraignment the judge will suspend your drivers license. If you qualify for and submit a properly prepared affidavit for a Hardship License you may be granted permission to drive for limited purposes while your case is pending. This application must be done prior to your arraignment. A common mistake people make is appearing at arraignment without an attorney and upon realizing that the situation is more serious than they anticipated, then hire a lawyer. At this point it is often too late to be granted a Hardship License.

After your arraignment your lawyer will have an opportunity to review the case file that the District Attorney has and most importantly will have the ability to speak directly with the Assistant District Attorney and Judge about your case. Some people believe that they can handle their own case. This is a mistake. Even other lawyers who are charged with DWI hire attorneys to represent them. A prosecutor will not typically speak with you directly about your case and this will seriously harm your chances at negotiating a favorable plea bargain. A good DWI attorney will be able to spot issues with your case and use them as leverage to negotiate a plea. If your case must proceed to trial, a prepared DWI lawyer will be able to focus on those issues that are important. DWI is not an easy case for the prosecution to prove and a good attorney will be able to highlight the weaknesses in the case to obtain a favorable result.

Keep in mind that if you are charged with DWI it will not simply go away without doing anything. Your case will ultimately end up at a trial. After motion arguments (arguments based upon written legal arguments challenging the case against you) there will likely be hearings to challenge the stop of your vehicle, observations of the police officer, statements you might have made to police that are being used against you, the results of any breath test administered to you and any violations of your constitutional rights. After the hearings the case is typically set down for a trial. You have a right to have your case tried in front of a jury, but may waive that right and have your case heard before the judge alone. In a jury trial, the facts are determined by the jury and based upon those facts the jury must unanimously decide whether your are guilty or not guilty. In a jury trial the judge instructs on the law. In a bench trial the judge determines what facts are proven and then makes the decision as to whether or not you are guilty or not guilty. An experienced DWI and criminal lawyer will be able to advise you as to what your best option might be. Not every court is the same, each judge has their own bias and nuances that effect their decision making. A good defense attorney who has practiced in front of the judge you are facing will have some insight in to how the particular judge decides cases in front of him or her.

Our firm has extensive experience handling criminal and DWI cases. Visit www.rochesterdwihelp.com for information regarding penalties, pricing and contact info. We are happy to help you get your life back on track. We never charge for a consultation, so let us analyse your case for free! Have a safe and Happy New Year!

Doing Justice, What Every Prosecutor Should Remember

I recently represented a client who was charged with possessing a stolen car. The issue was, however, the car was not truly stolen. Through a set of circumstances that are too involved (and uninteresting) to describe here, we were able to uncover evidence that showed my client did not do it. This information was given to the prosecutor (to remain nameless) and verified to be accurate. The prosecutor said that he would offer a plea to a violation (disorderly conduct) in light of the new evidence. I asked him why he would require a plea when my client is innocent to which the prosecutor responded "I have to get something."

A prosecutor is supposed to be held to a high standard, to do justice. Having to get a conviction simply because someone was arrested is contrary to the District Attorney's ethical obligations as well as duty to represent the People of the State of New York in a fair and neutral manner. Having been a former prosecutor in Monroe County, I understand that for the most part the Assistant District Attorneys responsible for prosecuting criminal cases want to do what they believe is right, however I also understand that many prosecutors are pressured by office policy and politics that question the use of prosecutorial discretion. I do not believe that the prosecutor that said he had to get something from a case that clearly warranted dismissal reflected the official opinion of the office, but I do believe it was a result of the culture that has been created by not giving ADA's and their bureau chiefs the discretion to "do justice."

My client was ultimately cleared by the Grand Jury (after having the case hanging over his head for almost 6 months). It is unfortunate, however, that the prosecutor would not make the right decision and exercise his authority to use discretion.