Friday, June 29, 2012

NYS DWI Probation: NO Alcohol is the Rule, the Law, and the Final Word

Some things are very simple and others complex. Today I want to answer a very simple question:

Can I have an occasional drink if I on (in) NYS probation for a drinking/drugging related offense?

Fast answer, NO. If your crimes in NYS involve the use of alcohol and/or drugs and you receive a sentence of probation (3 years for a misdemeanor level crime and 5 years for a felony level crime) then there is ALWAYS a MANDATORY NO ALCOHOL provision as part of your Probation Conditions.


Probation has lots of conditions. Conditions mean that before you do this or that you MUST do something . . . like ask permission to leave the county or the state, or to change jobs.


check out my prior blog: why probation can be worse than jail here:


http://ithacadwi.blogspot.com/2009/05/is-dwi-probation-supervision-worse-than.html 


OR you can never do this or that . . . while on/in probation . . . like drink alcohol or use recreational substances (marijuana). 


What about restaurants? Can I go out to eat where they serve alcohol?


You can't be in bars when you are on probation or what many like to call a tavern but is really a bar that serves food. Sometimes there is a thin line these days between places that are really in the alcohol business but also serve food. What percentage we are discussing can be nitpicking but probation will definitely tell you what they think (how they feel) about this topic, is it the Olive Garden or the Tasty Olive? One being a well known chain of bad Italian food, and the other being a bar down the street that thinks olives are a vegetable. Maybe you will be allowed to go to TGIF or Applebees but not to sit at the bar or in the bar area. 


I know you are thinking am a child or an adult? Because you are treated as a child while on probation. In fact for those young ins on probation it is called P.I.N.S. (persons in need of supervision). 


RANDOM SEARCH & SEIZURE IS THE NEW LAW

You can be randomly tested via blood, breath, and urine for the use of any alcohol. Your home is free rein for search and seizure at any time by your probation officer. I have even had probation run liver function tests on my clients because they suspected weekend binges on drugs and/or alcohol. 



Probation is the P.S., Not Just the P.


Remember Probation is really P.S. (probation supervision), they feel you are in need of being supervised and monitored because you cannot regulate and control your own life. If the PSI (pre sentence investigation) indicated that the cause of your issues was drugs and/or alcohol then that cause must be removed as the precursor of the effect (your criminal behavior).

CD Sentencing and Alcohol Use



Even in court cases where there has been a reduction from a felony DWI to a misdemeanor DWI they may impose a special NO ALCOHOL provision on even a CD (conditional discharge). CDs can lawfully range from one to two years but most typically are set by the Judge for a one year term in most NYS DWI cases.

Finally, What is a VOP?


A VOP, violation of probation (use of alcohol) can and will result in county jail time. The prosecution in my area (upstate) generally wants 6 months on these types of violations of probation.



Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184