Sunday, September 8, 2013

The Perfect Storm: The New York Low BAC DWI

 Do want to take your boat out in this? from free

I love that Perfect Storm movie, the analogies to a great many things is simply uncanny. The concept, if enough things (external factors) come together we have a negative synergy beyond 1+ 1 + 1 = 3, more on the lines of like 1 + 1 + 1 = 100.  Call that the magnitude of the stars aligning in the worst of ways. This can work in the positive as well, but we love to understand how things got so bad from seeming a few innocuous factors.

So how does all of this relate to New York DWI?

I'm glad you asked, first off we are talking in terms of a first time offender with a Low BAC (blood alcohol concentration) level. This is the .08 or .09 case, where you are charged with both NY Common Law DWI (VTL 1192 (3) and DWI "per se" (VTL 1192 (2)


It could even be a .07 case where you are only charged with a NY common law (VTL 1192 (3)) DWI (NO BAC needed). You are probably thinking, well I'm so close to being NOTHING (no charges, no violation, NO DWI) I should get off completely? Makes sense right? But Close only counts in horseshoes and hand grenades, close is not going to make it all vanish and I'm going to tell you WHY?

The Perfect Storm: The NY Low BAC DWI

1. No Jury will hear this type of case.

The DA (ADA: Assistant District Attorney) is going to drop the DWI right before trial. He will try you only on the DWAI, driving while ability impaired VTL 1192 (1). This now becomes a violation case. You only get a jury trial on misdemeanors or felonies NOT on violations. So a Judge will hear and decide your case. You will have a bench trial, the Judge is fact finder, law giver, and the ultimate decider. Watch out if he is pro-prosecution.

2. You now must overcome a Legal Presumption: .06 BAC or higher = Impaired.

With a breath or blood test of .06 BAC or more you are Pre-Sumed to be Legally Impaired by Alcohol unless you can prove otherwise. You are beginning with being guilty unless proven innocence.

We call this burden shifting. The Burden is usually on the prosecutor to prove you guilty beyond a reasonable doubt. Because legally you are Innocent until Proven Guilty in all criminal cases, not so with this low BAC level DWAI case.

3. DWAI has a very low legal standard (jury/judge instruction)

While DWI (intoxication) = mental and physical incapacity to operate (drive) a car as a reasonably prudent driver, DWAI (impaired by alcohol) = any degree (extent) of impairment.

Add to all of that the costs (mental, emotional, money, time) of a trial, even a bench trial and the chances of success may be low. Of course, every case must be evaluated on it's own merits, I am generalizing here but so often people who desire the NOTHING (complete dismissal/not guilty) may have the worst of fact patterns.

Was your driving was terrible? Was your behavior outrageous? Was your physical and mental abilities questionable? Every little thing must be looked at.

DWIs usually ONLY have POLICE (law enforcement) WITNESSES

Because the police are the main witnesses, and they may not be as accurate and/or kind as you imagine them to be. Your version of the event and their version may be radically different. They may embellish (exaggerate) your problematic behavior. Let's not call it lying, let's just call it bias or a law enforcement filter.

Risk vs. Reward

All of this must be taken into consideration before discounting the DWAI plea offer. Getting nothing may be possible, is it realistic? is it doable? is it worth the cost of proceeding to trial? No one likes to lose, I take on fights I can win but if it's THE PERFECT STORM I think twice before taking out the boat?

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