Friday, October 11, 2013

No Game of Chicken: The Default is Always to Plead Not Guilty to Criminal Charges

Nobody is Playing Chicken by Pleading NG!

Recent headlines have Andrea Sanderlin, AKA "Pot Mom" captured as the "anti-hero" and as giving up after she had initially plead NOT GUILTY to the Charges. The news loves drama but accuracy is another matter entirely. Sadly even many "law" sites and blogs have taken this same route to achieve ratings or rankings. When I read some of the stuff out there I think no wonder the public is so misinformed and confused.

"Initially, Sanderlin pleaded not guilty to the charges."

"It's not uncommon for defendants to plead not guilty as a strategic move."

"A "not guilty"-plea strategy is essentially a game of chicken -- a game that this mother of three apparently wasn't willing to play."

Who writes that entering a Not Guilty Plea is a Game of Chicken or a Strategic Move?

Any criminal defense attorney or anyone (clerks, bailiffs, staff) that spends any time in Court will tell you that pleading NG is what you do initially. It is NOT a strategy or a GAME. It is standard. It is the default setting.

What sense would it make to plead guilty to everything alleged by the government? 

Allegations and charges come about by the probable cause standard. This is a very low (read minimal) standard of proof. This is most certainly nothing that we would want to put people in prison for.

The Truth May Hurt but it is Liberating!


People plead NOT GUILTY to the charges against them everyday. In fact, if you say nothing or don't have an attorney at the time of your initial appearance the Judge by default will ENTER a plea of NOT GUILTY. This follows our Constitution, it is aligned with your fundamental rights as an American.

1. You start every single case with a presumption. It is called the Presumption of Innocence.

2. Secondly, the government has the burden, their hurdle is to Prove you guilty.

3. Lastly, this proof must be Beyond a Reasonable Doubt.

Coming into Court and being arraigned on charges is being apprised of what you are facing. These charges are usually the highest (most severe) possible. The prosecution (District Attorney) will stretch every iota of evidence to grasp at the harshest of the criminal statutes. This is normal. It allows them room to move down (negotiation room) and/or to tailor or offer a sentencing recommendation to the Court (Judge) in the future.

Who comes into Court and Pleads Guilty?

First off, no one in New York State facing criminal charges, especially Felony level criminal charges is going to be allowed (by a Judge) to even consider pleading guilty without legal counsel. Recent case law has decided that this is "ineffective assistance of counsel" and a reason to grant you a vacating of your plea (taking it back). You MUST have counsel to help you when CONSIDERING a criminal plea.

Secondly, any attorney representing you will look at discovery (government proof) and discuss it with you as a matter of ensuring and assuring what they do have against you (as to proof). This will generally not be provided immediately (at the arraignment) by the prosecutor.

Guilty Pleas are a Big Deal.

Generally, Way before someone comes in and enters a Plea of Guilty a defense attorney is also given assurances by the Judge and/or the DA as to a sentencing recommendation.

This maybe to a specific sentence, like 2 weeks in county jail, or straight probation, or a conditional discharge, or no greater than the PSI (pre-sentence investigation). Every serious case (felony level) will have a mandatory PSI. Some misdemeanor cases will also have PSIs. This is a review by the county probation department which will then make a recommendation to the Court and the DA of what they feel is an APPROPRIATE sentence for this person based upon their entire life history.

So back to this Game of Chicken thing?  

As I sometimes tell my kids, it just doesn't work that way!

If you have questions about your DWI/DWAI charges or other traffic violations within the Finger Lakes region you can either call me or send me an email.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 95% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 425 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.