Monday, November 11, 2013

Cortland Lawyer Understanding Revocable DWI Sentences: The CD and Probation

Probation Departments have a Tough Job
Monitoring and Supervising Thousands of People

I get calls from people asking what is this thing called a CD (conditional discharge)? What does it mean? Nobody (my attorney included) explained it to me.

So to begin there are TWO main types DWI revocable sentences:

The CD (one year) and Probation (two or three years). They can be more similar than you think.

Note: Most judges will sentence to the old standard of three years. Probation is also called "community supervision." Probation is always monitored in the county of your residence NOT the county of the DWI occurrence.

Final Court Dispositions

Sentencing is the final disposition of your DWI case. The last day you will hopefully need to appear (physically) in Court. Although some judges like progress updates, these can usually be faxed or mailed to the Court.

The Court's final sentencing SHOULD clearly state how things are to be disposed of in the future by you for the Court. Should is a big word because in busy Courts (like in the City) or with busy lawyers (like legal aid or public defenders), you may not fully understand what is expected of you. I believe that your lawyer SHOULD give you a final summary of what is expected (what you still owe) of you. This can be in the form of a closing letter. Many lawyers give you nothing (as to a closing document).

Are you to just owe something to the Court directly for a CD or owe something to County Probation? Owe "as in" have an outstanding obligation or a duty that must be satisfied. The entire DWI sentence will have a list of things that need to be completed by you. Each condition will have terms (timelines, due dates). If not completed by this or that date or time, you are then delinquent!

Common DWI CD and Probation Obligations

1. Court fines and NYS surcharges;
2. VIP (victim impact panel) attendance;
3. DDP (7 week DMV drinking driver program);
4. Drug/Alcohol OASAS Evaluation;
5. Ignition Interlock Device installation and monthly checks;
6. Treatment and/or rehabilitation for drugs and/or alcohol;
7. Counseling for mental problems;
8. Commit NO new crimes, NO new arrests for anything!

RE-vocable Sentences are Cancelable 

Both the sentence of probation, and of a Conditional Discharge can be revoked by the Court. The sentence given by the Judge can be cancelled by the Court at a later date. This is usually due to a Delinquency. Delinquencies are usually in the form of unmet or incomplete obligations. If you did not do something at all, or complete something fully, then the Court can bring you back (command you) into court for a re-sentencing on the plead to charge. If the Court discovers you were re-arrested, you can also be brought back to Court.

When the delinquency is during probation it is usually called a Violation of Probation (VOP). Remember that both Violations or a delinquency only require a very low level of proof. It is far less than the beyond a reasonable doubt standard of proof required for criminal charges.

CDs and Probation are in lieu of a sentence in jail. 
Jail = Punishment

There is always the possibility of a jail sentence after a violation or delinquency of a revocable sentence. Jail is to punish and to deter future bad behavior. This is because CDs and Probation are intended as Rehabilitative sentences. These are NOT supposed to be Punishment focused sentences.

Conditional Discharges and Probation are Supposed to be Therapeutic and Rehabilitative

In Letterlough 86 N.Y.2d 259 the Court of Appeals reversed defendant's DWI conviction because of the UNLAWFUL condition that the Court imposed which required a scarlet letter license plate that stated "convicted of DWI." The Court stated that Probation (and CDs) must not be designed with the primary purpose of punishment or deterrence. Conditions of Probation (and CDs) are supposed to be fundamentally rehabilitative.

CD or Probation Conditions are to be made based upon the following criteria:

1. reasonably related to rehabilitation of this specific person;
2. individually tailored in relation to the offense;
3. reasonably necessary to ensure this person lead a law abiding life.

What is required to Start a Delinquency (Violation) Action Against YOU?

This is under CPL (criminal procedure law) 410.70:

1. Someone must claim that the delinquency or violation occurred during the CD or Probation time period;
2. Reasonable cause to believe (civil proof standard) you did violate;
3. A written declaration of delinquency;
4. A decision on a probation officer (or ADA's) request within 72 hours;
5. Prompt, reasonable, and appropriate action to make you come to Court.

What are "My" Potential Defenses to a DWI Delinquency?

1. Is there reasonable cause that you really violated?
Ignition Interlocks are not infallible. Relapse is common among those with addiction.

2. Was this infraction (violation/delinquency) intentional?
Did you miss a payment or treatment because of financial or family or medical reasons?

3. Did you have to drive a Vehicle without a device for some higher purpose?
I had a client who drove a work truck a short distance, and received an AUO. This also lead to a probation violation. The Court and probation forgave based upon his excellent history and the purpose for the driving in this instance.

Who can Send a Notice of Delinquency or Violation? 

The ADA (assistant district attorney) can file a notice of delinquency;
The Probation officer can also file a violation;
The Court (judge) can file a notice of delinquency.

All of them or none of them can decide to violate you. Sometimes a person on probation will violate multiple times but NOT be violated by their officer. Sometimes one big mess up can trigger it. I have seen the gamut over the years.

Main Factors that Determine Whether You Will Be Violated (declared delinquent):

1. Your history with the Court post sentencing;
2. Your history with Probation post sentencing;
More time, more completion of tasks, more progress (good history) less chance of being violated.
3. Your relationship with probation and the Court (judge);
Have you been honest? Have you been trying to complete and comply? Have you been an annoying and fighting every step of the way?
4. Was your original case and charges very serious (accident/injuries)?
5. Were you given a chance (opportunity) by the Court and Prosecutor at rehabilitation?
6. Who is your probation officer?
7. Who was the Judge on your case?

This is both for a CD or Probation.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

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 90% 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 440 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.