Saturday, August 27, 2016

Ithaca DWI Lawyer: Using The Equity Defense in New York DWI

Understand How the Judge Views
Equity and Fairness

DWI Equity Defenses = Fairness in Prosecution

eq·ui·ty

ˈekwədē/

noun

1. the quality of being fair and impartial.

Many DWI cases we defend have horrible facts, terrible video, and usually involve multiple charges. In situations like these criminal defense attorneys must look beyond the facts, and beyond the law to the defense of EQUITY. Ah sweet equity, the word just rolls off your tongue, and it can be for all intents and purposes a savior of sorts.



Can we inject fairness into what some believe is an unfair DWI process?



Equity #1: The First Time Ever DWI Charge


Now if you had a murder case, a homicide, it would be difficult to argue or to explain to anyone well it's their first time doing this. They never killed anyone before so let's give them a break this time. Not happening with a homicide, but with a DWI as a first time offense, this is a strong first argument. The fact that a person never did any illegal act, and never had any involvement with the system is a strong indicator that it is likely that they will not return. So the first strong equitable DWI defense is always the first timer.


Allaying the Biggest Fear of DWI Judges and District Attorneys


DAs, ADAs, and Judges all fear the dreaded recidivist. The person who comes back to violate the law again and again strikes fear into the hearts of judges and DAs. Worse than the repeat offender is perhaps the second timer who is far worse than their first time.

Imagine this time we have an accident, we have injuries, and worst of all a fatality. Nobody, and I repeat nobody within the DWI courts wants to see the same person again and again.

What a recidivist potentially shows or indicates is an abject failure of the courts, a failure of the prosecution, and a failure of the system. Somebody at some point did not do their job or failed to do their job properly. The Courts, and the DA are a filter of sorts, and they must filter out people in need.


Picking out the DWI P.I.N.S.: Persons in Need of Supervision


The New York State Probation department uses the acronym PINS for kids (persons) in need of supervision. PINS is for People that need to be monitored and checked regularly. People that need the help, and the assistance of local county authorities to manage their lives. 

How the courts pick out problem DWI offenders or select people or in fact screen them is a multiple step process of degrees. 

Just the DWI or DWAI Facts of the case 

The first line of screening is a judge review, and a prosecutor review of the facts of the case. 

FACT 1: How much alcohol? Were there drugs? Were there both?

A High BAC (blood alcohol concentration) DWI or drug DWAI or combination drug and alcohol DWAI will trigger increased scrutiny and review. High is anything approaching twice the legal limit of .08 in most courts. A .15 BAC DWI demands a drug/alcohol evaluation.

Fact 2: Was there an accident?

Accidents are the real cause of concern in DWI cases.

Fact 3: What time of the day or night was the DWI or DWAI drugs?

A DWI or DWAI drug case during the day indicates a problem user or drinker. A DWI or DWAI drug case involving a crash is a public issue. The main reason for DWI patrols is to prevent accidents and injuries due to drunk or impaired driving.

Will the judge or prosecutor want a PSI Pre-Sentence Investigation (probation department review) of this person before making an offer or deciding a final sentence?


Equity #2: The DWI Drug/Alcohol Evaluation

In 2016 just about all NYS DWI defendants will have to be assessed and evaluated. Many judges will NOT resolve a case without a certified OASAS evaluation in hand. Some attorneys try to fight against the system but it is just the judge doing their due diligence.

In fact, many Judges are also now conditioning their DWI sentencing upon the completion (with proof) of any and all recommended treatment based upon this evaluation.The importance of a alcohol evaluation for any drug and/or alcohol related criminal matter can never be overemphasized.

Evaluations are always important to the final disposition of your case because they can influence the view of the District Attorney, the sentencing by the Judge, the license re-instatement by the DMV, and any future investigation of an employer, certifying or licensing body, or anyone placing you in a position of responsibility.


This DWI/DWAI evaluation will likely follow you for life so take it seriously. 

Remember that it's purpose is to assess you for need of help, assistance with a problem, or supervision. The evaluator will render a diagnosis (a problem) or no diagnosis (no problem). This diagnosis will have a level and this will also come with a recommendation.

Are they recommending treatment, education, supervision, in-patient, out-patient, etc.?

Evaluators can be psychologists, psychiatrists, social workers, and nurse practitioners. That is why the approach taken (by these health care evaluators) in the giving of assessments may be different and diverse. The goals are the same but sometimes they can be highly subjective.



If you have questions about a DWI or DWAI drugs charge in New York, you can call us at 607-229-5184

Or find us online!  





BY NEWMAN & CYR 
Copyright 2016.  Educational Use Only.

If you are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes of a charge --including the potential loss of your freedom. 



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