Monday, November 21, 2016

Ithaca DWI Lawyer: New York DWI Charges: Are there Alternatives to Jail?

DWI sentencing alternatives
need to be considered  
New York State has a great many programs under the hub of "ATI" Alternatives to Incarceration. An alternative is merely an option. So an option other than going to jail may seem attractive at first glance.

Is Jail a Usual Sentence for a New York DWI ?

In many cases a misdemeanor DWI and DWAI will not result in a jail sentence but some will. In DWI cases where there was an accident, property damage, physical harm, high Blood Alcohol Concentration, multiple drugs, and/or erratic behavior and/or reckless driving prosecutors, judges, and the probation department all have cause for alarm. Someone with a history of drug and/or alcohol problems or an older DWAI or DWI will also ping the radar.

In many New York Felony level cases which indicate a second DWI within 10 years jail and/or prison is in the discretion of the sentencing judge. For a first class E Felony the exposure to prison time is a scary reality. If a Felony level DWI case is the second in five years then 5 days of jail (or up to 240 hours of community service) is mandatory.

Are there Safeguards to a New York DWI Incarceration?

The first N.Y. safeguard is the probation department because at the very least any of the above aggravating DWI factors will trigger a PSI. The judge, the prosecutor, and even your defense attorney can ask for a PSI in a misdemeanor case (it is mandatory with any Felony level case).

A PSI is a Pre-Sentence Investigation by the county probation department. It has to be done by the county in which you reside (in county of arrest for out-of-state offenders). The PSI is an assessment of needs of the individual with a potential problem which calls for assistance.

The PSI report covers each and every aspect of person's life history, and makes a final recommendation for the prosecutor and the court. For any county probation department to make a jail or incarceration recommendation it MUST be made by COMMITTEE. No one person makes a recommendation for incarceration in New York State.

The second safeguard is that the underlying philosophy at the heart of NYS probation is Graduated Sanctions. Punishment is supposed to ramp up gradually, less invasive measures to be tried first. If a person has already been unsuccessful with prior options then gradually the sanctions increase if they are proving not to be effective. In other words things don't go from zero to sixty without cause or reason. We should not throw people in jail if other means are available that would be more appropriate and suitable. 

Is there an Option for a NO Jail Sentence for my N.Y. DWI?  

In the 62 counties of New York State, and the 6,200 plus courtrooms there are approximately 165 alternative programs available. Here comes the big but,,, BUT not every county has all of these available for a DWI, and not every judge will agree to them for a DWI, and not every prosecutor will offer or agree to an Alternative To Incarceration, and not every probation department has the resources to provide an alternative in every situation.

In Waterloo, NY, for a Felony level offense the Seneca County Probation has community service, electronic home monitoring, and a device called the Sobrietor for alternatives to county jail. The Sobrietor connects to a land based home phone (an antique) so that the offender can directly send (via breath sample) their BAC to the probation department for monitoring. The EHM (electronic home monitoring) tracks not only BAC but also has a GPS to track movement. Restrictions can be placed upon where you travel and when.

As much as many people would think an alternative to incarceration is a no brainer, each alternative has it's benefits and detriments. In our next blog we will explore the downside to non-jail alternatives.