Sunday, February 26, 2017

Ithaca DWI Lawyer: DWI Probation By The Numbers

Some people who are arrested for a New York DWI are placed on community Probation Supervision. Whether an adult who commits a crime needs to be supervised is the real question? Some people who are convicted of DWI or a DWAI drugs absolutely need some form of monitoring post-sentencing. Now whether the monitoring is just having an IID (ignition interlock device) installed in their car or whether they need an overseer for rehabilitation and treatment for a drug/alcohol problem are two ends of the spectrum.

How does a county probation department make that determination for a DWI or DWAI drugs offense? Where does the decision for New York DWI probation truly begin?

Probation Supervision is More Common Than You Might Imagine

Approximately 1 in 52 adults in the United States was under community supervision at year end 2014. The community supervision population includes adults on probation, parole, or any other post-prison supervision.                                                                 (Bureau of Justice Statistics, November 2015)

In Tompkins County New York approximately 1/3 of all people on probation supervision and monitoring resulted from a DWI arrest. Some are on felony DWI probation and others misdemeanor DWI probation. Terms of probation for misdemeanors are commonly three years, and for felonies five years. Probation can always end early for good behavior, and can be granted after at least 1/2 the time is served.

The Factors in a DWI Arrest and Conviction That Make Probation More Likely

There are certain specific facts in every New York DWI or DWAI drugs case that make probation a more likely sentencing option for the judge, the prosecutor, and most importantly the probation department.

1. If the DWI or DWAI drugs offense resulted in an Accident. 

Probation or at least a review to see if probation is indicated (necessary) by having a PSI (pre-sentence investigation) by the county probation department. Over 20% of those with DWI arrests in 2015 Tompkins County with an accident received a term of probation. (Total: 336 DWI arrests, 77 with accidents).

2. If this is NOT the first life-time offense for DWI or DUI or DWAI drugs. 

Whether someone has had a prior DWI or DWAI 5 years ago or 20 years ago shows a history of alcohol or substance abuse. Under the new (2012 guidelines) two DWI or DWAI or DUI or any other OUI behavior within 25 years indicated a history of abuse and mandates treatment. You can't even get back full driving privileges UNLESS you complete a NYS OASAS treatment program for the New York State DMV.

3. If you had a high (.15 BAC) or a very high (.18 BAC) level of alcohol in your DWI or Aggravated DWI or your DWAI drugs charge involved multiple drugs and/or alcohol.

Tolerance to alcohol is shown by high BAC (blood alcohol concentration) levels. If someone is still high functioning (not falling down or passing out) with high levels of alcohol they have likely built this tolerance over time.

Factors that Indicate DWI Probation May Be Warranted Are Also On a Spectrum

Nothing exists by itself. All the factors are not viewed within a vacuum. Everything must be compared and contrasted. Or as the theory of relativity loves to quip, "all is relative."

Along the spectrum of good to bad or bad to horrible everything must be positioned.

Now anyone one of the above three factors can have their own variables. Accidents can involve one car or many. Accidents can be severe damages or merely minor damages. Accidents can involve no injuries and severe injuries. So an accident in and of itself needs to be fully checked out to see where it falls within the spectrum of bad to horrible.

Prior alcohol or drug related offenses also have variables. How old a person was at the time of their first DWI or DWAI offense? How much time has passed since that first offense? What has transpired since that first offense? Has anything happened recently that would account for a behavior change? Was this merely a one time error in judgment, a blip on the radar or an indication of something deeper with a cause that needs addressing?

Even Tolerance for alcohol or drugs has variances. Was the machine number accurate? Was there a combination of a drug plus alcohol that caused this DWI? Were the drugs taken prescription drugs or illegal drugs? Was a therapeutic drug taken improperly? Were these substances being taken recreationally?

Being placed on probation supervision and monitoring is NOT cut and dried. There are many nuances to be explored. This blog merely touches on three areas that will factor into the decision that is community monitoring and supervision for a period of years.