Sunday, January 28, 2018

How to Use Opinion Letters for DWI Defense

We are living in one of the greatest times in history. Yet with all the online information there is still a glut of mis-information and straight out lies about DWI defense. Recently I received an email which stated the following:

Easily Reduce or Drop DUI Charges

The email further goes on to state that the mechanism (or process) by which to get your charges (even felony level) easily dropped or reduced comes down a just one single legal opinion letter concerning travel to Canada.

Can opinion letters be used to defend New York DWI charges?  

In New York State just how "easy" is it to reduce or drop misdemeanor DWI charges with opinion letters?

Facing the charge of a New York DWI felony, is that charge "easily" reducible or droppable using a legal opinion or other opinion letter?

How can opinion letters be used best to defend New York DWI charges?

The Word Easy and DWI Should Never Be in The Same Sentence 

I have practiced law for two decades. In those twenty years many important legal victories only came after much time and hard work. I would never be one to state that easy is an adjective ever to use with DWI or DUI or OUI or DWAI or any charges resulting from driving under the influence of alcohol, a substance, or a chemical.

Cases Involving Drugs and/or Alcohol are Always Taken Very Seriously

These cases are generally taken very seriously by prosecutors, probation departments, and judges. Since they stem from a person using substances then the root cause may be an issue with the abuse or misuse of a substance. This is cause for community concern because judges and prosecutors have an obligation and a duty to protect the public.

DWI are Cases Involving Drugs and/or Alcohol View the Public as the Victim

The public is always the victim with a DWI case. It states that in the police paperwork. Even without injury or damages the public (or any poplin particular) is the perceived victim or potential victim. Understanding that societal viewpoint helps us gain perspective and ideas for presenting our opinion letters of defense to a judge and prosecutor. Defense is NOT always about innocence or guilt, it is also about fairness and justice under the circumstances. Each individual has a story that can help in his defense. Where you have come from, where you are currently, and then where you hop to be in the future. People trade on hope and count on it's presence.

from South Park, I love Canada just NOT
Misinformation about Canadian Opinion Letters and DWI

The Truth about Canadian Travel Plan Opinion Letters and New York State DWI Charges 

The ad (email) I received stated the following:

After writing hundreds of legal opinion letters to judges and DAs about the hardships a DUI or other conviction can cause, I've learned that felony charges can be often reduced — or even dropped completely — by invoking the defendant's need to travel to Canada. 
By presenting a legal opinion letter to the D.A. or judge prior to conviction, and explaining the impact of a felony on the defendant's travel plans to Canada, the severity of many felony charges can often be substantially lowered, especially for first time offenders. 
Now maybe in states with DUI (driving under the influence) instead of DWI (driving while intoxicated) this is true? But I don't think so because I am licensed in four states and in all four of them PA, NJ, NY, and FL this is NOT the case.

Opinion Letters About Canadian Travel are NOT Effective for DWI Defense

An opinion letter concerning the ability to travel to Canada would do very little in terms of reducing the impact, substantially lowering, or even dismissing the charges. If it's a New York State felony DWI, the likelihood is that this is a second DWI within 10 years. The defendant is facing up to four years in state prison so getting that reduced because they can't travel to Canada, really?

When I read this I thought about how much I love South Park on Comedy Central but this information is not being presented for humor. So what are some effective opinion letters to be used to defend a DWI?

Effective Opinion Letters can Be Timed to Be Used Pre-Plea Negotiations and/or Pre- Sentencing

The timing of opinion letters is as important as their content. If you are seeking a plea offer reduction and who isn't ? Then they must be used prior to your plea of guilt to any of the DWI charges. Pleaing before sentencing and then having a PSI is the normal course of events but this can be altered if your defense attorney feels it is best to get the probation department's opinion early with an early investigation (pre-plea). This is a great defense tool, especially with harder felony DWI cases or those cases involving an accident and/or injuries or high BACs or multiple drugs.

Quite often New York State probation departments can be liberal and holistic in emphasizing rehabilitation and treatment recommendations over punishment on DWI charges. But this is NOT always the case. New York Probation has a philosophy of ratcheting up punishments and not just jumping to incarceration.

Sometimes in New York your defense attorney can request this PPI instead of waiting on a PSI. PPI is a pre-plea investigation by the local county probation department. PSI is a pre-sentence investigation by that same department. It's purpose is to make recommendations based upon a person's needs, as in persons in need of supervision and monitoring. What might that supervision and monitoring entail?

They can also recommend alternatives to incarceration. They can make a host of opinions as to what would be best in this situation and to improve this person's chances of a successful future.

Whether with a PPI or PSI, the probation department performs an investigation as to your overall life in multiple areas: health, education, family, mental, social, vocational, substance use, etc. Its is a lengthly report of many pages after reviewing and talking to many people. It can help or hurt your DWI case. The PPI or PSI is like one intensive opinion letter about you and your current situation.

Three things to make this opinion letter the best it can be to help you:

1. Present yourself to probation like at your interview for an important job
2. Be open and honest with probation because they will discover what you are dishonest about
3. Make sure you tell family members or friends or business associates and counselors that probation will be contacting them and they should prepare to respond accordingly

Sometimes the probation department can be your only friend in the game (aside from your defense attorney) so this is a very important opinion letter. Judges and prosecutors do read and give great weight (generally not always) to the PSI and PPI reports. They often view the local county probation department as a neutral party to the proceedings without a separate agenda. Local probation along with the judge and prosecutor want a safe community. This theme goes back to support who is the victim in a DWI case, the community. So recommendations to support a safe community get the backing of the District Attorney and the judge.  

Opinion Letters from Clergy, Friends, and Family Can Be Effective in Reducing Punishments

The Character Opinion Letter

We have used character opinion letters from prominent and not so prominent members of community who know our client. They can vouch for their past character, past history of stability, employment, and community contribution.

This type of letter generally has three parts:

1. How they know or have come to know the client.
2. That they have full knowledge of the current circumstances by the client.
3. Why they feel leniency in sentencing is appropriate and justified.

These are the reasons that the judge and prosecutor should consider prior to sentencing. These letters should be rather short, not beyond a page in length. They should also be sent to the judge and prosecutor through his attorney as a package with all other pre-sentencing or pre-plea paperwork.

Letters of opinion as far as format is concerned, 8-1/2" x 11" paper is preferable. Letters which are typewritten are more attractive, legible, and, as a result, more likely to be read. 

Letters of opinion on criminal case should never be sent directly to a judge or prosecutor. They must be read if sent by an attorney, they must go to both the judge and DA, and they will have a greater impact if sent as part of an equity (fairness) package.

Opinion Letters from Treatment Providers, Addiction Counselors, Therapists, Psychologists Attesting to Sobriety and Progress with Recovery

The Treatment Opinion Letter

Opinion letters from evaluators and treatment providers concerning progress with rehabilitation and treatment proves our client's commitment to recovery. They can be part and parcel of a pre-sentencing package presented to the prosecutor (district attorney) and the judge.

These letters will need to state specific dates of treatment, classes, programs, progress, drug and alcohol testing results, and an opinion as to overall commitment by the client to their sobriety. Attach log sheets showing all attendance at AA, NA, and treatment locations to bolster the opinion letter's truthfulness.

Judges and prosecutors can be moved by these types of treatment documentation to:

  • lessen jail time
  • probation time from 3 to 2 years on misdemeanors 
  • move from years of probation to a conditional discharge
  • move to alternatives to incarceration like the sobrietor (at home breath testing), house arrest, monitoring SCRAM bracelets, and community service hours  

The Job/Employment/Career/License/Profession Opinion Letter

Future Employment Impact Opinion Letter

We have represented doctors, lawyers, engineers, and bank presidents. People with high level security clearances, responsibility for maintaining sensitive and private public information like social security numbers and financial data may lose their jobs and careers with a criminal conviction.

Many jobs with large organizations and companies have standards and rules for employment. Violating those rules while employed may be grounds for dismissal. DWI charges whether misdemeanor or at the felony level can impact positions of employment. Having a letter from a supervisor that explains the potential ramifications of a criminal conviction or punishment on your keeping a job or even continuing a career path can sometimes sway a prosecutor or judge to change their position.

We have used letters like these to have charges reduced and punishments curtailed because of job and career loss.

Three things this employment letter must have:

1. Letter is from a supervisor with company letterhead
2. State the position, it's requirements, and job responsibilities
3. Estimated likelihood and type of impact of a criminal conviction

Opinion Letters for Members of the Armed Services Charged with a Crime

In addition to civilian punishments, all military members (army, navy, air force, marines) that serve in their branches have their own set of consequences for anyone even charged with a crime. That's right, even without a criminal conviction those in the armed services (or even non-armed) like the Coast Guard charged with a DWI can be facing rank demotion, loss of career progression, or even a discharge.

Letters from their CO and proof of their tours of duty can go along way to highlight a commitment to service and why they deserve a break with DWI charges.

New York Criminal Defense Leniency is Generally NOT Reducing or Dropping Charges

Sometimes opinion letters are highly effective with lessening the consequences of conviction. Leniency is usually mitigating (reducing) punishment. Any reduction of charges is usually based upon the case facts and proof, alcohol level, lack of an accident or injuries, additional drugs/substances, and the client's legal history.

I'm sorry but not being able to go to Canada is NOT considered a hardship by the majority of judges and prosecutors. Even with those Canadians charged with a New York DWI, their ability to travel is a minor consideration with sentencing and punishment.

Contact and consult with a New York State Criminal defense attorney to get a legal opinion on the impact of anything upon New York criminal charges. Of course everything written here is just my legal and personal opinion, others can always disagree online or off.

Lawrence (Larry) Newman is a criminal defense and DWI lawyer in Upstate New York. He is a partner in Newman and Cyr a boutique Ithaca, NY law firm focusing on defense in the Finger Lakes region.