Ithaca DWI Lawyer: Is Your DWI Charge Dismissed if the Prosecutor Takes Too Long?

I Used to Love this Cartoon
Being Speedy Can Be Empowering

Time marches on but in the world of New York legal defense time can be friend or foe. You see the prosecution, aka the government only has so much time to bring and to prosecute charges. These are called your speedy trial rights.

How long does the prosecution have to try and to prosecute you on a New York DWI charge?

What happens if the prosecution waits too long? 

Does the judge just dismiss all the DWI charges? 

Speedy Trial on a New York State DWI Misdemeanor is 90 Days

Now that 90 day time frame begins from the commencement of a legal action. This is where the two parties, criminal defense and the prosecution stand in front of the judge and the prosecutor announces "we are READY for trial your honor."

New York State Criminal Misdemeanor Charges and 30.30 Speedy Trial

If the top charge against a DWI defendant is VTL 1192(2), this means a BAC of .08 or more, and this misdemeanor carries a maximum jail sentence of a year. Accordingly, pursuant to CPL 30.30(1)(b), the people must be ready for trial within 90 days of the commencement of this action. 

Once a defendant has shown the existence of a delay greater than the time allowed by CPL 30.30, the burden of showing that time should be excluded falls upon the people (see, People v. Santos, 68 NY2d 859, 861 [1986]).

Exclusions of Time Under NYS CPL 30.30 Can Be a Great Many Defense Things

But many things can prolong those 90 days. If the defense asks for pretty much anything,  the normal and necessary request for discovery (breath test, police narrative, field side sobriety tests, video, blood test) will toll the time period. How are we to defend a case, be ready for  a trial if we don't have any evidence? Time is tolled against us, not for us.

DWI Suppression Hearings will Toll Time Against Us Under NYS CPL 30.30 

If the defense asks for a hearing to exclude evidence or to cross examine the police or additional time for anything, well then the time is again tolled. Time is held against the defendant anytime a delay is caused by the defense.

But what if in fact the time goes by, the prosecution is so busy they forget about you. Well your defense attorney can file a motion based upon your statutory right to a speedy trial under Section of Criminal Procedure Law (CPL 30.30). This is called the 30/30 motion.

If the DWI Criminal Misdemeanor Charge is Dismissed Under 30.30 What Then?

Just because the prosecution can't prosecute you on the criminal misdemeanor DWI under VTL 1192 (2) or common law DWI under 1192 (3) they can still bring the charge of DWAI alcohol under VTL 1192 (1). You say how is that possible to be prosecuted under the driving while your ability is impaired by alcohol?

VTL 1192 (1) NYS DWAI is a Traffic Violation Level Offense and therefore Doesn't Have Speedy Trial Protection Under 30.30

The Traffic Infraction Charge of Alcohol DWAI

VTL 1192(1) is "a traffic infraction which triggers no statutory speedy trial rights under CPL 30.30" (People v. Gonzalez, 168 Misc 2d 136, 137 [App Term 1st Dept] [citation omitted], lv denied 88 NY2d 936 [1996]). As such, that portion of a 30.30 motion which seeks dismissal of the VTL 1192(1) charge pursuant to CPL 30.30 is denied.

The prosecution has more up it's proverbial sleeve than you can imagine and one of those things is still being able to prove impairment by alcohol. Even though this is a lesser level offense, it is still alcohol related and has many punishments associated with it.