The Most Common New York DWI Conditional Discharge Violation

If you got sentenced to a DWI with a Conditional Discharge in New York State this is the most common violation you need to be aware of.



Forewarned is forearmed.

Lindley, New York: Trooper Speed Trap

Upstate New York has lots of little towns with many speed traps. The top speed limit is 65 mph and the NYS troopers show no mercy in this regard.

Steuben County is beautiful this time of year but don't be distracted, your speed can get away from you. This part time court with part time judges can often be difficult to communicate with.

Have your tickets evaluated and explore your options with a traffic attorney before you decide to do anything. Quite often out of state people can be represented without any court appearances.

Newman and Cyr is a boutique DWI and traffic defense firm located in Ithaca, NY and serving the Finger Lakes region.

http://www.ithacadwi.com

larry@ithacadwi.com

607-229-5184

New York Charges Dismissed: Facial Insufficiency

Insufficient facts can get cases (and their charges) dismissed. This is Law 101. First thing, review the allegations they are making out against YOU. Look at all these facts carefully. They should be non-hearsay, not conclusory, and if true would make out the elements of the crimes charged.

Police need to allege facts that support their charges against you. 

If not, if they are facially insufficient your attorney can then move to have them dismissed. Motions to dismiss are granted by judges when there are not enough, poor, bad, or unclear facts.

What is Facial Insufficiency? 

Every crime has elements that must be met for you to be proven guilty. Some crimes require INTENT. That you intended to destroy property or that you knew that your driver's license was suspended. Some violations require a PUBLIC element. That your behavior caused a public disturbance.

The prosecutor and the police must set out these elements in their complaint or information against you. If the allegations do not support the crime, if they do not meet the prima facie burden, then you can move to dismiss the charges against you.

Charges that require INTENT can't stand up against you without INTENT.
Charges that require serious damages must have them alleged in the complaint against you.
Charges that require a public highway or road must allege the road or highway.

Quite simply a Prima Facie case needs prima facie evidence, evidence on it's face (at face value) without further interpretation or inference that you in fact did something and as if everything alleged were TRUE.

A recent July 2018 New York case of harassment and criminal mischief faced just such a challenge.

In People v. Toro, a guy hit his girlfriend, her phone went flying and broke. Police charged harassment and criminal mischief.

Toro plead guilty to the crime of criminal mischief in full satisfaction and went to jail. While in jail his 2nd attorney filed an appeal based upon the information's facial insufficiency to support the crime of criminal mischief. Toro had not intent to damage the phone, none was made out in the information against him. The first attorney may have missed this on reviewing the evidence against Toro.

1. There were no allegations that Toro intentionally damaged the phone.
2. There were no allegations that Toro had a mindset to damage the phone.
3. There were no allegations that Toro had conduct that showed he wanted to damage the phone.

Toro only wanted to hit his girlfriend, so maybe harassment charges (a violation) were supported by the facts but NOT the crime of criminal mischief.

The second judge dismissed the criminal mischief charges and Toro was released from jail after serving two weeks of his sentence.

Always read any complaint or information against you and see if it makes out the elements of the offense charged. Always have your attorney make sure that all the facts (non-hearsay) if true would in fact make out the charges.

How to Violate a New York Conditional Discharge

The conditional discharge is the most common sentencing option in New York but if you violate you are then re-senteced. The judge can re-sentence to jail, probation, or a combination. This video highlights the various ways to violate a NY CD.

This ways you can violate a CD include many extras with a drug or alcohol based offense. In many DWI and DWAI drugs case the CD is a great end result because you self monitor and self supervise your obligations to the court.

New York State Probation on a misdemeanor DWI can be hell on Earth because you are regularly tested for alcohol and/or drugs. 

For the average adult person to be so restricted is difficult to impossible. You give up many of your constitutional rights to privacy and person. You will be subject to many unreasonable rules. 

I consider New York probation as having a parent with power over you. Generally parents lose control over you after you turn 18. They may influence you but have NO true power. Probation departments through out New York state run the gamut from easy to extremely hard on their probationers.

Can Speeding Violate a New York Conditional Discharge?

The most common New York sentence is the conditional discharge. It is most commonly given for one year, and has a specific set of terms and conditions. A CD in NYS is like no other, so don't try to compare CDs from anyplace else. It happens after you are convicted. Think of it like probation without a probation officer to check up on you. You monitor and supervise yourself to complete and perhaps provide proof of completion of obligations.



For a DWI CD, it may mean you need to complete the Impaired Driving Program, have an IID (ignition interlock device) on your car, and stay out of trouble for the year.



If people get into trouble in that one year they can be brought back to court and re-sentenced on their charge. The new sentence can include jail and/or real probation (with a probation officer).

But what does it mean to stay out of trouble with a NY CD?

NO new arrests (legal arrests)

NO new criminal charges (misdemeanor or felony)

NO new charges relating to higher level violations (harassment, disorderly conduct)

NO new charges relating to drugs and/or alcohol (Unlawful possession marijuana, public intoxication)



By itself a moving violation or speeding ticket will NOT usually violate a CD in NY. But if you receive along with that moving violations other charges, these may violate.



Reckless driving is a misdemeanor (crime) in NYS

AUO (aggravated unlicensed operation) is a misdemeanor or felony level offense as well



These will violate a CD. Discuss your situation with a local lawyer to weigh your options with any conditional discharge violation.

Can Speeding Violate a New York Conditional Discharge?

The most common New York sentence is the conditional discharge. It is most commonly given for one year, and has a specific set of terms and conditions. A CD in NYS is like no other, so don't try to compare CDs from anyplace else. It happens after you are convicted. Think of it like probation without a probation officer to check up on you. You monitor and supervise yourself to complete and perhaps provide proof of completion of obligations.



For a DWI CD, it may mean you need to complete the Impaired Driving Program, have an IID (ignition interlock device) on your car, and stay out of trouble for the year.



If people get into trouble in that one year they can be brought back to court and re-sentenced on their charge. The new sentence can include jail and/or real probation (with a probation officer).

But what does it mean to stay out of trouble with a NY CD?

NO new arrests (legal arrests)

NO new criminal charges (misdemeanor or felony)

NO new charges relating to higher level violations (harassment, disorderly conduct)

NO new charges relating to drugs and/or alcohol (Unlawful possession marijuana, public intoxication)



By itself a moving violation or speeding ticket will NOT usually violate a CD in NY. But if you receive along with that moving violations other charges, these may violate.



Reckless driving is a misdemeanor (crime) in NYS

AUO (aggravated unlicensed operation) is a misdemeanor or felony level offense as well



These will violate a CD. Discuss your situation with a local lawyer to weigh your options with any conditional discharge violation.

Scott Miller is My Choice for Ithaca City Court Judge

I've known Scott Miller even before he was Judge Scott Miller. In my opinion no one in Ithaca, NY is better suited to be Ithaca City Court Judge. He cares about doing a great job. That is why he reviews his cases in advance of court, asks questions, and takes an active involvement in the process. He is certainly not a rubber stamp judge by any stretch of the imagination.

Refused a Breath Test: How to Get Your License Back?

Lots of calls about how to get a license after a DWI refusal

I have spent way too many hours going over and over the same things with DWI refusal callers. I make these videos to bring some clarity to how the DWI refusal in criminal court is separate but yet so important to the licensure.

New York Refusals are not illegal but they do have consequences.


The New York DWI refusal is unlike any other state. In some states the refusal itself is a crime with separate penalties. Written into the New York legal statute is a very important piece of information. Two penalties with the breath test refusal: one year license revocation (New York) and consciousness of guilt instruction from judge to the jury. That is the reason for your refusal (they can infer) is you were conscious of your own guilt. And one other provision that many people know nothing about.

The New York DMV allows NO license UNTIL a plea to a VTL 1192 Offense

You will not get your license or license privileges back UNTIL your criminal case is completed, and has a plea to a VTL 1192 offense. The 1192 offenses are either:


DWAI alcohol VTL 1192 (1) Driving while impaired by alcohol

or

DWI alcohol (common law) VTL 1192 (3) Driving while intoxicated


This plea of guilty to one of these can be by three means:


1. bench trial with the judge (non-jury trial)

2. plea bargain with the prosecutor (either the DWAI or DWI)

3. jury trial

Trials with DWI refusal cases are generally better to defend because there is NO BAC number. 

The prosecution has NO blood or breath blood alcohol concentration to hang their case upon. So the whole case hinges on the police testimony (opinion) of law enforcement. In some cases with witnesses they can testify as well either to your sobriety or intoxication.

All DWI common law (opinion) cases are a matter of degree.

In other words what was the degree of your impairment by alcohol? Were you merely impaired or truly intoxicated by alcohol. That is the million dollar question.

California License with New York DWI

California and other out of state license holders have to be made aware of the challenges of dealing with a New York DWI. Administrative (license) penalties can be double. There are things you can do to lessen the problem.



California is notoriously slow when dealing with any car related matters. SOURCE: my son sold cars out there for many years. Getting a tag (plate) for your car is ridiculous (many, many months).



So first thing I tell anyone going through a New York DWI with a California license is, get your certified = official CA driving record as soon as possible. It has to be ordered by snail mail or you have to walk it through.



People who are residing in New York state should make this request because New York will not give you a conditional license (school, work, medical) without showing a fresh (recent) certified abstract showing nothing is wrong with your California driver's license.

New York Conditional Discharges The Three Myths

New York conditional discharges are the most common sentencing disposition so why are they so confusing. This video destroys the three main myths about CDs in New York.



The three most common myths about Conditional Discharges:

1. Conditional discharges do not dismiss any of your criminal or non-criminal charges.

The court outlines a set of conditions or obligations which must be performed. These will usually have dates assigned for completion. The judge may require proof that you went to classes, did community service, paid fines, got a drug/alcohol evaluation, went to therapy/treatment, or other condition.



The discharge is a release from your obligations with the court.

2. Conditional discharges do not seal any of the charges.

The public will be able to assess your records. They will show up on background checks. The only way to seal any criminal charges is by filing a sealing motion (after 10 years).

3. Conditional discharges are not forever.

The CD has a specific period of time, usually one to two years from the date of sentencing. This is a general stay out of trouble or do not get re-arrested for anything.



Conditional discharges can be attached to violation level and criminal level offenses.