Understanding the New York DWI PSI (Pre-Sentence Investigation)

There is not much written online concerning the process surrounding New York State's system of determining who receives a sentence of probation for a misdemeanor DWI. It is a mystery to many. I believe as a DWI defense lawyer that uncertainty is a nightmare for those going through this process. In this blog, and the next I hope to explain the procedure in simple terms.

First, the vast majority of DWI cases as well as other criminal cases in this state are negotiated with pleas. The cases that go to hearings and trials have issues that need to be addressed by either Judges and/or Juries.

If the case is resolved with a negotiated plea then the District Attorney may or may not agree (as part of the plea agreement) to waive a PSI (Pre-Sentence Investigation). What that means is that the District Attorney may or may not be seeking a term of Probation as part of the final sentencing of the Court. He may be seeking probation for your DWI because of the results of your drug/alcohol evaluation, the amount of your BAC (Blood Alcohol Concentration) at time of your arrest, a DWI involving (property or people) damages, prior criminal history, prior history of drugs and/or alcohol abuse, your age, and driving history.

For all New York State DWI Misdemeanors Probation Terms are for Three Years.

NOTE: Probation could be terminated early (less than a three year term) by your attorney filing a Motion with the Judge after a period of "good" probation. "Good" meaning a period of time in which you have no problems, no committed offenses, and/or crimes, involving the use of drugs, and/or alcohol.

A PSI is where you are interviewed by the Probation Department (usually of the County's Probation Office in the city in which you live) to determine an appropriate sentence for the crime being pled to. NOTE: If you are from Out of State, Probation can not be recommended by the department because it can not be transferred to another state or country so it unlikely that probation will be part of sentencing. Unfortunately, since the Judge and DA can not give a term of probation they may seek some jail time.

Now the Court (The Judge) can still seek a PSI (Pre-Sentence Investigation) before rendering it's sentence because ultimately the Judge must agree to "the deal" struck between both sides (Counsel for the defendant as well as Counsel for the State of New York). This can add many weeks to the process between making a deal, and having a final resolution of the matter. Sometimes PSIs (and their final report to the Court) can take four to six weeks even though the actual interview usually takes less than an hour.

The way that it works is if after a final disposition (case outcome) by negotiated plea bargain if can go one of two ways:

If the Judge and DA both agree to a CD (Conditional Discharge) then there is NO Probation and no need for a PSI.

OR

If a PSI is ordered by the Judge then Probation department will contact the defendant and set up an interview. This is a "this is your life" type of interview and review. Probation is usually for people who need supervision. Supervision normally entails being watched over with random screenings and tests for the use of drugs and alcohol. It is also likely to include some type of drug counseling/rehab/treatment program and/or mental health counseling.

In my next blog I will detail what goes into a PSI report, and how a probation determination is made.

Defending Marijuana Possession Charges

As part of my practice of the defense of DWI and other traffic related matters I often have to deal with other drug offenses. It is all too common that a bong, pipe, and/or other paraphernalia (vaporizers, spoons, hammers, chillums, bubblers, sidecars, sherlocks, raydiators, tubes, bats, headies) are found inside the car. All the police have to do is scrape together enough resin/residue, and another criminal charge is added to the fray.

Over the course of my years of practicing in the Fingerlakes I have defended many college students from SUNY Cortland, SUNY Binghamton, Cornell University, Ithaca College, Keuka College, etc. Marijuana use seems to go with college like cereal goes with milk. Some people think that New York State has decriminalized marijuana, sometimes it is only charged as a violation, but even in relatively small quantities it can be charged as a misdemeanor or even as a felony (if sold to minors).

There were 92,800 arrests for Marijuana in New York during 2007. Males aged 15 to 24 made up 56% of those arrested, and 70% of those males were white.

NOTE: After any lawful arrest in an automobile in NYS the entire car is subject to search top to bottom, inside and out. So much for your 4th amendment rights in New York State.

Outside, in a public park or on the street we have a different story. Police will sometimes make a false statement ie. lie to get an arrest. I know, as unbelieveable as that may sound Virginia, it happens. Law enforcement will tell college kids that they "have to" make a search. That if they want to avoid an arrest they should empty their pockets, and to show them what they have or else? Legally they could only pat you down for weapons, but to go into your pockets requires permission or probable cause, but once the marijuana is exposed to public view we have a full blown misdemeanor.

Here is a ranking of the New York State Pot Laws from least severe to more severe (in terms of penalties and consequences):

1. UPM under Penal Law 221.05: Unlawful Possession of Marijuana is not a crime it is merely a violation BUT since marijuana is a controlled substance under Federal Law a plea of guilty will make you ineligible for Federal Financial Aid (thank you President Clinton) for one year. Side note: Marijuana is not considered a controlled substance under New York State Law but we are discussing Federal Student Loans, Federal Work Study Monies, Federal Grants, and the Federal Hope College Credit.

UPM is possession of less than 25 grams of marijuana. In the majority of these cases (with first time offenders) your attorney can move for an ACD (adjournment in contemplation of dismissal) or a straight dismissal of the charge. The judge will set the term of staying out of trouble (no new criminal charges) FOR EITHER 6 MONTHS OR ONE YEAR. It is in his discretion. Also in his discretion is whether there is a substance abuse evaluation. Some judges also require community service.

The next level up of Marijuana offense is:

2. CPM under Penal Law 221.10: Criminal Possession of Marijuana in the 5th degree. This where the marijuana is either open to public view, burning, or where the amount is over 25 grams but less than 2 ounces. CPM is a crime. It is class B misdemeanor.

The next level up of Marijuana offense is:

3. CPM under Penal Law 221.15: Criminal Possession of Marijuana in the 4th degree. This is where you have more than 2 ounces but less than 8 ounces. Now that's what the District Attorney will say is real weight, and they are thinking at this point you are dealing drugs and not just possessing them for personal use. CPM in the 4th is a class A misdemeanor.

4. Penal Law 221.35 is for the Sale of Marijuana. All that is necessary is less than 2 grams or one joint/blunt. It is a Class B misdemeanor. Sale is a very loose term under the statute. Sale also includes gifting or an exchange of anything, as no "consideration" is needed under the statute to consider it a sale.

5. Penal Law 221.40 is for the Sale of Marijuana. Less than one ounce. It is a Class A misdemeanor.

The next two levels are where we move from misdemeanor level offenses (less than a year in jail) to felony level offenses (more than one year in jail). Misdemeanor offenses can be handled by City, Town, or Village Courts. Felony charges are only handled at the County Court level.

* Beware that Sale of More than ONE OUNCE moves the offense to Class E FELONY Status in New York State (punishable by up to 3 years in State Prison).

* Beware of New York State Penal Law 221.50. Sale of Marijuana to a minor (a person less than 18 years old). It is a Class D Felony Status. Which is punishable by a term of 4 to 7 years in State Prison, that's not county jail.

I would like to end off with the GOOD NEWS about number 1 through 5 above:

That Penal Law 221.05 UPM (Unlawful Possession of Marijuana), Penal Law 221.10 CPM (Criminal Possession of Marijuana) in the 5th degree, Penal Law 221.15 CPM (Criminal Possession of Marijuana) in the 4th degree, Penal Law 221.35 Sale of Marijuana, and Penal Law 221.40 Sale of Marijuana are all covered under the First Time Offender ACD statute.

New York Criminal Procedure Law Section 170.56.

Captioned as "Adjournment in contemplation of dismissal in cases in involving marijuana."

If a person qualifies under the statute a motion can be made by his attorney, and then his marijuana charges may be dismissed in the future, and all his official records and papers relating to his arrest and prosecution, whether on file with the Court, the police, or the New York State Division of criminal justice services will be sealed and not made available to the public or private agencies.

Upon the granting of such an order by the Court, the arrest and prosecution can be considered and deemed a nullity (as if they never happened) and the person shall be restored to his or her pre-arrest status.

If of course someone has has other prior charges (relating to marijuana and/or other drugs) then his attorney can potentially negotiate to some other non-criminal disposition, such as disorderly conduct. This is a violation and all the records of the arrest and prosecution would be sealed at the local level.