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.