What makes DWI cases in New York unique from DWI cases throughout the rest of the country?
a. How is defending them different?
Defending a DWI in New York is different than most jurisdictions because the suspension pending prosecution law punishes the accused before he or she is actually proven guilty beyond a reasonable doubt. The law allows nay mandates the sitting tribunal to suspend the accused’s license if he or she has a BAC of .08 or higher at the time of arrest. This places an extreme burden and hardship on the accused and in many instances “makes” that person plead guilty quickly and without real thought to defending the case to the end. (92)
b. How do the laws and strategies change?
The Defendant who has had his or her license suspended pending the prosecution of the matter does have the right to requests a hardship privilege or in other words a conditional license where it can be demonstrated the person has no available travel methods and the conditional/hardship license will allow this person the ability to travel to and from work. Some court do not allow a person to argue they need a car for the entire work day as they need to travel all day for work since the statute reads only to and from work. Most local judges in this region believe it best to allow the person the ability to travel even during the work day so as to maintain their standard of living.
In addition, New York state has implemented a Criminal Jury charge that will presume the accused guilty if he or she failed to take a breath test. A difficult charge to over come without some real showing of circumstances that may have merited a refusal. Unless you are unconscious or in someway incapable of consenting to the request the cards are stacked against you. While the law does makes sense it places the accused in the position of proving his innocence as opposed to the people proving guilt.
c. What legal skills and law firm resources are necessary when defending DWI cases in New York?
Negotiation skills are by far the single most important tool needed when defending a DWI matter. You must diplomatically convince the District Attorney to reduce your clients charge to one outside the alcohol category which is simply not an easy thing to do. The amount of “Court Watching” groups involved in New York make the type of movement difficult as it almost always receives scrutiny from all ends. At that point the District Attorney must present viable and cohesive reasoning for the charge to be moved from the alcohol category. Such as problems with the stop, breathalyzer and the like. In addition, if you are planning on taking the matter to trial then the ability to understand highly technical systems is a must as you will need to break down the breathalyzer test and attack its credibility all the while keeping a jury in on the “discussion”. Keep in mind the jury will automatically grant the Breath test credibility as a scientific tool and such “CSI” tools are usually given more weight in the mind of a juror and rightfully so. Yes, it is true DNA testing has been proven as defective at times but let’s be honest, for the most part it works and everyone knows that.
Further, and if your client can afford this, the use of experts, photographers, and investigators is a must when defending these matters. The costs are in the thousands but worth it when the technical aspect is at the heart of your dispute. The use of a retired New York State Trooper who has had 30 years of experience to testify the procedures used in your case are incorrect and cause doubt in the final performance of the breath test machine are almost immeasurable.
Investigators can take statements from witnesses at the scene concerning the stop of the vehicle or the road side tests used as well as shed light on the indicia of intoxication the police officer is alleging against your client.
Photographers can help since they will take pictures of the scene in a professional manner and in one best suitable for the courtroom. For example a picture of the intersection may show the allegation that your client went through a stop sign as the basis for the stop as invalid as there was no stop sign.
However, the attorney should always take the time to visit the scene as it will allow a better understanding of the incident and the particulars to your case.