The Law Office of Rex M. Pietrobono

2 Sarles Street
Mount Kisco, NY 10549

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The Law Office of Rex M. Pietrobono

When a matter is scheduled for trial, there are several conferences which would occur in Chambers between the prosecutor, the defense lawyer, and the judge. Sometimes there is also a mental health professional and a court clerk present. The matter is discussed from all angles, including the question of what the defense is looking for and what the prosecutor is looking for. The Court may let its inclination be known to some degree and the degree of congestion of its trial calendar.  If they can reach a settlement agreement then the matter does not need to proceed to trial, but if they are just too far apart then the matter will likely go forward. Prior to scheduling a trial, hearings will typically take place to try and narrow some of the issues and flush out the potential weaknesses in the case and to get the testimony of the arresting officer on the record ahead of trial. A hearing is like a mini trial with a focus on specific legal issues which need to be addressed before ad hoc attempts to raise it during a trial. There should not be any surprises at a criminal trial.

Frequently we make some type of suppression motion to limit or outright prevent some evidence or testimony to be introduced at trial. That could mean a motion to suppress some of the observations of the police officer or some of the alleged statements of the motorist during the arrest. We might move to suppress a refusal to take the chemical breath test from being introduced adversely at trial or we might challenge the foundation for it and perhaps get that precluded from the trial, which would then leave the people with just the SFST observations of the police officer. Then, those observations would then be challenged based on their possibly faulty administration of the tests and the subjective purported results. The prosecution will make its best offer and the court may or may not opine as to whether they think that is a fair one.  A court’s affirmative or passive participation in the negotiations varies from judge to judge; but they can play a huge role in settlement if they are willing to extend themselves – not to prejudge, but to preview perhaps.

Judges don’t always get actively involved in the negotiations but they can act as a bit of a sounding board for how they may rule in such a case if they were to be the finder of fact at a bench trial or the presiding judge during a jury trial. In this way, you get an idea of what they think of the case, where it might go and if they think there could be a favorable result for example if defense claims were substantiated at trial. That is also a consideration as to whether you want to put the matter down for trial.

A judge is not supposed to impose a harsher sentence upon an accused for simply exercising their U.S. and NYS Constitutional right to challenge the case against them at trial. That being said, there is  potential for a harsher sentence issuing from a court that views the defendant as having put them unnecessarily through this lengthy process if there’s no real issue of fact or law adduced at trial.

For example, if there was a pre-trial offer from the People of a Conditional Discharge with no probation, but the defense elected to go forward anyway and was unsuccessful after trial, the Court may consider a sentence of probation.   The Court would then request a pre-sentence report from probation. Unfortunately, this almost always results in a recommendation of probation supervision for three years accompanied by an in-depth report on the defendant’s background, family, work and social history. It is just another one of the many factors to consider in evaluating how to proceed with the case.

Will I Be Offered A Plea Deal If It Is A 2nd, 3rd Or Subsequent DWI Offense?

It really depends on the county. If you have two or three priors, the answer is probably going to be no. There will be no real offer. They will either be seeking probation or some period of incarceration in that instance. While that may be the case, we still have a shot at demonstrating directly to the judge the motorist’s acceptance of responsibility in spite of a history of alcohol related offenses (largely depending upon the time frame that the priors occurred). I have had recent cases with priors from 24 years ago and more.  In that situation you can certainly show that they have matured since then and have become more responsible and that no additional supervision is necessary despite their history.

In other cases, a person may get a string of alcohol arrests for one reason or another within a short period of time. That becomes a problem, because the court is always afraid of releasing somebody out into society with an opportunity to drive if there is a chance that they will get yet another DWI or perhaps get into a fatal accident. That is a fear that they have, and it is part of the responsibility of the defendant’s attorney to mitigate that apprehension by demonstrating the steps that have been taken by the defense to avoid any repetition of the behavior.

Significantly, the potential for dramatic problems for a recidivist DWI motorist has been extended beyond the courtroom. As an agency of the government, the NYS DMV has rules and regulations dealing specifically with repeat DWI offenders. At the urging of our state’s governor in 2012 DMV enhanced the penalties for repeat offenders. Expressly, there used to be a 10-year relevant look-back period. Before the 2012 change, the DMV would look at a motorist’s history only for the previous 10 years when assessing the consequences for repeat offenses. That period was extended to 25 years.  So now a motorist’s whole 25-year history will come into play in determining additional out-of-court penalties for a motorist convicted of multiple alcohol/drugged-driving related convictions or incidents.

That does not solely include alcohol related offenses in the DMV’s calculation – convictions for traffic offenses also play a critical role. For example, three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, without a serious driving offense and whose revocation DOES result from an alcohol or drugged driving conviction or incident, will be denied relicensing for five years in addition to the court’s statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock.  And, that is without a serious driving offense on their 25-year old record.

Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, with a serious driving offense will be permanently denied a driver license, unless there are unusual, extenuating and compelling circumstances (and, DMV rarely if ever, finds “compelling circumstances”).

A motorist’s history of traffic tickets dramatically come into play here since commonly issued tickets for cell phone use and passing a school bus discharging its passengers are among Serious Driving Offenses (SDO) (i.e., 5 points).  An SDO includes a fatal accident, a driving-related penal law conviction, conviction of two or more violations for which five or more points are assessed, or a total of 20 or more points from any violations.

Thus, if you have 20 points or more of serious traffic violations in the last 25 years, the additional penalties start with a five-year driving ban in addition to the court sentence. After that period, it’s five years with an Ignition Interlock Device (IID) and a conditional license if the DMV decides to grant one.

If they have five or more alcohol/drugged-driving related convictions or incidents on their 25-year lifetime driving record will be permanently denied a driver license, unless there are unusual, extenuating and compelling circumstances. These penalties carry over beyond just New York State. A person cannot just move to another state and try to get a license there instead because they are going to look back at the New York State record before issuing their own license.

Every traffic ticket conviction can play a serious role for a motorist in the future and the consequences of multiple DWI offenses can be extremely challenging.

For more information on Taking A DWI Case To Trial In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 301-7500 today.

Rex Pietrobono

Call Now For A Free Initial Case Evaluation
(914) 301-7500