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By proadAccountId-378438 16 Dec, 2016
When you make your first court appearance on a DWI, whether you are held by the police to see a judge, or released on a desk appearance ticket, the process is the same.
  1. The judge will ask if you have an attorney, and if not, can you afford an attorney? If you can’t afford one, and qualify for assignment of counsel, you will be assigned an attorney. 
  2. Your attorney, retained or assigned, will get a copy of the charges and your RAP sheet. 
  3. If you have an attorney representing you, they will waive a reading of the charges, meaning that the judge won’t need to read the charges to you in open court. 
  4. If the charge is a misdemeanor charge, your attorney will enter a plea of not guilty on your behalf. If the charge is a felony, the court does not have jurisdiction to take a plea of not guilty. 
  5. The DA may serve upon the court any statements made by you, or and out-of-court identifications that they intend to use against you at trial, which they have to serve within 15 days of your arraignment. 
  6. The judge will suspend your drivers license (NYS licensed drivers) or your privilege to drive in NY State (license from another state). The way the judge suspends your license will depend on what you are accused of
    1. Alcohol DWAI (BAC .05-.07): no suspension 
    2. Standard DWI: suspension pending prosecution - hardship possibility 
    3. Refusal DWI: suspension pending DMV refusal hearing (within 15 days of arraignment) - no hardship possibility 
    4. Drug DWAI: Can’t suspend without a lab report, unless judge suspends pursuant to VTL 510.30 - that you are a danger to other drivers based upon the circumstances. 
  7. Your attorney may, or may not, be able to ask for a hardship hearing (not in refusal cases) if you can demonstrate that the loss of your license will cause an extreme hardship for you in getting to work, school or medical appointments. (Check out the hardship page on this site) 
  8. The judge will ask for an alcohol or drug evaluation (OASAS evaluation), and can order that the evaluation be done through a monitoring agency (TASC). If you have an attorney prior to your first court appearance, they can set up an evaluation at a private OASAS provider. 
  9. The judge will determine your bail status. Your release or the amount of bail that will need to be set, which will depend on: your prior criminal record, your prior warrant record, where you live, if you are employed, family ties to the area, and the circumstances of the case. 
  10. The case will be adjourned for a few weeks in order for your attorney to try to negotiate with the DA, review the evidence, and for you to get the OASAS evaluation.
By lemaster 11 Apr, 2016
An Adjournment in Contemplation of Dismissal (ACD) is one of the best case outcomes that can be offered in a plea bargain, aside from a complete dismissal. If you are offered an ACD, you will be able to resolve the case without entering a guilty plea. For an ACD, the case is adjourned for six months (or one year if it is for a possession of marijuana offense or a family offense), and as long as you stay out of trouble for the six month (or one year) period, the case will be dismissed and sealed at the end of that period. What that means, is that at the end of the six month or one year period, the case will be off of your record, and you will have no criminal conviction as a result of that particular arrest.

You may be able to get an ACD offer if this is the first time you have been arrested, and you are charged with possession of a small amount of marijuana. In situations where the charges are not based on marijuana possession, being offered an ACD will depend on the circumstances of the case, the level of the offense, your criminal history, your age, and the county in which the case is being prosecuted. For example, it is easier to obtain an ACD in Manhattan, Bronx, Queens or Brooklyn then it is to get one under the same circumstances in a county outside the city.

Another circumstance where an ACD may be offered is when the DA’s case is weak, or the alleged victim is not cooperative, which frequently happens in domestic violence cases. In those types of cases, you need to discuss the merits of taking the ACD vs. pursuing the case to try to get a complete dismissal.

There are a few drawbacks to receiving an ACD. While the case will ultimately dismissed and sealed when you are given an ACD (provided that you complied with the terms of the ACD), during the period prior to the dismissal, the original charges are still open. That means that if anyone is running a background check, for employment or otherwise, they will be able to see the open charges. Another problem with an ACD is that it may be restored to the original charges if you get arrested again, especially if the new charges are in the same jurisdiction or are the same type of offense. You need to speak to your attorney about the benefits and drawbacks of accepting an ACD prior to deciding how to proceed with your case.
By lemaster 11 Apr, 2016

The Serial Podcast ( http://serialpodcast.org/ ) took the podcast world by storm and allowed people to really get into the anatomy of a criminal case, from investigation through the consequences of a questionable conviction. After listening to the whole podcast, which unfortunately did not come to a conclusive ending, I wondered if it shed any light on how it is possible for a person to be convicted, even though there should be reasonable doubt as to the person’s guilt. I won't take an opinion either way about the guilt or innocence of the defendant, Adnan Syed, but I do not believe that the DA’s Office should have been able to prove their case beyond a reasonable doubt, as there certainly should have been some doubt.

The question then becomes; did the prosecutor frame the case in a way, leaving things out, to get a conviction at all costs; and/or did Adnan’s defense attorney do a sub-par job, ignoring a crucial alibi witness, Asia, who saw Adnan in the library at the time the crime took place.

Unfortunately, it is all too often that DA’s Offices work to convict the person accused of the crime, regardless of the evidence in the case. There have been many innocent defendants that have gone to jail or executed, only to be later to have their innocence proven. There must be something wrong with a system in which the conviction rate is valued more than getting justice and finding the correct defendant, because justice is certainly not served when an innocent person gets convicted. In addition, there have been countless instances of DA’s Offices withholding exculpatory information from defense attorneys in order to prevail at trial. While this practice is hopefully on the decline, any prosecutor that withholds exculpatory evidence should themselves be prosecuted and face prison time.

As far as Adnan’s defense attorney, she certainly did not provide adequate representation, especially as shown in the light of her ultimate unraveling as the case progressed and she became sicker and more desperate for money. Any criminal defense attorney would pray to have a solid alibi witness to put their client anywhere but the crime scene. It is unfathomable that Adnan’s defense attorney would not have sought that information, and would not have used that at trial. In fact, that would be the cornerstone of my defense, and I would put it in the first line of my opening; “Adnan was not there!”

So after hearing all of the podcast evidence, if the same evidence is presented at trial (and if I were defending Adnan, I would want Sarah Koenig advising me), I do not think a jury would be able to say that they think Adnan is guilty beyond a reasonable doubt. Whether or not he is actually  guilty, that is another story. Hopefully, the reporting on this story has fueled a renewed look at the evidence, and an appeals court will reverse the conviction and/or remand it for a new trial.

By lemaster 11 Apr, 2016
In a DWI refusal policy change beginning in December of 2014, the Westchester DA’s Office will no longer reduce the first DWI misdemeanor to a violation DWAI if the driver refused to take the breathalizer. Additionally, the same guideline change was made for a DWI where the driver has a BAC (blood alcohol content) of .14% or higher. This policy change is significant, and puts Westchester County DWI and DWI refusal enforcement along the same lines as Nassau County. Attorneys with DWI clients that are charged with DWI refusal of the breathalizer, or blow with a BAC of .14% or more, will now need to take their case to trial to try to avoid a misdemeanor conviction.
By lemaster 11 Apr, 2016

Over the past several weeks, as a result of the growing tension between the NYPD and NYC Mayor Bill de Blasio, members of the NYPD have refused to enforce “quality-of-life” crimes, including loitering, public urination, solicitation and subway-fare jumping. With the NYPD ignoring the Broken Windows campaign, the number of arrests have dropped dramatically, and with it, the amount of revenue that is usually generated by the imposition of fines and surcharges in the courts.

Although, perhaps the opposite should be true, if the police are not spending their time with the small quality-of-life offenses, then we may not need as many police officers, or the ones we have don’t need overtime. As a system, the cost (in man hours, legal services and incarceration) of all of the quality-of-life offenses, which are more likely to be committed by individuals that are appointed an attorney, is probably higher than the income generated from the fines and surcharges imposed by the courts. So ultimately, the City might save money by not arresting low-level offenders, if it reduces the amount of money necessary to pay to the services required when an individual is arrested.

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