New York Criminal Lawyer Blawg

In order to understand criminal law in New York and how to properly defend a criminal matter it is necessary that the accused and the criminal defense lawyer both have a very good understanding of the different types of criminal offenses in New York. This will help the criminal defense lawyer explain the levels of offenses and the consequences of the offenses.

All criminal offenses in New York begin with the charges or the Accusatory Instrument. In New York the Penal Law (criminal laws) and other laws differentiate criminal offenses according to the level of punishment. In New York criminal defense the three areas of offenses are Felonies, Misdemeanors and Petty Offenses.

The Felony--
The Felony is the most serious offense in New York State. It includes crimes from murder to grand larceny. The levels of felonies in New York range from A-1 felonies, the most serious, to Class "E" felonies. The punishment for a plea or conviction to a felony can range from fines, probation or a state prison sentence. A state prison sentence is served in a New York state facility "upstate" for a term of over one year.

The Violent Felony--
The violent felony is defined by the penal law section 70.20(1). These are specific types of crimes but do not necessarily have to involve a violent act. With respect to sentencing a violent felony offense will carry with it a determinate sentence (6 years) as opposed to an indeterminate sentence (2 to 6 years).

Misdemeanors--
The misdemeanors in New York are divided into class "A" misdemeanors and class "B" misdemeanors. Class "A" misdemeanors are the more serious crimes (ie. criminal possession of a controlled substance in the seventh degree, assault in the third degree) and carry with it a potential of up to one year in the local jail such as the county jail.

Unclassified Felony or Unclassified Misdemeanor--
If a crime is not identified by the New York state Penal Law then the offense usually will be deemed "Unclassified". For example the New York state DWI laws are under the Vehicle and Traffic law (VTL) and therefore are unclassified. An unclassified Felony is treated as a class "E" felony while a unclassified Misdemeanor is treated as a class "A" misdemeanor for sentencing purposes.

Petty Offenses--
A petty offense is the least serious offenses in New York state and include violations and traffic offenses. A conviction for a petty offense is not considered a criminal conviction. Punishment can include incarceration (15 days) in the local jail but can also include fines, restitution, state surcharges and/or community service. For example, disorderly conduct is a penal law petty offense as is harassment in the second degree.

When charged with a petty offense alone fingerprints and photographs will not be taken by the police department or state police and the accused is not entitled to a jury trial. Driving While Ability Impaired (DWAI) (VTL 1192.1) is another example of a petty offense or a violation.

If the defendant is convicted of a petty offense the conviction is normally sealed. If the original charge was more serious and the case was reduced to a petty offense the matter will normally be sealed and any fingerprints or photographs will be destroyed.

The criminal defense and the criminal defense attorney--
In New York it is important to understand the nature of the charge and any potential sentence as a result of a criminal conviction. The top criminal defense lawyers will review the charge with an accused to understand the nature and the type of criminal matter. As it can be seen from the criminal law blog, a Felony is very different from a Petty Offense.

All offenses have serious consequences for the accused or the convicted. Consequences include employment consequences or driving license suspensions. The best criminal defenses lawyers will explain the offense and any of these collateral consequences.

Under the New York State DWI laws there are several types of driver's license suspensions that a court and/or DMV can impose. The top DWI lawyers will be able to discuss the fine differences in each of the DWI suspension laws. In this DWI blog we address the "Prompt Suspension Law" that a motorist can face sometimes even prior to talking to a DWI lawyer. Usually in counties such as Westchester, Orange, Rockland, Putnam and Dutchess a motorist will be brought before a judge without the benefit of an attorney since most of the courts in those counties are part time. The Prompt Suspension Law is the first DWI suspension a motorist may face.

The DWI Prompt Suspension Law falls under VTL 1193(2)(e)(7) and applies to an accused who is charged with DWI and who is alleged to have a blood alcohol content (BAC) of more than .08% at the time of the arrest. At this point the Court will suspend the motorist's license during the pendency of the case if certain requirement under Pringle v Wolf, 88 NY 2d 426 are met.

The second DWI Prompt Suspenion Law under VTL 1193(2)(e)(1) applies where a motorist is charged with DWI, Aggravated DWI, DWAI drugs or a combined charge and who either has been convicted of a prior DWI VTL 1192 in the past five years or is charged with vehicular assault or vehicular homicide in connection with the DWI arrest.

Lastly, the DWI law under VTL 1194(2)(b)(3) applies to a motorist who is charged with a DWI under VTL 1192 and who has refused to submit to a chemical test.

Prior to the enactment of these laws the prosecutor would seek to suspend a motorists license under VTL 510(3-a) but since these new DWI laws for the prompt license suspension have been enacted it should be argued that the prosecution can not use VTL 510 to suspend a driver's license to get around the above requirements.

Since most people rely on their driver's license for work, school and/or medical appointments it is very important to discuss the prompt suspension law with a DWI attorney. The best DWI defense will hold the prosecution to their burden or proof to protect the motorists license.

In almost every DWI case in New York State there are two tests of a motorists Blood Alcohol Content (BAC) but they are very different tests and treated under the DWI law in a different manner. Many DWI arrests in Westchester, Orange, Rockland, Putnam, Dutchess counties involve these two tests and create confusion for those arrested for DWI offenses.

This DWI blog will discuss the "breath screening test". By contrast a DWI Chemical Test is a test usually done via breathalyzer, urine or blood test. The breath screening test is the test usually preformed at the arrest scene utilizing a hand held instrument about the size of a cell phone. The motorist blows into this handheld device and a BAC number registers. Typically this number is greater than the later DWI chemical test.

A breath test pursuant to VTL 1194(1)(b) refers to a preliminary test of a DWI suspects breath for the presence of alcohol. The device used is called an Alco-Sensor or PBT. A refusal to submit to this breath screening test is a traffic violation.

The DWI Laws make it clear that a motorist is under no obligation to submit to a breath screening test unless the motorist has been involved in and accident or committed a VTL violation. This test is a search within the meaning of the 4th amendment and can only be done with probable cause.

Importantly the Alco-Sensor test is not admissible at trial but the Courts have held that testimony regarding the defendant's attempts to avoid giving an adequate breath sample for Alco-Sensor testing can be admitted into evidence as consciousness of guilt.

Commonly the District Attorney will try to have the test admitted at trial but the top criminal defense lawyers will object as the courts have held this test should not be admitted. In Westchester County DWI arrests the prosecutor usually asks the judge to allow testimony that the motorist failed the test but agree not to disclose the actual results. The best DWI criminal defense is to object to the prosecution strategy as it can prejudice the jury.

In any DWI defense the goal is to limit the amount of evidence the prosecution has against the accused. If enough evidence can be eliminated the productions case can become extremely weak. This is one type of evidence that can be excluded from a jurys consideration during a DWI trial.

Leandra's Law

Under the new DWI law in New York State the penalties for a DWI conviction either a felony or misdemeanor have changed to include the mandatory ignition interlock device. Under Leandra's law any person sentenced for a DWI felony or misdemeanor on or after August 15, 2010 must have an ignition interlock device installed on any vehicle they own or operate and a ignition interlock restriction will be posted to the back of the New York State driver's license under the DWI law.

The New York State DWI Leandra's law includes the following:
1. Aggravated DWI with a child 15 years old or younger in the vehicle
2. Any conviction for Aggravated DWI with a child in the car or Aggravated DWI with a BAC reading of .18 percent or more the sentence must include the ignition interlock for at least six months.
3. Any DWI conviction with a BAC of .08 or more must include the ignition interlock as part of the sentence.

Basically, any convition in New York State of DWI with a BAC reading of .08 percent will require the ignition interlock device.

Ignition Interlock Device

An ignition interlock device is a computer installed in a vehicle to measure the BAC of a driver before the vehicle will start. It requires the operator to blow into the machine to determine a BAC level. If the BAC level of the operator is .25 or above the car will not start.

The device is sophisticated. It will register the time of the test, the BAC level, may require an additional test at random intervals and some systems have a camera attached to record who is blowing into the device. All of this information can be downloaded by the provider.

The costs for installing this device usually fall upon the convicted driver. It is approximately $100 dollars for installation and a monthly fee of $75.00 to $100.00 applies.

When reviewing a DWI case in New York State the New York DWI lawyer must be aware of the new Leandra's Law and the ignition interlock device. It is important to know all of the consequences of a DWI felony or misdemeanor conviction and how that conviction will affect ones ability to drive in New York or elsewhere.

As driving for work, medical appointments, school and leisure is very important a review of the law is necessary in any DWI defense.