Each case is different and there are no guarantees. Here are rough answers to some questions we hear frequently.
Q: Can we reach an agreement with the prosecution?
A: Generally, a good attorney can get a first DUI charge reduced to a DWAI violation. In some counties, it is more difficult to lower a DWI if your blood alcohol concentration (BAC) is particularly high. The individual prosecutor may have a fixed number in mind. For some, that means more than 0.15. For others, it can be 0.18 or 0.20. Others will agree to an agreement with the prosecution regardless of the BAC. Other factors can also prevent a plea deal, such as if the charge arose from a serious accident, if you have a criminal record, or if it is not the first DWI on your record. In such cases, a good attorney can obtain a reduction later if he finds any weaknesses in the prosecution’s case. A reduction is possible even with a high BAC if you obtain a substance abuse assessment and follow the assessment’s treatment recommendations.
[Update: Effective in 2007, a BAC of 0.18 generally results in an Aggravated DWI charge. In such cases it is generally difficult to get the charge reduced to DWAI, though an attorney can generally get this reduced to regular DWI – not much of a bargain however.]
Q: Do I need a lawyer?
A: No. If you want to plead guilty to the charge, or if you want to try to negotiate yourself, you do not need a lawyer. In many courts, a good attorney will give you a better deal than you will get yourself. In addition, a good lawyer can detect weaknesses in the prosecution’s case against you. A very experienced DWI attorney knows the ins and outs of these issues better than non-attorneys and better than most regular attorneys.
Q: Do I have to go to court?
A: Usually. Some out-of-state or area clients may not have to go to court if an attorney shows up for you. Other than that, New York DUI defendants have to appear in court. You will have to surrender your license and the judge will want to make sure you understand what to do. We have represented clients in other states and remote parts of New York State (such as New York City) without our clients showing up. Many judges are uncomfortable with that, but so far no one has refused to allow it. We even did it with a local client, where he was out of state visiting his mother in the hospital. But generally, for local customers, you will have to introduce yourself.
Q: Will my insurance rates go up?
A: Probably for New York drivers and maybe out-of-state drivers. A DUI conviction is reported on your New York driving record. If your insurance company finds out, your rates will almost certainly go up. In some cases, your insurance company will leave you as a customer and you may have to enter the assigned risk pool, where the rates are dramatically higher. Your insurance company may not know about it, and then your rates shouldn’t go up. If you are from another state, a DUI conviction in New York cannot affect your license or insurance, except in Quebec and Ontario. In our experience, reporting DUI matters to other states is inconsistent. They are supposed to be reported via the Driver License Agreement, but many of our customers have not been affected. On the other hand, some of them have been affected.
Q: Can we beat the load?
A: Maybe. Most DUI charges are difficult to overcome and will cost a lot more to fight than to make a deal. The police usually do a good job and the hard truth is that most of the accused are guilty. Still, the police sometimes make a mistake. They may not have had a good reason to stop your car. They may not have had enough evidence to require a BAC test. They may have done the tests wrong. You may have credible witnesses who can say you were not intoxicated. A good attorney can review these matters with you and provide you with better answers.
It makes more sense to fight a DUI if you have a prior DUI conviction (including DWAI) in the last 5 years, as you will probably not be eligible for a conditional license.
[Update: Based on some recent changes in DUI laws in New York and other factors, we generally feel that most cases should be fought at least through a motion and hearing. I discuss this in two more recent articles, one on DWAI and another on DWI and Aggravated DWI.]
Recent examples of DUI cases we are fighting include when the police pulled over our client for running a stop sign in a parking lot (generally not illegal), and another where our client was sleeping at home when the police Came to get it (the BAC test is probably invalid).
Q: What do lawyers charge?
A: Fees vary widely for DWI cases. There are some attorneys who charge as little as $ 350. I know of an attorney who starts in the $ 5000 neighborhood. Most good DWI attorneys charge a minimum of $ 1000, due to the amount of time involved in reviewing the case and making sure you get the correct result, and for the risk of having to return several times.
[Update: I found out that the expensive lawyer I referenced above actually starts at $7500. He is rather good.]
Q: What is the difference between DUI, DWI, and DWAI?
A: DWI stands for Driving While Intoxicated, which is a specific numerical BAC result of 0.08 or more (Section 1192 (2) of the V&T Law), or a general notion that you are intoxicated, proven by testimony and other evidence. of the nature of his disability (1192 (3)). DWAI stands for Driving While Ability Disabled (1192 (1)), and is generally considered to be when the BAC result is greater than 0.05.
DUI stands for Driving Under the Influence, and is a general term in the US for the subject. The term DUI is not commonly used in the legal system in New York State.
According to Law 1193 of V&T, the first and second convictions for DWAI are violations; they are not crimes and you cannot obtain a criminal record for a violation. A third DWAI is a misdemeanor. A first DWI is a misdemeanor. Subsequent DWI charges can be felonies.
