Thursday, December 26, 2013

DWI in NYS-Time for some justice?

New York, like most states, has steadily made its laws against drunk driving more and more severe over the past few years. In 2008 NY added a new offense called "Aggravated DWI" that dramatically increased fines, revocation periods and potential jail sentences for first time offenders with .18% or more blood alcohol concentration. In 2010, yet another change was made that created a new "felony" offense for DWI while a passenger under age 16 was in the vehicle. At the same time the NY legislature added a "mandatory alcohol interlock" statute that now requires all first time offenders convicted of DWI to have an alcohol sensor installed on any vehicle they own or drive. These changes were additions to already existing statutes that gave NYS some of the mot severe DWI laws in the country.

These changes wouldn't bother me much, if the legal system wasn't completely stacked against those accused of DWI. After all, none of us wants drunks driving around in 3500 lb. vehicles. But, the way the system works now often means that many of those accused are coerced into pleading guilty to an offense that they may not really be guilty of. Those that choose to fight the charges against them find that unless they are able to afford expensive "experts" to testify about breath tests and so-called "field sobriety tests" they are at the mercy of system that assumes black box breath test machines and silly exercises conducted by cops are "reliable."

For the average citizen accused of DWI the "catch-22" nature of the law comes as a huge surprise. For example, take someone stopped by the police and accused of DWI. They had been given a few "sobriety tests" in the dark on the side of a road. For all intents the tests are designed to make people "fail," which gives the police the "probable cause" to arrest.  Once arrested they are transported to a police station and advised that they can either take a "chemical breath test" on a black box machine the police have, or they can "refuse" the test and be subject to a 1 year revocation of their driver's license.  Most people agree to the test.  The result of that test is the main evidence used against them by prosecutors.

The peoiple accused of DWI first appear in court they are subject to having their driver's licenses suspended "pending prosecution" as long as the police have given the court a sworn document that a "chemical test" had been administered to the defendant and it showed .08% or more blood alcohol level.  What this means is that before anything has been proven, before any evidence is heard, before a defense attorney has an opportunity to address any of the issues regarding the consitutionality of the arrest, the defendent's driver's license is suspended!!  Again, BEFORE ANYTHING is proven a defendant has his license suspended UNTIL something is actually proven in a court of law!!