Frequently Asked Questions

Q: What will happen on my first court date and do I have to be there if I have a Lawyer or Criminal Defense Attorney?

A: The first Criminal Court date is called an arraignment. On this day a plea will be entered to the charges (guilty, not guilty). Usually, the police reports and a list of charges (Complaint) are obtained. The defendant in misdemeanor cases will usually not have to be present if represented by an attorney. At arraignment, issues of bail are raised. For example, license suspensions may be discussed in DWI cases. This is just one example of why it is always important to have an attorney present at your arraignment.

 

Q. The police did not read me my rights, will my case be dismissed?

A. Law enforcement personnel are required to read you your "Miranda rights" only if two criteria are met. You must be in custody (usually "arrested"), and you must be interrogated (questioned about the details of the crime). A Miranda warning violation does not automatically result in the dismissal of a case. The statements that you made after the violation would be suppressed and not admissible as evidence if a lawyer is not provided.

Q. The police said I blew a .07%. Why was I still arrested and charged with a DWI ?

A. An arrest for DWI can be made at any blood alcohol level. Some counties routinely prosecute people with blood alcohol levels below a .08% Blood Alcohol Concentration (BAC). Often the decision to arrest is dependent upon the performance on the field sobriety tests (balance & coordination) and the driving pattern (weaving, speeding or an accident, etc.). An officer can arrest for simply being under the influence of alcohol or drugs with no reference to your blood alcohol level at all! The District Attorney would then file a charge, which is simply driving under the influence of alcohol. Again, this would likely be based on the police observations of your driving pattern and performance on the field sobriety tests.
 

Q. What is a DMV administrative hearing?

A. In most circumstances where DMV orders a discretionary action against a person's driving privilege, that person has the right to a hearing before the department to contest the action and review the evidence supporting it. You must request a hearing within a set period of time of receiving notice of the action against the driving privilege. The hearing is held before a Driver Safety Hearing Officer of the department. At the hearing, the driver is informed of the legal grounds for the action, and has the opportunity to review and challenge the evidence of the department, and to present evidence, witnesses and testimony to persuade the department to modify or rescind the action. A Lawyer is essential.

 

Q. What are my legal rights at a DMV administrative hearing?

A. You have the right to be represented by an attorney or other representative. We have helped our clients keep their driver license. You have the right to review the evidence and to cross examine the testimony of any witnesses for the department, and to present evidence and witnesses on your own behalf, as well as the right to testify on your own behalf. Following the hearing, you have the right to be provided a decision in writing. Should the decision resulting from the hearing be against you, you have the right to appeal the decision. The time periods and other specific information concerning your rights will be stated on the notice containing the hearing decision.

Q: Why am I being charged with DWI if I did not drink, I only smoked a little marijuana?

A: In New York State DWI includes drugs as well as alcohol. Suspicion of driving while impaired by drugs, including marijuana, may be proper grounds for a charge of DWI.

Q: How can they charge me with DWI if they pulled me over for speeding?

A: The speeding offense provided the probable cause (valid reason) for the stop. If the law enforcement officer suspects you of driving under the influence after you are stopped (based on admissions, smell of alcohol or drugs etc.) you can be arrested for DWI. There is no requirement that police suspect you of driving under the influence prior to the stop in order to arrest you for DWI.

Q: The police spelled my name wrong on the citation, will my charges be dismissed?

A: No, a harmless error of this type on a traffic citation will not result in a dismissal of the charges.

Q: If the officer does not show up at my initial court date will my DUI be dismissed?

A: No, a DUI is a misdemeanor not a traffic infraction. The initial court date is an arraignment and the police officer will not be present. In fact the police officer may never be present during the court proceedings until the date of trial if any.

Q: Shouldn't I just plead guilty if my test results were over .08% BAC?

A: No, there could have been an error during the testing process that can only be uncovered during the discovery process. If you simply plead guilty based on the original test results you may be giving up your opportunity for a dismissal or reduction of the charges against you. Alcohol testing is not always accurate. Procedural errors, faulty machinery, improper testing methods are always a possibility in a DWI case. Your attorney should explore all of your options and opportunities.