What About Plea Bargaining in DWI Cases?

As all New York Criminal attorney’s know, very, very few criminal cases actually go to trial. The vast majority of cases are resolved with a plea bargain. This is especially true in the busiest Courts in New York such as Brooklyn, Manhattan and the Bronx where calendars of 100 cases or more per day are not uncommon. In fact, without plea bargaining, the criminal justice system would simply collapse.

The United States Supreme Court has recognized plea-bargaining as both essential and desirable. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Plea-bargaining results in several benefits: (1) the relief of court congestion; (2) alleviation of the risks and uncertainties of trial for both the government as well as the defendant:, and (3) its information gathering value that results from the government offering favorable pleas in return for cooperation, information and/or testimony. People v. Glendenning, 127 Misc.2d 880, 487 N.Y.S.2d 952 (N.Y.Sup. Westchester Cnty 1985).

In New York DWI cases, several factors come into play when plea bargaining takes place. In virtually all cases, the prosecutor is concerned with (1) the defendant’s prior criminal history, especially prior DWI or DWAI arrests (prosecutors typically consider arrests the same as convictions for plea purposes); (2) whether anyone was injured; and (3) whether there was any property damage. In DWI cases other considerations are whether there was an accident and whether the defendant refused to take a chemical test (i.e. a Breathalyzer). The DWI defendant also must be cognizant of the policy of the District Attorney’s Office in the particular county he or she is charged. For example, in Westchester, there will be no offer if the defendant refuses or “blows” .14 or above.

Finally, with rare exception, the law in New York requires that a defendant charged with Driving While Intoxicated plead guilty to Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI). Therefore, a plea bargain will usually result in an alcohol related conviction (DWI or DWAI). Of course, the main goal in plea bargaining DWI cases is to negotiate a plea bargain wherein the defendant pleads guilty to the violation of DWAI. If, however, the district attorney, after reviewing the available evidence, determines that a DWI or DWAI conviction is not warranted, the district attorney may consent, and the court may allow a plea of guilty to another charge in satisfaction of the DWI charge. In such a case, the court must set forth on the record the basis for such disposition.

As one can see, an attorney who handles DWI cases must be well versed in the general plea policies that affect every criminal case, the particular District Attorney’s office policies germane to DWI’s as well as the statutory plea restrictions applicable to DWI cases. Clearly, those charged with a DWI or DWAI need an attorney experienced with such cases.

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