DWI - Common Questions
Am I required by law to have an attorney for a DWI case?
No. You are not required by law to have an attorney, but you will probably find that the judge is pressuring you to get one. Almost every judge in Monroe, Livingston, Ontario, and Genesee Counties will tell a defendant appearing before them on a DWI case that they need to; (1) find an attorney; and (2) return on their next court date with that attorney. There is at least one judge in Rochester City Court who will give a defendant in a DWI case one week to find an attorney; if the defendant returns to court without an attorney a week later, the judge will give them one more week; if the defendant returns again without an attorney, the judge will make them come to court every single morning until they come with a lawyer.
Judges insist on making you find an attorney because if you are convicted of DWI, you can spend up to a year in jail. The judges know that there is no way a lay person can successfully defend themselves in a DWI case, and they see it as their job to protect your rights. The only way to do that realistically is for you to have a lawyer.
You can insist on acting as your lawyer. To quote Gomez Adamms before he was sent to jail, “They say that a man who represents himself has a fool as a client. With God as my witness, I am that fool!” Don’t be that fool.
Do I have the right to a DWI trial by jury?
You have the right to a trial by jury on misdemeanor and felony charges, and that holds true for DWI cases. DWAI (Driving While Ability Impaired) is a violation – not a misdemeanor or felony – so you don’t have the right to a jury trial in a DWAI case. The judge in a DWAI case will act as a factfinder in the place of a jury. If you are under the age of 19 at the time of your alleged DWI, and if you have no prior felony convictions or Youthful Offender adjudications, then you are “Mandatory YO,” and although that status has a number of advantages (no criminal record, lesser sentences), it does eliminate your right to a trial by jury.
Can I get my DWI conviction expunged?
No. In some states there are laws that allow criminal convictions to be erased (expunged) from a person’s record after a period of time. There is no such law in New York. In fact, the DMV will look at a person’s criminal record going back 25 years when deciding whether they are fit for licensing. The only way to get a criminal conviction erased from a New York record is to apply for Executive Clemency and get a pardon from the Governor. That is a political (not legal) process for which you should find a lawyer who is also a registered lobbyist.
What is the statute of limitations on a DWI?
The District Attorney must commence a felony DWI prosecution within 5 years of the alleged date that the DWI was committed. Misdemeanor DWI prosecutions must be commenced within three years of the alleged date that the DWI was committed. DWAI charges must be brought within one year that the DWAI was allegedly committed. These periods of time can be tolled (stopped) for up to five years if the defendant is continuously outside the state or missing.
I was charged with DWI, but released on my own recognizance (ROR’d). Does the statute of limitations time keep running?
The statute of limitations time is tolled (stopped) once you are brought into court and arraigned on your charges. Once that happens, there are specific time periods after which the prosecution must announce readiness for trial.
My DWI case has been going on for a year. Is there a time limit on how long a DWI case can get dragged out?
Yes. Prosecutors must announce their readiness for trial on a DWAI violation within 30 days of commencing the action. They must announce readiness within 90 days of commencing a misdemeanor DWI prosecution and within 6 months of commencing a felony DWI case. If prosecution has announced readiness for trial, a Defendant can demand a trial date from the court. If the prosecution has not announced readiness for trial, the Defendant can bring a “Speedy Trial” motion under CPL 30.30 to dismiss their case. Counting these days is considerably more complicated than you might think, and you should consult with an experienced DWI attorney to see if your case can be dismissed.
I have been drinking and I need to go to court today. What will happen?
Coming to court drunk is a bad, bad, bad idea. The most likely outcome is that you will be taken into custody. Why?
Option 1: The deputies report your intoxicated condition to the judge, who immediately revokes your ROR status and sets bail, which results in the same deputy taking you into custody.
Option 2: The deputy at the courthouse sees you are drunk, then looks at the digital video of the parking lot, which includes you driving in and walking from your car to the courthouse door. That deputy then asks you a few questions to establish the probable cause required for your arrest, and then administers a BAC DataMaster test, and then arrests you for DWI. You are then taken before the judge for an arraignment on the new charge, and the judge sets bail on your new charge.
If you have a question about the legal issues in a DWI case, call or email the attorneys at Jeannie D. Michalski today. We will meet you at our office in Avon, New York for a free consultation, and start developing a strategy for winning your case.
You can reach us at either office by calling one number: (585) 351-2500. Call us today.
For even more information on DWI charges, please visit the Rochester DWI & Criminal Law Blog.