DWAI in New York
Lucero, PC • November 14, 2024
Varying levels of driving while impaired or intoxicated exist in the State of New York. On the lower rung of such violations, is what is referred to as "Driving While Ability Impaired". A person will have committed this offense when operating a motor vehicle with a blood alcohol content greater than .05%, but less than .07%. Even assuming, however, the driver's blood alcohol content is less than .05% percent, the driver may not be in the clear as other evidence can be used to show the driver was impaired. Other evidence includes, but is not limited to, poor performance on field sobriety tests or poor driving (swerving, stop and go, etc.).
While only an infraction, Driving While Ability Impaired convictions carry stiff penalties. Fines range from $300 to $500, a mandatory license suspension of 90 days is imposed, and the maximum jail time is 15 days.
If you have been cited or booked for DWAI - Alcohol and need our help, contact our New York office at 213-668-7569 today.
In California, defendants charged with misdemeanors may file a motion for what is colloquially referred to as "judicial diversion". Beginning in 2021, judicial diversion permitted bench officers to divert misdemeanor cases. In so doing, the judge will require the defendant to complete several tasks over a specified period of time. Upon completion of the terms, the judge is required to dismiss the case; the dismissal will happen even if the District Attorney or other prosecuting agency disagrees or objects. Judicial diversion provides great benefits to defendants as they do not have to plead guilty or no contest to any crime. Certain misdemeanors are precluded from judicial diversion, including: 1. domestic violence charges; 2. any charge requiring the defendant to register pursuant to Penal Code section 290; and 3. driving under the influence. Judges are not required to grant a defendant's motion for judicial diversion. In the event such a motion is granted, however, the maximum term length is two years from the date of admission. If you are facing misdemeanor charges, contact our office today to discuss a possible grant of judicial diversion.
In civil matters, Requests for Admissions are a form of written discovery that require the responding party to admit or deny certain facts that are pertinent to the lawsuit. The party propounding the Requests for Admissions may serve them by way of e-mail (assuming the parties agree to this form of service) or U.S. Mail. If the responding party has an attorney, the subject discovery must be served on the party's attorney. Within thirty (30) days of service of the Requests for Admissions, the responding party must serve written responses under oath. If the responding party fails to respond within the thirty-day timeline, the Court may deem the matters contained in the Requests for Admissions admitted. This has severe impacts on the party as it may preclude the party from offering certain defenses or evidence favorable to them, or cause them to lose the lawsuit, altogether. As the issues involved and information sought in Requests for Admissions are particularly sensitive, you must have an attorney assist with this form of discovery. 
After being placed on probation, a defendant may file a motion with the court to have his or her probation terminated pursuant to Penal Code section 1203.3. The reviewing magistrate is permitted to grant the motion "when the ends of justice will be subserved thereby, and when the good conduct and reform" of the probationer warrants it. If the motion to terminate probation early is granted, the probationer is discharged from probation, ending his or her probation sentence early. When negotiating a matter with the prosecutor, it is important that the defense attorney keep this is mind. Many times, when fashioning a plea agreement, the parties can agree that the prosecutor will not oppose a defendant's motion for early termination of probation; the non-opposition is usually conditioned upon completion of all of the terms of probation and payment of fines. The early termination of probation may then warrant the matter's expungement and dismissal per Penal Code section 1203.4. With so much riding on the outcome, it is necessary that early termination of probation be considered when litigating a criminal case. Contact our office to discuss terminating your probation early.
When charged with domestic violence, a judge will typically address the issue of whether a criminal protective order should be issued at the time of arraignment. A criminal protective order may be issued in two forms: 1. No contact; or 2. No negative contact. A "No contact" criminal protective order prohibits the defendant from contacting the person identified in the order, whatsoever. A "No negative contact" criminal protective order will permit the defendant to have contact with the person identified in the order, but prohibits negative contact such as harassing, annoying, stalking, threatening, and striking that person. Because there is usually a pre-existing relationship as between the parties identified in the criminal protective order (for example, husband and wife), the issuance of a "No contact" criminal protective order will have drastic consequences, including, but not limited to, forcing the defendant to move out of the home. After the issue is litigated by the parties' attorneys, the judge uses his or her discretion as to what type of criminal protective order to issue. With the stakes being so high, it is necessary to have a trained attorney at arraignment to guide a defendant through these issues. Contact our office at  213-668-7569  to strategize for arraignment and issuance of a criminal protective order.
The Fourth Amendment of the United States Constitution protects people against unreasonable search and seizure. A search or seizure is presumed unreasonable unless it is done pursuant to a warrant authorized by a magistrate. However, in California, law enforcement officers may seize a person's cellphone if they have probable cause to believe that it contains evidence of crime. At that point, because they are merely seizing, as opposed to searching, such seizure will oftentimes be deemed Constitutional. However, should the police wish to search the phone, ie., open it up and peruse its contents, such search will require a search warrant. Courts have indicated that because the seizure is less intrusive than a search, the seizure of the cellphone is acceptable assuming the officer does indeed have probable cause to believe it contains evidence of crime. Thus, even if the officer waits for a period of time to obtain a search warrant, the seizure will not later affect the officer's ability to search. The longer the officer waits to obtain the warrant to search, the greater the likelihood the seizure and subsequent search are tainted. If your cellphone has been seized by the police, contact our office today to discuss your plan of attack.
Oftentimes we are asked whether a privately-retained lawyer is necessary in a DUI case. Predictably, our answer is "It depends." For one, budgetary restrictions may make it difficult for a person accused of DUI to retain a private lawyer. With respect to the criminal case that arises out of a DUI arrest, the defendant is entitled to the appointment of a lawyer on their behalf if they cannot afford one. The appointed lawyer will represent the defendant throughout the case from arraignment through trial. The problem for many people in that scenario, however, is that a DUI case is broken down into two portions: the administrative portion and the criminal portion. The Court-appointed attorney will not assist the DUI recipient with the administrative portion of the case and will be limited to the criminal case. For many, having a lawyer represent the accused for the administrative hearing with the DMV is the greatest advantage to retaining private counsel. Because these matters are complex, you need someone who speaks the language necessary to defend you. Losing the APS hearing with the DMV comes with serious consequences including suspension of the person's drivers license. If you are unsure whether you need a private attorney for your DUI case, contact our office at  213-668-7569  to discuss whether our office is right for your situation.
When a person is arrested, the arresting officer must identify the law violation justifying the arrest. Once the officer has identified the law violation, bail is usually set according to the county's Bail Schedule. The Bail Schedule lists the provisions of the Penal Code and identifies a set bail for the offense. By cross-referencing the bail schedule, one can estimate what the arrestee's bail will be. If the arrestee cannot make bail according to the bail schedule, in California, bail is subject to judicial review at or near the time in which the arrestee is arraigned for the offenses. Thus, even if the bail schedule provides some guidance, the judge reviewing bail is not beholden to that amount; he or she can set whatever bail they feel appropriate. When faced with a bail decision, the judge will consider several factors, such as: -the defendant's prior criminal history; -the seriousness of the charges alleged; and -whether the defendant has any prior failures to appear for prior court cases. Arguments must be made by a skilled a skilled defense attorney highlighting the good facts for the defendant notwithstanding the criminal charges. If you or someone you know is in custody, contact our office at  213-668-7569  to schedule a bail hearing.
California Penal Code section 245(a)(2), commonly known as "Assault with a Firearm", is a felony that is punishable by two, three, or four years in state prison. The statute defines a firearm as a: -pistol; -rifle; -shotgun; -semiautomatic firearm; -machine gun; -.50 B
Welfare and Institutions Code section 707 provides that if a minor is 16 years or older during the commission of an offense listed in subsection (b) of section 707, the district attorney or other prosecutor may make a motion to have the juvenile transferred to an adult court for criminal prosecution. The offenses listed in subsection (b) of section 707 are of the most serious crimes in the Penal Code. Thus, should the prosecutor succeed in having the minor transferred to adult court, the consequences are not to be taken lightly. Upon the motion of the prosecutor to transfer the minor out of the juvenile delinquency court and into the criminal court, the probation department of the County is to prepare a report detailing the following: 1. The degree of criminal sophistication exhibited by the minor; 2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction; 3. The minor's previous delinquent history; 4. Success of previous attempts by the juvenile court to rehabilitate the minor; and 5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor. Irrespective of whether the probation department's report is favorable or unfavorable to the minor, it is absolutely imperative that a trained juvenile defense attorney examine the case to prepare a defense and opposition to the motion for transfer. If you have a child facing a transfer hearing and motion, contact our office at  213-668-7569  to discuss your child's future.
Beginning January 1, 2025, veterans charged with felonies will be eligible for what is known as military diversion. Previously, a servicemember would only qualify for such relief if charged with misdemeanors. The servicemember must suffer from mental health issues, post-traumatic stress disorder, sexual trauma, or substance abuse. The servicemember's condition must have also been a "significant factor" in the commission of the charged felony. However, there is a presumption that the condition that a nexus exists between the commission of the felony and the servicemember's condition. Unless the prosecutor can show by clear and convincing evidence that there is no connection, the judge must presume the nexus exists. Certain serious felonies are excluded from military diversion, including, but not limited to: murder; any offense requiring sex offender registration per PC 290; rape; and offenses involving the use of a weapon of mass destruction. This new expansion of military diversion will grant veterans and members of the military to have their cases dismissed and sealed at the conclusion of their term of diversion. If you are a current or former member of the military, it is imperative you contact our office at  213-668-7569  to see if you qualify.