Every case is different and there are no guarantees. Below are rough answers to some questions we hear frequently.
Q: Will we be able to get a plea bargain?
A: Usually a good lawyer can get a first-DUI charge reduced to a DWAI violation. In some counties, it is more difficult to reduce a DWI if your blood-alcohol concentration (BAC) is particularly high. The individual prosecutor may have a set number in mind. For some that method over 0.15. For others it might be 0.18 or 0.20. Others will agree to a plea bargain in spite of of the BAC. Other factors also might prevent a plea bargain, such as if the charge arose out of a serious accident, if you have a criminal record, or if it is not the first DWI on your record. In such situations, a good lawyer may be able to get a reduction later if they can find any weakness in the prosecution’s case. It may be possible to get a reduction already with a high BAC if you get a substance abuse evaluation and comply with the treatment recommendations from the evaluation.
[Update: Effective in 2007, a BAC of 0.18 generally results in an Aggravated DWI charge. In such cases it is generally difficult to get the charge reduced to DWAI, though an attorney can generally get this reduced to regular DWI – not much of a bargain however.]
Q: Do I need a lawyer?
A: No. If you want to plead guilty to the charge, or if you want to try to negotiate for yourself, you do not need a lawyer. In many courts, a good lawyer will get you a better deal than you will get for yourself. Also, a good lawyer may be able to identify weaknesses in the prosecution case against you. A very experienced DWI lawyer knows the ins and outs of these issues better than non-lawyers, and better than most regular lawyers.
Q: Do I have to come to court?
A: Usually. Some out-of-state or out-of-area clients might not have to come to Court if a lawyer appears for you. Other than that, NY DUI defendants have to come to Court. You will have to surrender your license, and the estimate will want to make sure you understand what you have to do. We have represented clients from other states and distant parts of New York State (such as New York City) without our clients appearing. Many judges are uncomfortable with it, but so far no one has refused to allow it. We’ve already done it with a local client, where he was out of state visiting his mother in the hospital. But generally, for local clients, you will have to appear.
Q: Will my insurance rates go up?
A: Probably for New York drivers, and maybe for out-of-state drivers. A DUI conviction is reported on your New York driving record. If your insurance company finds out, your rates will almost certainly go up. In some situations your insurance company will drop you as a customer and you may have to go into the stated risk pool, where rates are dramatically higher. It is possible that your insurance company will not find out, and then your rates shouldn’t go up. If you are from out-of-state, a New York DUI conviction may not affect your license or insurance, except in Quebec and Ontario. In our experience, reporting of DUI matters to other states is inconsistent. They are supposed to be reported by the Drivers License Compact, but many of our clients have not been affected. however, some of them have been affected.
Q: Can we beat the charge?
A: Maybe. Most DUI charges are difficult to beat and it will cost a lot more to fight than to make a deal. The police usually do a good job and the hard truth is, most defendants are guilty. nevertheless, the police sometimes slip up. They may not have had a good reason to stop your car. They may not have had enough evidence to require a BAC test. They may have done the tests wrong. You may have credible witnesses who can say you were not intoxicated. A good lawyer can review these issues with you and give you better answers.
It makes more sense to fight a DUI if you have a prior DUI conviction (including DWAI) in the last 5 years, as you will likely be ineligible for a conditional license.
[Update: Based on some recent changes in DUI laws in New York and other factors, we generally feel that most cases should be fought at least through a motion and hearing. I discuss this in two more recent articles, one on DWAI and another on DWI and Aggravated DWI.]
Recent examples of DUI situations we are fighting include where our client was stopped by police for running a stop sign in a parking lot (generally not illegal), and another where our client was sleeping at home when the police came to get him (the BAC test is probably invalid).
Q: What do lawyers charge?
A: Fees vary widely for DWI situations. There are some lawyers who charge as little as $350. I know of one lawyer who starts in the $5000 neighborhood. Most good DWI lawyers charge a minimum of $1000, because of the amount of time involved in reviewing the case and making sure you get the right consequence, and because of the risk of having to go back multiple times.
[Update: I found out that the expensive lawyer I referenced above actually starts at $7500. He is rather good.]
Q: What’s the difference between DUI, DWI, and DWAI?
A: DWI stands for Driving While Intoxicated, which is either a specific numerical BAC consequence of 0.08 or higher (V&T Law Section 1192(2)), or a general concept that you’re intoxicated, proven by testimony and other evidence of the character of your impairment (1192(3)). DWAI stands for Driving While Ability Impaired (1192(1)), and is generally considered to be when the BAC consequence is higher than 0.05.
DUI stands for Driving Under the Influence, and is a general term in the US for the subject. The term DUI is not commonly used in the legal system in New York State.
Under V&T Law 1193, first and second convictions for DWAI are violations – they are not crimes and you cannot get a criminal record for a violation. A third DWAI is a misdemeanor. A first DWI is a misdemeanor. Later DWI charges can be felonies.