New York Criminal Lawyer Blog
Two police officers saw a car moving erratically. When they stopped the car, the lady driver refused to exit her car. A New York DWI Lawyer said the police officers heard the woman’s slurred speech and smelled alcohol on her breath and concluded that she was very intoxicated.
The police officers also saw that aside from the lady driver, there was an adult passenger with her and an 11-month old child in a car seat. The police officer called Social Services to take custody of the 11-month old child.
A New York DWI Lawyer they then arrested the lady driver and brought her to the station. They asked her if she wanted to take the breathalyzer test but she refused. The arresting officers told her the consequences of not taking the breathalyzer test: that her refusal will be entered into the record and will be used as evidence against her. But she still refused.
The employee of Social Services observed the lady driver all the time that she was at the police station and came to the conclusion that the lady driver was intoxicated. The lady driver was charged with driving while intoxicated.
At trial, the City Court Judge did not instruct the jury that if they cannot find evidence to convict the lady driver of driving while intoxicated, then they can find her guilty of the lesser offense of driving with ability impaired. A Nassau County DWI Lawyer the lady driver was convicted by the jury of driving while intoxicated. The trial judge ruled that there is no reasonable view of the evidence that warrants a finding that the lady driver should be convicted of driving with ability impaired instead of driving while intoxicated.
On appeal, the County Judge saw that the charge of driving with ability impaired was a lesser included offense of driving while intoxicated. He also opined that the record should be viewed in the light most favorable to the accused lady driver and she should have instead been found guilty of the lesser included offense if there is evidence to warrant such a finding. But he affirmed the trial judge’s action and found that he acted within his discretion.
The only question before the Supreme Court is whether or not the trial judge and the county judge abused their discretion when they both found that there is no view of the record that can support a finding that the lady driver was guilty only of driving with ability impaired instead of finding that she was guilty of driving while intoxicated.
The Court found that the trial judge substituted this view of the law for that of the jury and thus gravely abused his discretion. The Court opined that the trial judge’s ruling was based on an old law that a conviction for driving with ability impaired requires evidence of a breathalyzer or blood test. The rule now is that driving with ability impaired is a lesser included offense in driving while intoxicated because it is impossible to commit the crime of driving while intoxicated and not drive with one’s ability impaired.
The lawyer for the lady driver requested the trial judge to submit to the jury the instruction that they should find the lady driver guilty of the lesser included offense since this is more favorable to the accused. With the lawyer’s request, the submission became mandatory. The trial judge had no discretion in the matter anymore: it was not up to him to decide if he should submit the request to the jury. He had to submit it to the jury. Since he did not, he gravely abused his discretion and he substituted his discretion for the jury. For this reason, the lady driver is entitled to a new trial.
At Stephen Bilkis and Associates, their New York City DWI lawyers will tell you that if you are arrested for driving while intoxicated, you must take a breathalyzer test or your refusal will be entered into the record and it will be used as evidence against you. New York DWI lawyers will also tell you that a charge for driving while intoxicated will also include a lesser included offense of driving with ability impaired. Call Stephen Bilkis and Associates today at any of their offices in the New York area. Ask to speak to any of their New York DWI lawyers and ask their opinion on the legal consequences of pleading guilty to the lesser included offense of driving with ability impaired. Ask the opinion of any of their NYC DWI lawyers on how you can ask the jury to convict you, if the evidence so warrants, of a lesser included offense. Ask them if this will be more favorable to you. The New York City DWI attorneys are willing and available to assist you.