New York Criminal Lawyer Blog
A man was stopped at the street for failing to wear a seat belt and operating a vehicle with a cracked front windshield. Upon approaching the vehicle, the police officer noticed that the driver have a glassy eyes. The driver responded to the questions of the police officer with a slurred speech and an odor of alcohol emanated from him. After the man failed the standard field sobriety tests, the police arrested the driver for DWI.
A New York Criminal Lawyer said charges against the driver took place and the bail was set and posted. Subsequently, the man came forward and claimed that he did not drive the vehicle which was stopped by the police officer. The man also claimed that his brother used his license and identity. The man submits an affidavit which indicates that he learned of his brother’s arrest when tickets turned up in the man’s mailbox a couple of days after the arrest. The brother of the man called him a couple of days later according to the affidavit submitted. The brother of the man also advised him that he used the license and was arrested for DWI. While no evidence of identity is offered in support of the motion to dismiss the man, the jury concedes that the man did not operate the vehicle and that his brother did. The acknowledgment by the prosecution of the identity of the driver followed initial findings of the present motion. The initial findings ordered a trial to determine that the man did not operate the vehicle in question and was not arrested due to ambiguities in the submitted papers. The prosecution accepted the point rather than proceed to trial. The decision on the merits of the legal action is rendered.
The overlap of the naming of the man as the accused while charging the person of the man’s brother with violating Vehicle and Traffic Law makes the man an wronged person whose privileges to legally operate a motor vehicle have been suspended. The man therefore has the right to challenge the prosecution with his name, his driver’s license and his identity. A New York Criminal Lawyer said that without the right to come forward and reveal the false use of an identity, the man is plagued with the misdemeanor and with potential effects of a conviction. Prosecuting the brother of the man essentially leaves the brother to invest only his time while the man receives the penalties accruing by fines, suspension and revocation of his license.
The acquired interest of the man in his license gives rise to the standing necessary to raise the issue and seek dismissal of the case brought against his identity. A prosecutor has the ethical obligation not to maintain a criminal action when the prosecutor knows or it is obvious that the charge is not supported by credible reason, whether the charge involves sex crimes, theft or a DWI. At the same time, the prosecutor admits the accused is the brother, and the proceeding should name him and not the man, the prosecutor resists dismissing the action against the name of the man. The prosecution does not suggest in the case that the man is complicit in switching identities with his brother. However, the District Attorney simply wants to revise the sworn statement of the arresting officer.
Based on the record, the criminal procedure law gives the right to specifically revise a prosecutor’s information. Revising information is permitted when the count sought to be added charges an offense supported by the sworn factual accusation. However, courts have permitted revision of information’s by applying the condition which prohibits dismissal of information’s as facially insufficient where the defect or irregularity is of a type that may be cured by revision. Revisions to information’s are generally permitted to correct errors as to time, place and names of persons. Revision of names is permitted in situations where a name is misspelled or a witness has been incorrectly identified in a supporting statement. Revision of an accusation has been permitted when the opponent has been charge under a fictitious name rather than the correct name because the grand jury meant to charge the latter named individual.
The action against the man is dismissed based upon a legal impediment and the admission by the district attorney that the man did not operate the motor vehicle. The district attorney is denied the right to revise the name of the accused however they are free to file a proper accusatory instrument naming the brother of the man as the accused
It is very difficult for a family member to see someone they love in jail however it is also hard to accept that a family member is going to suffer the charges that he never did. If someone has been charged with drug possession, a theft charge or DWI, our attorneys are capable in giving you with legal guidance.