Aggravated DWI

http://timesunion.com/AspStories/story.asp?storyID=726002&TextPage=1

The Albany Times Union reported today that a 25 year-old woman from Cohoes was sentenced to 2-6 years in prison under New York's Aggravated DWI statute. There has to be more to the story because the statute, NY V&T Law 1193(2)(b)(2) says a conviction for Aggravated DWI is a misdemeanor punishable by only up to 1 year in jail. (Any misdemeanor by definition is only punishable by up to one year in jail). Given the fact that the woman was allegedly intoxicated, and apparently seriously injured two pedestrians, she was probably charged with vehicular assault, which is a felony.

The new crime of Aggravated DWI was created by the Legislature and enacted in 2006. If you produce a chemical test that is .18% or above, you can be charged with Aggravated DWI. The TU story says the woman refused "alcohol" tests. The story does not mention a BAC level which leads me to believe she refused to perform the chemical test. So I don't understand how she could have been prosecuted for Aggravated DWI without a valid chemical test in excess of .18%.

I had a client charged with Aggravated DWI recently. She blew a .18%, but the BAC Datamaster was having some problems the night she was arrested. The machine basically malfunctioned twice before my client blew a "valid sample." So we decided to fight her case. The fact that there was more than a reasonable doubt that the breath testing device was not working right made it difficult to prosecute my client under the Aggravated DWI Statute. How can you prosecute a crime that relies on an accurate BAC test when there is obviously problems with the machine? A jury could have easily been persuaded. There were also other problems with the case but I'll blog about those later.

Had I believed my client could have faced 2-6 years in prison were she convicted of Aggravated DWI, I would have negotiated a plea bargain. (especially because this girl had two fairly recent DWAIs on her record). Her case was eventually entirely dismissed by the court.