A DWI Charge with Aggravating Factors
Interviewer: Are there any factors that would aggravate a DWI and result in more severe penalties? Let’s say having a high blood alcohol level or having underage children in the car?
Stuart: Those are both two factors that can aggravate your DWI charge. There is now a law called Leandra’s law, which adds aggravating factors to your DWI charge if you have passengers less than 15 years of age in your car. There was a new law that adds aggravated factors to your DWI, and comes into effect if you have a BAC of .17 or above in New York State.
There are other factors that can make the DWI charge harder to defend, such as if there was an accident. When you go in front of a judge or District Attorney for plea-bargaining with these factors, they will look at the case more seriously. They will look at a high BAC reading even though it does not fall under one of the categories of aggravated. They will also examine if you were driving without insurance on your car because that can also add aggravating factors.
Your Attorney Will Try to Mitigate Any Aggravating Conditions So They Are Not Factored Into Sentencing
Let’s say you were speeding 80 miles an hour in a 45 zone, plus you’re driving drunk. Those are things that the District Attorney will look at when they are examining the case and will come into play when they consider plea bargains. This is when your private attorney becomes vitally important. Your attorney must convince the judge and the prosecutor that these aggravating factors do not warrant a more severe punishment.
An Example of a DWI Case with Aggravating Factors
For example, I had one client where the police said she was driving 90 miles an hour on the highway when she was on a 55 mile an hour zone. She couldn’t take the breath test because she had a lung disease, she had COPD, and they were holding her to the charge because they said she refused to take the test and because she was driving so fast.
Our argument was that she didn’t refuse to take the test. We obtained the medical records showing validating her illness and once I presented the DA with proof that she did not refuse the Breathalyzer, the second obstacle to overcome was the speeding. The police officer claimed she was driving at 90 mph but she was driving fine, not in a dangerous manner. She was speeding, but she was not swerving, she was not bumping, she was not doing anything wrong. It almost makes no sense that she was driving drunk if she was driving 90 mph.
It makes much more sense that she was driving perfectly fine, had a lung disease, and couldn’t do physically undergo the Breathalyzer test. She was driving above the speed limit and there was a ticket issued but not for driving while intoxicated. This is because I was able to prove that people who are intoxicated usually have much more difficulty driving at high speeds.
By Austin Law Associates, P.C.