Do Not Pass Go, Do Not Collect $200!, Go Directly to Jail!

My family loves to play Monopoly. On those frigid Ithaca days we used it to teach our four kids about capitalism. We have many versions of the game (Simpsons, Dot.com, etc.) including the latest with electronic credit cards, and a digital bank. In the game, you can make money, you can spend money, you can lose money, you can invest in properties and/or utilities, and you can wind up in jail. Monopoly sounds alot like real life.You can wind up in Monopoly jail a few different ways: a bad chance card, a bad community chest card, rolling doubles three times (Monopoly's version of speeding), or landing on the Go Directly To Jail space. Sometimes if the board has alot of development (houses and hotels) taking a jail break isn't so bad.

In real life, jail (the County), and prison (the state) is not fun or funny. It is not a space on a game board. Jail smells, I've been there (visiting of course), although on balance there are no wives or kids, and they do have tater tots. Unfortunately, you can't use a get out of Jail free card when you've had enough either.

DWI clients often ask me, "am I gonna go to jail for this?" ... my general answer is not usually on first time DWIs. My new answer is, "it depends"... it depends upon the Judge, it depends upon whether there was an accident, it depends upon your prior record, it depends on whether it's your first offense, it depends if you are under 21 years of age, it depends upon what county, or what city, or what village the arrest occurred in, it depends upon whether you taking a plea, or whether you are going to trial to contest the stop, the arrest, and the charges.

In some Courts first time offenders will almost never see jail, even if they contest the charges, and lose at trial. Other Courts are giving a weekend in jail for first time offenders under the age of 21 who plead guilty to the reduced offense of DWAI (the traffic violation). Some Courts if you lose at trial you may go to jail for up to a year.

Now mind you the Courts have to order a PSI (pre-sentence investigation) in two situations: One is if incarceration is a possibility, and another is if a term of probation supervision is a possibility. The PSI is where probation (usually the probation department in the county you reside) investigates your life, and makes a recommendation in your case. Judges do not have to follow the recommendation of probation. Judges do not have to follow the recommendation of the District Attorney either. Judges have their own viewpoints and beliefs about the purpose of jail. Some have the attitude of the old TV show Baretta, "don't do the crime if you can't do the time."

Many factors need to be considered in New York DWI cases. Nothing is ever cut and dried. Every case is unique, and the facts are never quite the same. Whether jail is a possibility or a probability needs discussion. There are no absolute guarantees in DWI cases, although many attorneys can predict likely outcomes.

Beyond jail attorneys need to consider that people might have different goals. Some clients, who may live hundreds of miles from the Courthouse may want the fastest and easiest closure to their case. Clients from other states and countries may not care about New York State license privileges. Clients who are retired may not care about having a criminal conviction while younger people may be willing to do anything (take greater risks) to avoid a criminal conviction. Some clients have drug and/or alcohol problems which need to be addressed and others do not. So cases needs to be weighed and evaluated based upon potential outcomes. Be wary of simple answers to complex issues.

Often the best counsel I can give is a detailed cases analysis, a laying out of options, after really hearing what my clients have to say. Often that means listening very carefully. My wife sometimes tells me (more like yells at me) .... "you're not hearing me"... "you may be listening but hearing and listening are two different things." They are very different things.

I understand that people come in different shapes, sizes, and mental frames of mind. There is not a one size fits all approach that works well for everyone. I encourage all people seeking DWI representation to contact multiple lawyers. Make sure you are comfortable with the person you hire to represent "your" interests.