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Todd Wylie Carpenter

Todd Carpenter’s Answers

95 total


  • If the dui criminal charges are dismissed doesn't It make the alleged refusal of the breathalyzer in nys dmv court invalid?

    If a person is charged with an dui 1192.1 and an 1192.3, if these charges get dismissed what happens to the alleged refusal of the breathalyzer in nys dmv safety hearing court? If the dui criminal charges are dismissed doesnt make the alleged refu...

    Todd’s Answer

    Unfortunately, no. The civil/administrative hearing runs parallel to but separate from the criminal prosecution. So even if you beat the criminal charges, you may still have to suffer the minimum 1 year revocation of your drivers license/privilege if you lose the refusal. And to make matters worse under that scenario, you wouldn't even be eligible for conditional driving privileges during that entire year. Many defendants in refusal cases that result in a finding of refusal are virtually then forced to plead guilty to some sort of alcohol related driving offense to ensure they can continue to drive. However, if you defeat the criminal charges based on an unlawful stop/arrest, you may then able to also beat the refusal. As refusal hearings have a much lower burden of proof, however, they do not very often come out in favor of the driver.

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  • How many days do I sevre if give a11 months sentence in Ny state.

    How many days do I sevre if give a11 months sentence in Ny state.

    Todd’s Answer

    You will typically serve two-thirds of any sentence resulting in period of incarceration of one year or less (county time). There is no hard and fast rule, however, as the calculation of your out-date will be based upon any time in jail you may have accrued pending disposition of your case, if you have any other matters pending that may have resulted in your serving dead time, as well as any merit and/or good time to which you may be entitled. Actual calculations are done by the county jail which maintains custody and/or control over you during your period of incarceration (which may or may not be the actual facility in which you are housed, if out of county). As your attorney is in a position to know all of this information, he or she should be able to give you a more definitive answer.

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  • Will I get charged with a DUI for blowing over the legal limit in a portable breath test?

    I was pulled over after having a couple drinks. The officer did an eye test which I failed. He then had me get out of the car and walk back and forth and count paces, and then hold one leg up. As far as I know I did fine with those. He then had m...

    Todd’s Answer

    The odds of you being charged at this point are incredibly remote. You cannot be convicted of a DWI based on the results of the roadside PBT, and if no chemical test was administered that night it is now impossible for you to be charged with 1192.2. In theory you could still be charged with 1192.3, but the fact that the officer let you drive away is 100% contradictory to that charge and no prosecutor with a shred of common sense would elect to prosecute an offense under those circumstances.

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  • Can aggravated DWI ever be reduced to DWAI in NY State?

    Circumstances: officer followed me for speeding, then pulled me over when I briefly inched over the double yellow, approx 3:05 AM. I was no longer in a low speed zone when he pulled me over. I am on Adderall, and did not believe myself to be intox...

    Todd’s Answer

    Aggravated DWI can most certainly be reduced to DWAI, but it depends on the circumstances of each case. In terms of the DWI prosecution, what matters most is the BAC number printed (or written) on the certified results of the chemical test. If yours says .12, then you are not even charged with aggravated DWI (unless you had a child under 16 in the car), and if this is your first offense, the odds of resolving your case with a DWAI plea are very good.

    I don't know any officer who would (or even knows how to) manipulate the results of a chemical test, let alone in such a significant way - from a .20 to a .12. Perhaps your pre-screen alcosensor test on the side of the road was .2, but that is generally inadmissible anyway. Regardless, you should definitely consult with an experienced DWI defense attorney as soon as possible. Perhaps you may even be able to resolve your case without any alcohol related conviction at all, which is always preferable. That depends on the specific facts of your case, however, and is something an experienced DWI defense attorney would be able to discuss with you.

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  • New York DMV DUI refusal hearing not rescheduled

    I was arrested in August 2014 for DUI in Poughkeepsie, New York. A refusal hearing was held, but the cop did not show up, and my license was reinstated; I have paid no fines to the state, either court or DMV. It is now November 2015 and the DMV st...

    Todd’s Answer

    The DMV rescheduled hearings based upon their own schedule and and the availability of the individual ALJs. I agree with you in that it can be advantageous to conduct the refusal hearing prior to the criminal resolution or trial if the officer provides beneficial testimony at the refusal hearing. Unfortunately there is no way (at least that I know of) to expedite or force the second refusal hearing. Your attorney may have contact information available to him or her to reach out to the DMV to check the status of your refusal.

    Keep in mind that refusal hearings can be incredibly difficult to win, and losing that hearing will result in at least a 1 year revocation of your license/privileges, subject only to the ultimate resolution of your criminal case and your eligibility for a conditonal license (if convicted). So unless you and your attorney are extremely confident about your chances at a refusal hearing (and even then victory is not certain), you may not want to be in such a rush. Even beating your criminal case can be a detriment if you lose your refusal.

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  • Is a DUI offense can dismiss and sealed?

    is a DUI offense can dismiss and sealed?

    Todd’s Answer

    I'm going to guess at what you were trying to ask...

    If you're DWI is dismissed for whatever reason, then your records should be sealed and fingerprints and mugshot returned to you (or destroyed).

    However, if you are ultimately convicted of any alcohol or drug related driving offense, then no, your conviction cannot be sealed. This included a conviction for the non-criminal violation of DWAI, which is specifically exempted from the CPL 160.55 sealing statute. New York does not allow for the expungement of criminal convictions, either.

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  • Breath test refusal warning

    While taking the test the officer didn't warn me I didn't have to take the test or what would happen if I did until I was already blowing. Her time stamp says she gave the warning at x:49 and the test started at x:36 and read at x:50

    Todd’s Answer

    Sounds like you're suggesting that perhaps you have an issue concerning the admissibility of your chemical test results based on when the officer read the warnings to you.

    Based on the information you provided, you do not. And barring some other basis for suppression, the test result is valid.

    DWI law in NY does not actually require that the refusal warnings be read to you at all, let alome before you blow. The requirement is only triggered by your initial refusal, at which point certain procedures come into play (including administering the refusal warnings) before you can be lawfully charged as a refusal. Chemical test results obtained by your consent do not require reading of the warnings, and are admissible even if obtained more than two hours after your arrest.

    Many officers will usually read you the refusal warnings immediately after reciting your Miranda rights, just to be safe. And many officers aren't even sure what the law is regarding refusal warnings and will read them a few times, or at odd times, out of confusion and to be overly cautious.

    Keep in mind, however, that inaccurate or misrepresented information provided by the officer in the bill of particulars/supporting deposition should be explored by your attorney at any pre-trial hearing and/or trial itself.

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  • What are my chances of get the case dropped ?

    2008 - dwai 2010 - aggravated dwi 2015 I was arrested for a third Dui. I was in the driver seat of the car and the car was running. I had no intention of driving. My friend who was going to drive me to his house was sitting in the passenge...

    Todd’s Answer

    Only you and your attorney are able to actually answer that question accurately. But based on the information you provided, the odds of getting your case dismissed (if that's what you mean by "dropped") is unlikely, in light of your history and the fact that you were sitting in the driver's seat of a motor vehicle with the engine running. Perhaps with sufficient evidence in support of your position, your attorney may be able to negotiate a plea to a reduced offense (DWAI, for example), but, in my opinion, that may be difficult, as well, with your DWI history.

    To "operate" a motor vehicle requires that you have the intention of putting that vehicle into motion. So if you're going to stick to your story, you need to make sure you have an experienced DWI trial attorney representing you.

    Keep in mind that, based upon the record you provided, even a conviction for DWAI with respect to this offense will result in a misdemeanor conviction (3 convictions for any section of VTL 1192 within 10 years), and you will most likely be subjected to an extended period of license revocation in addition to enhanced sanctions and penalties.

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  • Fighting 3rd dwi charge in 25 year period. I was charged with e felony dwi and dwai. I am a little confused about the charges!!

    Spoke to attorney he told me that if i beat the felony and take the dwai charge... dmv wouldn't look back at my 25 yr history . For the record i blew a0.07

    Todd’s Answer

    • Selected as best answer

    As with any DWI defense, the specific facts and circumstances of your arrest, in combination with your DWI/driving history and other factors unique to you (i.e., driving requirements, etc.) will dictate the best course of action for you. That is something that only you and your attorney will be able to determine.

    Having said that, if you are able to resolve your matter with a plea to the DWAI violation (1192.1), you may be able to avoid the extended revocation period since the DMV regulations generally apply only where a person's license is revoked, and a DWAI conviction typically results in only a license suspension. However, there are circumstances where a DWAI conviction can result in license revocation (based upon your DWI history), so if you do intend to accept to DWAI in hopes of avoiding the DMV regulations, ensure that is not the case for your first!

    If you are convicted of a third misdemeanor or felony DWI, in addition to whatever penal consequences imposed (fines, surcharges, probation and/or incarceration), the 25 year look-back period will be instituted and your license will most likely be revoked for a period of 5 years in addition to whatever period of revocation is imposed as a result of your conviction. You will then be required to install the Ignition Interlock Device in your vehicle for another 5 years after that while you drive pursuant to a "problem driver" restricted license.

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  • Need lawyer from rochester..payment..least expensive

    Im being asked to cop to a misdemeanor dwi...8 months..i fell it to much..i had s felony driving without s licence..and the want me to cop to the misdemeanor dwi..but 8 months is too much

    Todd’s Answer

    Meaning, a plea to misdemeanor DWI with an agreed upon sentence of 8 months in county jail?

    If that's the case, then it's entirely up to you whether to accept it or not. If you were originally charged with felony DWI then it may be a decent offer, considering the alternative may be a state prison sentence if convicted after a felony DWI trial.

    If you're not happy with that offer, discuss it with your attorney. Would you be more amenable to period of probation versus incarceration? If so, is your attorney aware of this? It could just be that you have a terrible case factually and 8 months is the best your attorney can get for you which, again, under the circumstances specific to your case may be a fantastic deal! You and your attorney are really the best positioned to answer these questions and discuss any realistic resolutions. Call your attorney as soon as you can if you have concerns.

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