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I was convicted of a second DWAI as a result of a plea deal, did I make the right choice in accepting the bargain?

Buffalo, NY |

I am" happy" with the result, and know I can't change it at this point, I just want attorney's opinions on if I made the best choice.
My first DWI arrest resulted in a .12 bac, and was reduced to a dwai by plea bargain on arraignment. My second DWI arrest was treated as a first offense, since the first was plead down, and my BAC was .14.

The second arrest happened in less than a year from the first arrest. Proceedings took place in Tonawanda's Town Court. Now, the arrest happened because the arresting officer heard me get a flat tire, and heard the sound of the tire as i was driving. I pulled into a parking lot, and tried to go toward the store to ask to use the phone to get AAA. Long story short, refused RSBT, only passed one leg stand.

the reason why i plea bargain was given was because the legality of the stop was questioned. The asst da was not sure if it was legal for the cop to pull me over if i safely pulled into a parking lot after driving a short distance on a flat. There were several court dates for this, mostly backroom negotiating, but never went through with a suppression hearing, or trial (just because court was continuously adjourned due to negotiation. Would I have been better off going to trial, or did I make the right choice taking the plea?

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Attorney answers 5

Best Answer

Had you been successful at a suppression hearing, you may have obtained a better results, but keep in mind that 1) suppression is extremely rare, and 2) your attorney was likely in the best position to anticipate which way Judge Gruber or Judge Cavarello would lean at the hearing.

Had the case went forward to trial, your BAC was presumptive evidence that you were intoxicated, and you would have been facing a misdemeanor conviction and far more significant penalties. See the attached link to the jury instructions.

You are very fortunate to receive the offer to a DWAI. In many counties, outside of Erie County, there would be no negotiation on a second charge if there had been a previous reduction. It is not common in Erie, either, so appreciate the opportunity that was given to you and don't second guess the decision that you made.

Also, keep in mind that a third DWAI is a misdemeanor according to the Vehicle and Traffic Law. If you have a drink (even just one), I would suggest not getting behind the wheel. A cab will be cheaper than a lawyer if you are pulled over for any reason.



Thanks for that response, it was the most thorough. I guess the reason why I asked in the first place was because there was a plea offered, and it is extremely rare for a plea to be offered under such circumstances. Makes me think something had likely been very wrong with the prosecution's case. No more arrests for me, money is not the issue, reputation and future is.


I'm glad your happy with the result. Make sure and let your attorney know as well.

This is not intended as legal advice. No attorney / client relationship exists because of this response.


You made the safe move. You avoided a criminal record.

I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


You did very well for yourself by taking the impaired. Good Luck.

The advice I have given does not bind the parties in any manner and is merely given as a courtesy.


Why are you now second guessing what you did? You did well, but that is not the point, unless your case was not prosecutable for some obvious reason. I am sure you and your attorney discussed things in detail and you felt this was the best option. Let historians worry about the past.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.