The DWI Arraignment

Judges bench

So, you have been stopped by a police officer; subjected (with your consent) to a battery of field sobriety tests; arrested and processed; subjected (again with your consent) to a chemical test, then released or held for an arraignment. The arraignment is usually the first opportunity for the accused motorist to appear before a judicial officer.

The Judge before whom the accused motorist will appear for arraignment will have definite authority and responsibility as to the arraignment process and the accused. This responsibility and authority varies depending on the seriousness of the charge, but in every case includes:

  • Convening the court
  • Confirming the identity of the accused
  • Reviewing the complaint
  • Advising the accused of the alleged violation
  • Advising the accused to their right to an attorney
  • Permit the accused to immediately attempt to contact an attorney. The accused is also entitled to contact any person to notify them of the pending action.

How a refusal to take a chemical test affects the arraignment:   Under New York State Law it is presumed that a motorist will consent to take a chemical test for the presence of alcohol or drugs, after having been arrested for Driving While Intoxicated (DWI) (1192-3) and being requested to take the test after being warned of the effect of a refusal. The arresting officer must warn the motorist who has been arrested that if they refuse to submit to a chemical test, their license, or New York State privileges for out of state motorists, is subject to immediate suspension upon arraignment and a subsequent hearing (within 15 days) before a Department of Motor Vehicles administrative law judge to determine if his license should be revoked for a period of one year regardless of the outcome of the DWI prosecution. This means that a motorist can be found not guilty of the DWI charge and still have their license revoked merely for the refusal. The actual language of the warning is not included in this outline since it is not the intent to be an exhaustive review of the law but only a general outline for information purposes. There is a administrative fee for the refusal which would be collected by DMV.

In practice, upon a refusal, the motorist is often immediately taken before a magistrate who will take the license and schedule a hearing. Bail is frequently set, especially if the motorist does not have another driver present whose sobriety is not in question. Commitment to jail is possible if the police department does not have temporary holding facilities.

Prompt suspension:   When a motorist is arraigned on a DWI (1192-2 or 2a) and the BAC indicated in the accusatory papers indicate a BAC of .08 or higher, the magistrate is required to immediately suspend his license pending prosecution. The motorist is entitled to a hearing to establish if certain criteria has been satisfied. If the motorist requests an adjournment, the court will adjourn the matter for no more than 48 hours, after which a hearing will be conducted. If the court is satisfied that the statutory requirements have been met, the motorist’s license will be immediately suspended pending the disposition of the matter. Under certain circumstances the motorist may qualify for a “hardship license” which gives the motorist very limited driving privileges.

Release decision:   Upon the request for an adjournment to retain an attorney or apply for a court appointed attorney, and the entering a plea of not guilty, the court is in the position to make a release decision. The release decision is largely left to the discretion of the Local Criminal Court Judge, however in certain circumstances, the Local Criminal Court judge is specifically prohibited from setting bail or is required to seek the recommendation of the District Attorney as to the amount of bail.

The Local Criminal Court Judge is specifically prohibited from setting bail when the accused is charged with a Class “A” felony or has two prior felony convictions, or is charged with being a fugitive from justice. In these matters bail can only be set by a Superior Court Judge.

In all other Felony matters the district attorney must be contacted and is entitled to input as to the amount of bail. The Local Criminal Court may accept or reject the district attorney’s recommendation, however, the court is required to consider the recommendation and after reviewing the defendant's criminal history, facts and circumstances of the crime charged and other factors bearing directly on the likelihood of the defendant's re-appearance in court when required, the court may set a bail in accordance with the recommendation or set a bail in a lower or higher amount.

The issue of release, either on recognizance (without bail) or with bail is controlled by the following facts:

  • The nature of the crime charged
  • Probability of the accused reappearing in court when required
  • Accused ties to the community (homeowner – employment)
  • General demeanor of the accused. Courts will usually interpret disrespectful, combative and antagonistic attitude as reflecting negatively on the likelihood of the accused re-appearance when required.

The release decision may be conditioned on faithful compliance by the accused to certain requirements. These requirements include, but are not limited to, compliance to the terms of an Order of Protection, or other release terms.

  • Recognizance:   Unless restricted by statute, the Local Criminal Court can release a defendant on recognizance if a determination is made that the accused is most likely to re-appear for future court dates, with the seriousness of the charge taken into consideration. At this point the assistance of a knowledgeable and experienced attorney is vital in making a application if recognizance is likely to be approved by the court.
  • Bail:  The court may set several forms of bail. The usual form is cash or secured bail bond.   Courts will usually set bail in two amounts. (i.e. $1,000. cash or $2,500. secured bond). This means that in order to be released, the accused must deposit with the court $1,000. cash or arrange for a bail bond in the amount of a percentage of $2,500. (usually $250.) The bail bond is also secured by some item of personal property with a value of the face amount of a bond. (title to a home, bank book, title to an automobile).  The most significant difference between cash bail and a bail bond, is that the cash bail is subject to be returned by the court. The bail bond premium will never be returned by the bondsman and in fact, if the accused fails to appear as required, the bondsman is entitled to file a lien against the security and possibly force its sale to recover the face amount of the bond which the company paid to the court upon the accused failure to appear in court when required.  There are other forms of bail which are seldom used and will not be discussed here.
    • Cash bail is exactly that. A certain amount is deposited with the court to secure the re-appearance of the accused for all future court dates. When the matter is concluded the person is entitled to the return of the cash bail (less a small poundage fee if the matter is concluded in a finding of guilt). An earlier release of the cash bail is possible at the discretion of the court. Here again the services of a competent attorney will be indispensable in putting forth an argument for the return of the cash bail.

If the accused fails to appear in court when required, the court may and usually does forfeit the cash bail and it will not be returned even if the accused later appears in court. A bench warrant for the accused will usually be issued in this case.

    • Insurance company bail bond is issued by a representative of an insurance company (bail bondsman) in an amount of a percentage of the amount of the bail bond required.

Release or commitment:   The court makes a release decision and either releases the accused, either on recognizance or bail, or commits the accused to the local detention facility.   The local detention facility is usually the county jail or in some cases another facility if secure detention. Accused are sent to this facility either if they have failed to meet the judicial or legal standards for recognizance or has been unable to post the required cash bail or bail bond to secure their reappearance in court when required.

Options available to the accused - excessive bail:   If the accused or their attorney believes the release decision of the court is incorrect or the bail amount is excessive, an application to reconsider can be made to the court. A competent attorney may put forth arguments designed to convince the court to reconsider the recognizance decision or lower the amount of bail. If the court denies the application to reconsider the decision as to recognizance, or lowering of the bail is denied, an application can be made to the superior court to adjust the bail amount or release the accused without bail.

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