That is a loaded question for several reasons when facing DWI charges. One of those reasons is that New York has a tiered system of criminal punishment. I'll discuss each tier individually to help make things more clear.
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| Ithaca Police HQ |
LOWEST LEVEL= CONDITIONAL DISCHARGE
What is a "conditional discharge" ? (also referred to as a "CD")
It is basically an order from the court to stay out of trouble (usually for 1 year). Well, that begs the question- --what is trouble?
Trouble is getting a new arrest during this period. Note that I didn't say a conviction. As long as the ARREST is valid, you can be violated on your CD.
You can also be violated if the court gives you specific conditions (like abstaining from using drugs or alcohol) and you get caught.
If you violate the CD, the court may sentence you up to the maximum for the charge you either pled or were found guilty of... for misdemeanor DWI charges that term is 1 year in county jail. This also means that the judge can sentence you to anything in between...
I've had clients sentenced on violations of a CD that range from jail to simply prolonging the original CD year and adding conditions or community service. I have also had clients upgraded from a CD to a probation term.
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| IC Police Cruiser |
MIDDLE LEVEL = PROBATION SUPERVISION
This level of punishment means that the government will keep track of you and will give you court ordered obligations to check in with the Probation Department.
What is probation like?
1. You get a new set of rules to live by called "orders and conditions of probation." They are incredibly strict and usually require total abstention from drugs and alcohol, turn in any firearms you own, no new arrests, be on time for appointments, submit to drug tests, find employment etc etc etc
2. You give up your rights to privacy. If you are on probation, your probation officer can come to your house unannounced and demand entry to search the whole place. You cannot fight this--it is part of being on probation.
If at any point your officer feels that you are not complying with some rule or regulation of your probation sentence, they can file a violation against you.
If you are violated, the judge may resentence you up to the maximum sentence allowable for whatever crime you pled to or were found guilty.
3. Probation terms can be 2 or 3 years (for misdemeanors) or much longer for felonies. That is a long time to live under constant scrutiny and supervision. It is also a much longer time period for somebody to make a mistake and get violated.
I've had clients do well on probation and I have had clients that have been violated almost instantly. It is certainly not a good solution for somebody who has a significant problem with alcohol or drug abuse --due to the total abstention condition.
HIGHEST LEVEL = JAIL OR STATE PRISON TERM
When negotiating a plea offer or discussing things with a client, jail is often considered, by many clients and prosecutors alike, as "the harshest punishment."
If we are talking about state prison, I would have to agree. State prison sentences are to be avoided for the most part (unless you have done state time before and understand its pro's and cons). Ultimately, jail or prison is taking your freedom away, so it is certainly a big deal.
However, in my experience, short county jail terms (especially in Ithaca's Tompkins County jail) are usually LESS HARSH than a term of probation for most clients.
Obviously, if there is a choice between jail or probation, it is the client's decision to make. If I am asked my opinion on what a client should do, I would almost always advocate for the jail term.
Here are my typical reasons for advocating for a jail sentence over probation.
1. The jail sentence is always shorter than the probation term.
2. It is very unlikely that you will be violated on your CD while in jail in Ithaca.
3. The Tompkins County jail is one of the nicest, safest county jails in upstate NY.
4. The jail sentence is reduced by 1/3 for "good time" for everybody. So if you are sentenced to 15 days, you will only actually serve 10 days.
5. If you have a lawyer who understands how the jail tallies "days in" then you can come up with creative ways to shorten the time.
--SUMMARY THOUGHTS--
All of the above should be discussed with you if you are charged with ANY crime. Your lawyer should be aware of the upsides and downsides --and also the likelihood that one of these punishments will be imposed upon you or offered to you in a plea deal.
Bear in mind that these are generalized thoughts and my opinion could change on the above in a specific situation.
Bottom line is that every case is different and the potential punishment has to be analyzed by you and your counsel with the same vigor as the criminal case.
BY: Attorney Mike Cyr
P: 607-229-5184
E: mike.ithacadwi@gmail.com
Twitter: @ithacadwi
