Photo Finish



Don't let anyone tell you that what is said in court is not as important as what is said out of court. In a recent case, our client is charged with one misdemeanor count relating to driving while intoxicated. Under New York Criminal Procedure Law 30.30, the prosecutor has 90 days to declare its readiness for trial on a misdemeanor DWI charge. This is essentially a 90 day clock and with each announcement of "not ready" along with an additional time request, that time is subtracted.

It was our client's first arrest for DWI but the district attorney's office refused to plea bargain and our client wisely chose to fight her case. We went to court with her several times and aggressively fought the charges. During each court appearance, the prosecutor in the courtroom relayed whether or not the prosecutor was ready trial and, when she was not, how much more time she requested in order to be ready. On two occasions, however, we noted that the prosecutor in the courtroom failed to make a specific request for additional time after announced that the assigned prosecutor was not ready for trial. When a prosecutor fails to make a specific time request on the record after announcing not ready, then the entire adjournment period could be subtracted from the 90 day period. People v. D.D., 910 N.Y.S. 2d 764 (NY Crim. Ct. 2010) (The People are charged for the entire adjournment where on September 18, 2009 they announced not ready and did not request a specific date for adjournment and the case was adjourned to October 20, 2009).

In other words, when the prosecutor in the courtroom did not explicitly say on the record in court how much additional time the assigned prosecutor was requesting to be ready, the 90 day clock began to run. The government has the burden of showing that any portion of 30.30 time is excludable. People v. Berkowitz, 50 N.Y.2d 333 (1980).

As in all of our cases, we kept careful track of the 90 time period, of what was said and what wasn't said in court, and promptly filed a motion to dismiss for a violation of our client's Constitutional Right to a Speedy Trial. Transcripts of the court proceedings show that the prosecutor exceeded the 90 day limit by only 1 day which will allow for dismissal of the misdemeanor DWI charges. Truely a photo finish. If you or a loved one is facing DWI charges in New York, contact us for a case evualuation.