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Motion to dismiss charges for DWI is denied.


The defendant is charged with violating five sections of the New York State Vehicle and Traffic Law. Two of the violations—of section 1192 (2) and (3), driving while intoxicated (per se) and driving while intoxicated (common law), respectively—are unclassified misdemeanors, and are therefore crimes. The simplified traffic information charging these crimes were on their faces made returnable in Nassau County District Court, located at 99 Main Street in Hempstead. The other three violations—of section 1128 (a), section 1163 (d) and section 375 (2) (a) (1), failure to maintain a lane, illegal turn, and no headlights, respectively—are traffic infractions.
A New York Criminal Lawyer said that, the defendant appeared with counsel in District Court. Despite the fact that only two of the tickets bore a District Court address, all five violations were listed on the District Court calendar, under a single docket number. The defendant was arraigned on the instruments charging all five violations. The case was then adjourned for conference. Apparently, neither the prosecutor nor the court took cognizance of the difference in return addresses on the tickets. Following the arraignment, the defendant went over to the TVA, at Cooper Street. The three tickets charging noncriminal violations appeared on the TVA calendar. The defendant, following a conference with the TVA prosecutor, disposed of the three tickets by pleading guilty to one reduced charge, and paid a fine.
A New York DWI Defense Lawyer said that, the defendant now moves to dismiss the DWI criminal charges. The defendant argues that the three non-criminal violations have already been disposed of, and that in light of the final disposition of three charges forming part of the same criminal transaction as, and consolidated with, the two DWI criminal charges, the two DWI criminal charges are now barred from prosecution by principles of double jeopardy, and must therefore be dismissed.

The issue in this case is whether the criminal charges of the defendant constitute double jeopardy.

The Court in deciding the case cited a 1984 case decision, in which the County Court had dismissed the indictment for domestic violence based upon the double jeopardy effect of the defendant’s plea of guilty in Babylon Village Court to the infraction of leaving the scene of an accident. The ticket for leaving the scene had been issued based upon the same incident out of which the DWI felony charges arose.

Taking note of the singular and unique purpose of the DWI laws — “to reduce human suffering and carnage caused by drinking drivers”—the Appellate Division in the 1984 case concluded that “either statutory exception would preclude application of a previous prosecution bar” to a DWI charge based on a plea to a simultaneously arising traffic infraction. The same reasoning would apply to the instant case, where the noncriminal charges of failure to maintain a lane, illegal turn, and no headlights, are as distinct from the DWI charges as was the leaving the scene charge from the DWI charge in the 1984 case. Thus, the instant defendant’s argument would appear to lack merit.

However, the Appellate Division in the 1984 case, after making its first holding, then addressed the issue upon which the instant defendant primarily rests his present motion: “More troublesome are the compulsory joinder provisions of CPL 40.40. Basically, that section prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements `under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions'”. The Appellate Division resolved this issue by determining that “offenses are joinable in a single accusatory instrument if they arise out of the same criminal transaction and the court has subject matter and geographical jurisdiction over both of them”.

The TVA, in which the disposition whose preclusive effect is advocated by the instant defendant was taken in the instant case, has no jurisdiction over DWI criminal charges. Therefore, the DWI charges could not have been joined there, just as the DWI charges could not have been joined with the traffic infractions in the courts in which the allegedly preclusive dispositions had been taken in the 1984 and other cases mentioned. Under those cases, it would therefore appear that the defendant’s motion must be denied. Sex Crime cases are different.

The defendant, however, argues that the cited cases are not dispositive. The defendant argues that a distinction arises from the fact that while in the cited cases the traffic infractions were never joined with the DWI charges, in the instant case the very same traffic infractions which were disposed of before the TVA were in fact joined with the DWI charges in District Court, and were in the process of being prosecuted together with them there, at the time of their disposition. Thus, says the defendant, the disposition of the traffic infractions before the TVA precludes further prosecution of the charges with which, in District Court, they were joined.
The instant case is in fact unique to the extent that it involves a situation in which a set of three accusatory instruments were apparently filed in the District Court, and then mistakenly docketed both in the District Court itself, and in the TVA. The previously cited cases do all operate on the assumption that each criminal charge will be pending in a single forum. In considering a situation for which there is no direct precedent, this court must nevertheless consider the principles lay down by courts in this area.

The defendant here could have requested dismissal or transfer of the three non-criminal charges before the TVA, in order to prevent him being subjected to separate prosecutions. Despite the fact that he went to the TVA fresh from having been arraigned on that very same morning on those very same charges in District Court, and thus was aware of the ministerial error which had resulted in the matters being calendared in both form, the defendant did not do so, but instead silently pleaded out the matters before the TVA.

While principles of double jeopardy would presumably apply to any attempt to now reprosecute the three instruments charging traffic infractions, and disposed of before the TVA, the effect of the disposition of those three instruments on the remaining DWI criminal charges must be resolved based upon the same compulsory joinder statute. Weapons make it more serious.

It should be noted that this resolution places the defendant in a similar position to the defendants in the above-mentioned cases. He obtained the benefit of a plea bargain, in a jurisdictionally inferior forum, of the traffic infractions with which he was charged, and is now free to contest the DWI charges lodged against him.

Accordingly, the Court held that, as the matters concluded before the TVA are not within the jurisdiction of this court, and as the defendant seeks no relief with respect to those charges here, the court does not address them. As to the Vehicle and Traffic Law § 1192 (2) and (3) charges, the defendant’s motion to dismiss them is denied.

The rule is that offenses are joinable in a single accusatory instrument if they arise out of the same criminal transaction and the court has subject matter and geographical jurisdiction over both of them. In order to invoke double jeopardy, there is a need to consult a New York DWI Defense Attorney and New York Criminal Attorney in order to have your case dismissed. Call us at Stephen Bilkis and Associates for free legal advice.

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