When a driver is convicted of a drinking and driving offense in a Rochester area court, he or she has a right to appeal the conviction, the sentence, or both.

Because it takes some time before the appeal will be heard by a higher court, a DWI defendant will have begun serving his or her sentence while awaiting the outcome of the appeal.

This can be especially problematical in cases where the defendant is incarcerated – which is not unusual in felony DWI convictions – because he or she may have served several weeks of incarceration before the appeal is decided.

To help avoid situations where a defendant is required to begin serving his or her sentence only to have the conviction or sentence later overturned, it is permissible for a court to stay or suspend the execution of the judgment against the defendant and release the defendant on bail – or even on his or her own recognizance – while an appeal is pending.

It is not, however, mandatory that the DWI defendant be released pending the appeal.Instead, it is at the discretion of the court.

When deciding whether to stay the judgment and release the defendant pending an appeal, courts are required under New York State law to consider several factors.

These include the defendant’s character, his or her employment and financial resources, the defendant’s family ties in the area and length of residence in the community, any prior criminal record or youthful offender findings, the defendant’s history of responding when required to appear in court, the sentence imposed, and the merit or lack of merit of the appeal.

As a result, anyone convicted of drinking and driving who plans to appeal and wishes the sentence stayed should work with his or her lawyer to provide the court with information which would support a stay of the sentence until the appeal is decided.

We are experienced DWI lawyers who understand the laws surrounding drinking and driving offenses and sentencing. If you need legal help, call us at 585-484-7432.