A Rochester resident arrested for drinking and driving always faces the possibility of a sentence of incarceration.
In most cases, whether a defendant will be sentenced to any time in jail is solely at the discretion of the judge.
Under limited circumstances, however, New York State law requires that the defendant either be incarcerated for a short period of time or perform community service.
When a driver is convicted of Driving While Intoxicated or Driving with .08% or Greater BAC and was previously convicted of Driving While Intoxicated or Driving with .08% or Greater BAC within the past five years, the law requires that the judge impose a sentence involving at least five days of incarceration or, in the alternative, at least thirty days of community service.
If the driver convicted of Driving While Intoxicated or Driving with .08% or Greater BAC has previously been convicted of Driving While Intoxicated or Driving with .08% or Greater BAC two or more times within the past five years, the mandatory period of incarceration rises to at least ten days or, in the alternative, at least sixty days of community service.
The law requiring incarceration is very narrow in scope.
It makes no reference to offenses involving driving under the influence of drugs, and when the offense of Aggravated Driving While Intoxicated was added to New York State law, the statute requiring incarceration was not updated to include this more serious offense.
Even where incarceration is not mandatory under the specific terms of the statute, however, the sentencing Court is free to use it as a guideline in determining whether a jail sentence is necessary.
If you have been arrested for drinking and driving and need the help of an experienced DWI lawyer, we can help you defend your legal rights. Our number is 585-484-7432.