Around the State, many counties have a standard DWI policy that dictates the terms of a plea bargain for a person charged with DWI. In most counties it is pretty straightforward and makes sense. Generally, for a first time offender, the charge for the defendant gets knocked down one level and depending on the blood alcohol content (BAC), perhaps an alcohol evaluation.

Not so in Albany County.

Under the guise of leading the State in addressing addiction related crimes, Albany County has the strictest and perhaps most confusing DWI reduction policy in the State. You may ask why is it confusing? Because unless your BAC was .14% or lower, there are no real reductions. You plead guilty to a misdemeanor DWI or Aggravated DWI and you take the sentence they offer you. Essentially, the District Attorney has usurped the Court and become the prosecutor and the sentencing judge.

Here are some examples that may happen and the results as per their written DWI policy:


Allegation:                   Rolled through a stop sign and arrested for first DWI with a BAC of .15%. No accident, no injuries.

Policy Result:              First, get an alcohol evaluation (at a cost of $150-$300) then you may plead guilty to DWI, continue alcohol treatment if recommended by said evaluation, attend the Victim Impact Panel (VIP), take the 7 week impaired driver program (also known as the drinking driver program) through the DMV, fine of $300-$500, mandatory surcharge of $400, and lastly, waive your right to appeal.

The last part is actually the scariest part of all of this. In this scenario, the D.A. has essentially traded you a dismissal of the Stop Sign ticket for you waiving a constitutional right. This is economic duress at its finest as most people in this same position have already spent so much money that the fine and surcharge on the Stop Sign ticket is their breaking point.


Now, this is where it starts to get interesting. Take a look at these next two:

Allegation:                   Speeding 41 in a 35 and arrested for first DWI with a BAC of .28%. No accident, no injuries.

Policy result:                Plead to Aggravated DWI, include everything from above and add in 3 years of probation and a $1000 fine.


Allegation:                   Absolutely wrecked, bombed, wasted, whatever you want to call it. Speeding ticket, tint ticket, failure to stay in lane, blow through a red light. Refused the breath test because you know you were breathing fire.

Policy result:                Even through you would have blown a .28%, here the result is the same as for the person who had the .15%. No probation. What does this say? It says that if you are not too drunk you should blow. But, if you are bombed, then you will probably do better by refusing the breath test.


I am all for safer roads and it’s a good day when no one calls needing a DWI attorney. That being said, most attorneys like when rules and policies make sense. There’s nothing harder to do than to explain to a client who received a DWI in Guilderland or Cohoes or Menands or Albany why someone who has arguably more criminal culpability gets a better deal by not cooperating with the police.

I’ve heard it from plenty of prosecutors in the area; this policy handcuffs them from actually looking at a DWI case objectively and often leads to one of two outcomes. 1) An acquittal because the policy doesn’t actually look at the merits of the case, or 2) a person entering probation for three years who simply doesn’t need probation and becomes a burden to the taxpayers. What’s even scarier is that the prosecutors are not permitted to exercise their own personal and professional judgement, and if they diverge from the policy without prior and explicit permission, they get fired. I’m not exactly sure where this racks up in terms of our State’s ethical rules, but eventually some young attorney is going to push a case to trial that has absolutely no merits going to trial, out of fear of being fired. Do you think the D.A. will stand up for that attorney when the ethical committee is questioning them regarding a malicious prosecution?

I too was once a prosecutor. I’ve handled 1,000s of cases. However, when I was learning this trade, certain “policies” were never mandated. In fact, I was taught that a one size fits all policy does more to eviscerate justice than it does to promote it. My job back then was to look at each case; the facts of each case and make a determination based on those. I was taught that if the case was exceptionally serious, then to speak with a more experience prosecutor who would help you find the right offer if there was one to give.

Over the years, I’ve gotten a little older, a little wiser, and a touch greyer. But I’ve taken these tools with me everywhere I’ve gone. If anything, it taught me to be patient and to know every knowable fact in a case. This is where success for our clients at the Kokosa Law Firm comes from. It doesn’t come from exacting policies. It is a combination of always paying attention, knowing your facts, and knowing when to talk and when to be quiet.

As always, this blog is for discussion purposes only. This is not legal advice. This is merely observations of the state of our union by a criminal defense attorney in Albany County and who practices in Rensselaer County, Saratoga County, Schenectady County, and beyond. If you need a DWI lawyer and would like to talk about the facts of your specific case, please always feel welcome to contact us at 518-907-4694 or .