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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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Experience:  Experienced and knowledgeable criminal defense attorney.
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I was drinking moderately and passed out in a cab, I had just

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I was drinking moderately and passed out in a cab, I had just started taking a new prescription of bupropion which I didn't know wasn't supposed to be taken with alcohol, I was arrested for 3 misdemeanor's for theft of service $20, obstruction because I couldn't give my name in my impaired state and criminal mischief for kicking the door of the police car after arguing that my cuffs were too tight and I couldn't feel my hands. The cop stated that I argued with him and said I wanted to punch him, I would have his job, etc. I have no idea what I said in my impaired state. I only remember bits and pieces. I have received an ACD about 5 years ago for a disorderly conduct charge. My public defender insisted that my record was completely clean and that she could get me an ACD and not to worry about having a record. Is this possible? She stated that I had nothing on my record. Would it show up for her if I did have a prior ACD and could I get another one? And I have never reacted to anyone like the cop says I reacted, it is completely out of character for me, I believe it was due to the new prescription I was taking. I told my doctor what happened and he took me off the medication. Is that a valid argument?
Submitted: 5 months ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 5 months ago.
Thank you for the opportunity to assist you.

Q) My public defender insisted that my record was completely clean and that she could get me an ACD and not to worry about having a record. Is this possible?

Yes. An ACD is controlled by NY Penal Law 170.55. I've reviewed that statute, and there does not appear to be any limit on whether or not a person can get a second or later ACD.

Q) She stated that I had nothing on my record. Would it show up for her if I did have a prior ACD and could I get another one?

No, it will not show up, and yes you can get another ACD. The latter question is answered above. As for the first question, subsection 8 of NY Penal Law 170.55 gives us the answer:

The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

Translation: the court's file and your arrest record are sealed. To the rest of the world, it appears that your prior ACD never happened.

Q) And I have never reacted to anyone like the cop says I reacted, it is completely out of character for me, I believe it was due to the new prescription I was taking. I told my doctor what happened and he took me off the medication. Is that a valid argument?

Yes, but only for mitigation (i.e. lessening) of punishment. Your interaction with the officer was obviously due to the mixture of the medication and alcohol. Perhaps a sincere apology to the officer with this explanation is all that would be required to smooth things over.

As far as using this as a defense so that you would be found not guilty, no, this probably will not work. Intoxication is generally not a defense to most crimes, including the misdemeanor charges you have. The only way you'd potentially be able to use this as a defense is if someone ELSE, without your knowledge, drugged you and you were SO out of your mind you had no idea what you were doing. It doesn't sound like this applies to your situation.

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Take care,
Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 846
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and other Criminal Law Specialists are ready to help you
Expert:  S. Huband, Esq. replied 4 months ago.
Hello again,

I was notified that you rated the answer I gave positively, and I am very pleased and gratified that I was able to help you. I sincerely XXXX XXX matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Thank you very much for the opportunity to assist you.

Take care,
Shuband

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