DWI from A-Z

Kimberly Lerner (516) 741-4100

DWI is a very difficult area to practice, especially in Nassau County. You have to deal with the criminal courts, the DA’s policies, the DMV rules and policies, probations rules and policies and the county attorney’s policy regarding forfeiture and the changes in the law.

ARRAIGNMENT

VTL section 1193(2)(e)(7) the prompt suspension law. The prompt suspension law applies when a defendant is charged with 1192(2), (2a), (3) or (4a). It does not apply to 1192.1 or 1192.4. It is only applied when there is a reading of a .08 or higher. It does not apply when there is a refusal of a chemical test.

In order to suspend the license the court must find:

• the accusatory instrument must be sufficient and conform to CPL 100.40.
• there is reasonable cause to believe that the defendant operated a motor vehicle with a .08 BAC or higher as shown by a chemical test.

REFUSAL

At the arraignment, the court is required to temporarily suspend the defendant’s driving privileges pending the outcome of a DMV refusal hearing. If the hearing does not take place within 15 days of the arraignment, privileges must be reinstated.

With a refusal it is important to note that the refusal hearing will take place at the Department of Motor Vehicle. Some lawyers do not attend or tell their clients not to attend. BIG MISTAKE

First, about half the time the officer does not show up. If it is the first time on, the Judge will adjourn the hearing. YOU MUST ASK THE JUDGE TO REINSTATE YOUR CLIENT’S PRIVILEGES. They used to give a piece of paper showing that the suspension was lifted, but I do not think they are doing that anymore in Nassau (it doesn’t hurt to ask for it).

If the officer shows up, it is a great opportunity for discovery. You get to question the officer under oath and find out a lot more about your case.

Remember the only issues for a refusal hearing:

• Was there reasonable suspicion to stop the vehicle
• Was there probable cause to arrest
• Was it a knowing and voluntary refusal

Refusal hearings are hard to win. Whether or not your client is guilty of DWI is irrelevant. In fact, you can be found guilty of a Refusal and found not guilty on the DWI (which causes a lot of other problems to be discussed later).

If the officer does not show up a second time, the Judge will put the paperwork in and if he/she finds all the elements are met, he/she will find a refusal without the officer present. Your client, of course, has the right to testify. You have the right to appeal any findings of refusal (and ask for a stay of the revocation).

*Note, the ADA now comes to these hearings, but you should object if they say a word because they have no standing.

If a defendant is found guilty of a refusal, there is a 1 year revocation of their license without the eligibility of a conditional, hardship, restricted or any type of license unless and until there is a conviction and your client is sentenced.

CONDITIONAL LICENSE (pre-conviction and post-conviction) and DDP

*See NYSDMV attachment.*

After arraignment, you must determine if your client is eligible for a conditional license 30 days after the date of arraignment. The Judge has the option of suspending a defendant’s license pursuant to VTL section 510(3a). If this discretionary suspension is issued, then you cannot get any type of license. The remedy in that situation is to get your client into therapy and then go before the Judge who issued the suspension. Most Judges will not lift another Judges suspension, so you must go see the Judge who issued the suspension.

ELIGIBLE FOR DDP, BUT NOT FOR CONDITIONAL LICENSE

Some motorists are eligible for the DDP, but not for a conditional license because they:

• were convicted of homicide, assault, criminal negligence or criminally negligent homicide while driving;
• were in a fatal crash and convicted of an alcohol or drug offense;
• do not have a renewable NYS driver license;
• were mandated by the court to attend DDP, but were convicted of a prior alcohol/drug violation within the preceding five
• years from the current alcohol/drug violation.
• were convicted of another offense which carries a mandatory suspension or revocation, when convicted of the present
• alcohol or drug offense;
• had two or more other suspensions or revocations in the last 3 years;
• were convicted of reckless driving more than once in the last 3 years;
• have suspended/revoked licenses for moving violations other than the current DWI/DWAI;
• have driving records suggesting an unusual or immediate highway risk;
• are prohibited by probation conditions from having licenses;
• were convicted while driving a school bus, taxi, bus or livery with passengers;
• are ineligible for a conditional use license due to conviction of an alcohol violation subject to the penalties under V & T

Section 1193-1(d) while operating a CMV (Commercial Motor Vehicle).

If license was not suspended pursuant to 510.3, your client may be eligible for a conditional license. They are NOT eligible if they have a prior within the past 5 years (they can only take the DDP once every five years, but you cannot “bank” the DDP).

If they are eligible, 30 days after arraignment they got to DMV, Driver Improvement window, pay $75 and get their pre-conviction conditional license, which is good until sentence.

HARDSHIP LICENSE

• In Nassau County, the ADAs generally doesn’t consent
• Burden on defendant to show “extreme hardship”
• Must have independent witness or corroboration
• Violation of conditions is a crime
• Exact times

Extreme hardship shall mean the inability to obtain alternative means of travel to or from the licensee’s employment, or to or from necessary medical treatment for the licensee or member of their household, or if the licensee is a matriculating student enrolled in an accredited school or college and such travel is necessary to obtain a degree.

The hardship hearing must be held within 3 business days.

THERAPY AND OASAS certified providers

Is the website that will provide you with OASAS certified providers in every state. In Nassau County, the court requires that every person be screened for treatment needs. Other counties, it varies by BAC level whether a screening is required.

Differences between 1192.2 and 1192.2a — what does aggravated really mean?

PLEA-BARGAINING

Plea bargaining varies by county. Nassau County will offer an impaired if the BAC is below a .13 and there are no aggravating factors (such as high speed, etc). There will be no offer if there is a prior impaired or DWI, regardless of how long ago it was. There is a no plea policy on refusals, but they have softened up lately and analyze the cases on a case by case basis. You must see Laura Carroll if you need a supervisor conference.

The first time the case is on, you can adjourn it for VDF’s (voluntary disclosure forms). This means the ADA will turn over the documents that they are required to by statute (you can also serve a demand for discovery).

The next time the case is on, the People will have their recommendation and offer. You can conference with the Judge for a commitment or put it over for a motion schedule. That is when you and your client must decide whether a plea or trial is in their best interests.

PLEA

* remember to ask for a 20 day stay at sentence

Plea to impaired: Generally if the People offer the impaired in Nassau, they will require community service through the EAC program, VIP program, DDP and fine and there will be a 90 day suspension of the license. Ignition interlock is NOT mandatory and I have never seen it done on an impaired, however the Judge does have the authority to mandate it. The Judge can issue a 20 day stay of the suspension. The pre-conviction conditional license is no longer valid.

Plea TTC with a conditional discharge- If the Judge gives a conditional discharge, there will generally be community service, and as long as it is non-aggravated, there will be a 6 month license suspension, fines, DDP. They must go down to the AIM to discuss ignition interlock.

Plea Probation/Jail- If the defendant is going to get probation, the court will order a pre-sentence report and the defendant must report to probation. If the defendant gets rearrested or fails to cooperate with probation, the judge is not bound by his commitment. If the judge cannot honor his commitment, he will give the defendant his plea back.

PROBATION

Consecutive to any jail sentence

Ignition interlock as a condition of probation

Permission of probation before you apply for any license (delay in Albany getting letter)

Out of county probation *important*

Conflict between probation and the statute

DDP post conviction conditional license

Do not get a 20 day stay if suspended for refusal because cannot stay that suspension.

If cannot afford interlock waiver form

Good cause orders if no car

September 2010: Leandra’s Law, Mandatory Ignition Interlocks and New Sentencing Provisions in DWIs

Leandra’s Law: DWI with a child passenger 15 years old or younger.

Effective date Friday, December 18, 2009

New section: VTL §1192-2a(b)

E felony;

Sanctions: are the same as for other DWI felonies in VTL 1193(1)(c) (except for existing mandatory ignition interlock for Aggravated DWIs, which applies)

Fine: $1,000 – $5,000

Jail: Same as Penal Law (PL) E felonies; up to 1 and 1/3 – 4 years.

Probation, Conditional Discharges (CD) and Jail/Probation split sentences are possible

No Unconditional Discharge.

Sentence of Probation or CD must include a fine. [VTL §1193(1)(e)]

Mandatory Ignition Interlock: All sentences for a conviction of either subsection of

VTL §1192(2-a) [Aggravated DWI, including Leandra’s Law] that include a period of probation require an ignition interlock as a condition [VTL §1193(1)(b)]

Ignition Interlocks for any DWI offense currently require a probation sentence

[VTL §1198(1)(2)].

Effective August 15, 2010, interlocks can be a condition of a conditional

discharge [Newly amended VTL §1198].

Conditions of Probation or Discharge: Victim Impact Panels, Community Service and Alcohol or Drug treatment are all possible [PL §65.10]

Alcohol “Screening” is required for all DWI defendants with a BAC under .15 or a refusal. An Alcohol “Assessment” is required prior to sentencing for all BACs of .15 or higher, or anyone determined in the screening to be abusing or dependent on alcohol [VTL 1198-a(2)(a)(b)(c)].

License Sanction: Upon conviction, one year revocation [VTL §1193(2)(b)(2)]

Pending Prosecution suspensions [VTL §1193(2)(e)(7)] and Refusal revocations [VTL §1194(2)(d)(1)]apply. Conditional licenses may be obtained pursuant to VTL §1196.

Elements:

Aggravated DWI; Child in Vehicle

• 1) Operation of a motor vehicle
• 2) On a public highway within the county
• 3) a) With a BAC of .08 or higher [in violation of VTL §1192(2)]; OR
• b) In an intoxicated condition [in violation of VTL §1192(3)]; OR
• c) Impaired by drugs [in violation of VTL §1192(4)]; OR
• d) Impaired by the combined influence of drugs or drug(s) and alcohol [in violation of VTL §1192 (4-a)]
• 4) And with a child passenger who is 15 years old or less.

*The statute does not specify Aggravated DWI with a BAC of .18 or more [in violation of VTL §1192(2-a)]. The legislature apparently believed there could not be an Aggravated DWI charge without a violation of VTL §1192(2). Both crimes should be charged when appropriate.

Miscellaneous:

Plea Restrictions: Both subdivisions of Aggravated DWI (including Leandra’s Law) prohibit a plea in satisfaction of the charge to a Driving While Impaired by Alcohol. The plea must include Aggravated DWI or any misdemeanor DWI unless the district attorney finds the evidence does not support the charge. The court must put the basis of any disposition outside these limitations on the record.[VTL §1192(10)(d)]

Simplified Traffic Informations/UTTs: The officer must make a “CIV” notation in the “Description of Violation” section when there is a charge of DWI and there is a “Child in Vehicle” (CIV) who is 15 years old or less. [VTL §1192(12)(a)]

Child Protective Services (CPS) Notification: Where the officer determines the driver is the parent, guardian, custodian or is otherwise legally responsible for the child, 15 years old or less, in the vehicle, the officer must notify CPS or other appropriate agency under article 6 of the Social Service Law. [VTL §1192(12(b)]

Assaults and Homicides:

Vehicular Assault 1º PL §120.04(6) [Class D, Non-violent felony]

New Subdivision:

• A person is guilty of first-degree Vehicular Assault when he or she commits Vehicular Assault in the Second Degree and commits such crime while operating a vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes serious physical injury to such child.

Aggravated Vehicular Assault PL §120.04-a (6) [Class C, Non-violent felony]

New Subdivision:

• A person is guilty of Aggravated Vehicular Assault when he or she engages in reckless driving [VTL §1212], commits Vehicular Assault in the Second Degree and commits such crime while operating a motor vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes serious physical injury to such child.

Vehicular Manslaughter in the First Degree PL §125.13(6) [Class C, Non-violent felony]

New Subdivision

• A person is guilty of Vehicular Manslaughter in the First Degree when he or she commits the crime of Vehicular Manslaughter in the Second Degree and commits such crime while operating a motor vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes the death of such child.

Aggravated Vehicular Homicide PL §125.14(7) [Class B, Non-violent felony]

New Subdivision

• A person is guilty of Aggravated Vehicular Manslaughter in the First Degree when he or she engages in reckless driving [VTL §1212], commits the crime of Vehicular Manslaughter in the Second Degree, and commits such crime while operating a motor vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes the death of such child.

Elements:

The existing rebuttable presumption that the defendant’s manner of driving, that caused the death or serious physical injury, resulted from his or her alcohol or drug impairment applies to each of the new “Leandra’s Law assault and homicide sections:

Existing Presumption:

“If it is established that the person operating such motor vehicle, caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle, in a manner that caused such serious physical injury, as required by this section.”

1º Vehicular Crimes :

• 1) Operation of a motor vehicle
• 2) On a public highway within the county
• 3) a) With a BAC of .08 or higher [in violation of VTL §1192(2)]; OR
• b) With a BAC of .18 or higher [in violation of VTL §1192(2-a)]; OR
• c) In an intoxicated condition [in violation of VTL §1192(3)]; OR
• d) Impaired by drugs [in violation of VTL §1192(4)]; OR
• e) Impaired by the combined influence of drugs or drug(s) and alcohol [in violation of VTL §1192 (4-a)]
• 4) With a child passenger who is 15 years old or less
• 5) a) [Vehicular Assault 1º] And causes serious physical injury to such child passenger; b) [Vehicular Manslaughter 1º] And causes the death of such child passenger.

Aggravated Vehicular Crimes :

• 1) Operation of a motor vehicle
• 2) On a public highway within the county
• 3) a) With a BAC of .08 or higher [in violation of VTL §1192(2)]; OR
• b) With a BAC of .18 or higher [in violation of VTL §1192(2-a)]; OR
• c) In an intoxicated condition [in violation of VTL §1192(3)]; OR
• d) Impaired by drugs [in violation of VTL §1192(4)]; OR
• e) Impaired by the combined influence of drugs or drug(s) and alcohol [in violation of VTL §1192 (4-a)]
• 4) While engaged in reckless driving (to wit___)
• 5) With a child passenger who is 15 years old or less
• 6) a) [Aggravated Vehicular Assault ] And causes serious physical injury to such child passenger; b) [Aggravated Vehicular Homicide] And causes the death of such child passenger.

Mandatory Ignition Interlocks: Effective date August 15, 2010*

*Subject to “sunset” or statutory repeal on September 1, 2011 unless extended by the legislature. VTL §1198 has been extended many times over the years.

Mandatory. A conviction for any misdemeanor or felony DWI under VTL sections 1192(2),(2-a) or (3), or a conviction for any Penal Law charge that has a violation of those VTL §1192 sections as an essential element, requires a mandatory sentence: 1) to install an ignition interlock device on any car owned or operated by the defendant for at least 6 months;

2) prohibiting the defendant from operating any vehicle without an ignition interlock device [VTL 1198(9)(d)]; and 3) requiring DMV to note the interlock restriction on the defendant’s operating record* [VTL §1198(4)(b)]. There is no mandatory provision to install an interlock device on a DWAI but the court may make it a condition of a sentence of a conditional discharge in its discretion. [PL §65.10 (2)(k-1)].

(*DMV will now mark the physical license of anyone sentenced to an ignition interlock with a restriction code on the front of the license. The back of the license reflects that the restriction requires interlock use. The annotation is generally accomplished through the acquisition of a conditional license. If the driver does not obtain a new physical document, the computer record indicates the restriction.)

Monitoring. The Division of Probation or Correctional Alternatives has promulgated regulations [VTL §1193(1)(g)] at 9 NYCRR 358:

• governing the monitoring of compliance
• providing standards for monitoring by departments of probation
• providing alternatives to probation monitoring that counties may adopt.
• providing a system of payment plans or waivers for indigent defendants.

[VTL §1198(5)(a)] Cost. The defendant is required to pay for the ignition interlock device (installation, monthly interlock provider fee and removal fee). If the court determines the defendant is “financially unable” to pay for the device, a payment plan will be devised or the fee “waived” in accordance with the Division of Probation or Correctional Alternatives regulations or “such other agreement as may be entered into for provision of the device.” [VTL §1198(5)(a)] DPCA has created a “Financial Disclosure Form” to assist the court in determining whether a defendant can “afford” an interlock. It is not the same analysis used in determining a defendant’s eligibility for a constitutional right to legal representation.

Criminal Charges for Interlock Violations:

• VTL §1198(7)(a) [Misdemeanor]: Any requirement of this article or the penal law that a person operate a vehicle only if it is equipped with an ignition interlock device shall apply to every motor vehicle operated by that person including, but not limited to, vehicles that are leased, rented or loaned.
• VTL §1198(7)(b) [Misdemeanor]: No person shall knowingly rent, lease, or lend a motor vehicle to a person known to have had his or her driving privilege restricted to vehicles equipped with an ignition interlock device unless the vehicle is so equipped. Any person whose driving privilege is so restricted shall notify any other person who rents, leases, or loans a motor vehicle to him or her of such driving restriction.
• VTL §1198(9)(a) [Class A Misdemeanor]: No person whose driving privilege is restricted to operate a motor vehicle only with an ignition interlock device pursuant to the Vehicle and Traffic Law or the Penal Law shall request, solicit, or allow any other person to blow into an ignition interlock device , or to start a motor vehicle equipped with the device, for the purpose of providing the person so restricted with an operable motor vehicle.
• VTL §1198(9)(b) [Class A Misdemeanor]: No person shall blow into an ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person whose driving privilege is so restricted.
• VTL §1198(9)(c) [Class A Misdemeanor]: No person shall tamper with or circumvent an otherwise operable ignition interlock device.
• VTL §1198(9)(d) [Class A Misdemeanor]: No person subject to a court ordered ignition interlock device shall operate a motor vehicle without such a device.

Other Sanctions:

• Failure to provide proof of compliance with the ignition interlock requirement may result in the revocation, modification, or termination of the defendant’s sentence of probation or conditional discharge. The defendant may be re-sentenced as provided by law. [VTL §1198(4)(a)]
• Failure to install or maintain an ignition interlock may result in the revocation of the defendant’s post-revocation conditional license. [VTL §1198(3)(c)]

*Note: There are several references in the statutes that nothing in these sections permits the court to authorize a defendant’s operation of a motor vehicle if he or she is not otherwise eligible.

Sentencing Provisions: Effective date August 15, 2010

Application: Applies to defendants who have committed on or after November 18, 2009 and sentenced on or after August 15, 2010.

Non-prison sentences: When a defendant is convicted of a misdemeanor or felony DWI under VTL §1192(2),(2-a) or (3)* and receives any sentence of incarceration including upstate prison time and/or local jail time up to one year, the court must also sentence the defendant to a period of probation or conditional discharge [VTL 1193(1)(c)] to run consecutively to any sentence of incarceration. [PL §60.21 – New section]

New PL §60.21 creates a specific exception to existing PL §60.01(2)(d) for DWI cases. Currently under PL §60.01(2)(d) when a defendant is sentenced to a period of probation, the statute prevents an additional jail sentence in excess of 60 days on any misdemeanor and 6 months on any felony. Those restrictions no longer apply to DWIs as of August 15, 2010. This creates the possibility of a one year jail sentence with a consecutive period of 3 years probation on misdemeanors or 5 years probation on felonies.

*PL §60.21 does not specify that the DWI-related Penal Law felonies of Vehicular Assault, Vehicular Manslaughter, or Aggravated Vehicular Assault are subject to the consecutive probation or CD provision. Therefore, if a defendant pleads guilty to one of those felonies the prosecution should require a separate plea to one of the DWI sections to obtain consecutive probation or a CD for the purpose of monitoring the mandatory interlock whether or not the defendant is receiving an upstate prison sentence.

Prison sentences: Where a defendant is sentenced to upstate prison on any DWI-related felony, including Vehicular Assault, Vehicular Manslaughter, Aggravated Vehicular Assault or Homicide, and the defendant is released on parole or conditional release, new subdivision 15-a of Section 259-c of the Executive Law requires the defendant to install and maintain an ignition interlock device during the term of parole or conditional release. The new section also states the parole board is not empowered to allow a defendant to drive who is not otherwise eligible.

Authorized Dispositions: New Penal Law section 60.36 specifies that where a court is imposing a mandatory ignition interlock device as a part of its sentence, the court may still impose any other authorized penalty