The elements of the basic charge, PL 120.03, are as follows:

§ 120.03 Vehicular assault in the second degree.

A person is guilty of vehicular assault in the second degree when he

or she causes serious physical injury to another person, and either:

(1) operates a motor vehicle in violation of subdivision two, three,

four or four-a of section eleven hundred ninety-two of the vehicle and

traffic law or operates a vessel or public vessel in violation of

paragraph (b), (c), (d) or (e) of subdivision two of section

forty-nine-a of the navigation law, and as a result of such intoxication

or impairment by the use of a drug, or by the combined influence of

drugs or of alcohol and any drug or drugs, operates such motor vehicle,

vessel or public vessel in a manner that causes such serious physical

injury to such other person, or

(2) operates a motor vehicle with a gross vehicle weight rating of

more than eighteen thousand pounds which contains flammable gas,

radioactive materials or explosives in violation of subdivision one of

section eleven hundred ninety-two of the vehicle and traffic law, and

such flammable gas, radioactive materials or explosives is the cause of

such serious physical injury, and as a result of such impairment by the

use of alcohol, operates such motor vehicle in a manner that causes such

serious physical injury to such other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of

subdivision one of section 25.24 of the parks, recreation and historic

preservation law or operates an all terrain vehicle as defined in

paragraph (a) of subdivision one of section twenty-two hundred

eighty-one of the vehicle and traffic law and in violation of

subdivision two, three, four, or four-a of section eleven hundred

ninety-two of the vehicle and traffic law, and as a result of such

intoxication or impairment by the use of a drug, or by the combined

influence of drugs or of alcohol and any drug or drugs, operates such

snowmobile or all terrain vehicle in a manner that causes such serious

physical injury to such other person.

If it is established that the person operating such motor vehicle,

vessel, public vessel, snowmobile or all terrain 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, vessel,

public vessel, snowmobile or all terrain vehicle in a manner that caused

such serious physical injury, as required by this section.

Vehicular assault in the second degree is a class E felony.

The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5)); or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).

One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element. An experienced New York DWI attorney would seemingly make that a top priority. Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.

If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with top new york criminal defense lawyers before proceeding.

First of all, the question may arise, “What is bail?” Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections. In most cases, that would be an amount of money designated by the judge in either cash or bond. The difference between these two methods of bail will be explained later.

It should be noted that in the case of many first-time offenders, no bail will be set at all. This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges. Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes. Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance. This is sometimes called “ROR.” In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender. The criteria that the judge will consider is set forth in the Criminal Procedure Law:

2. To the extent that the issuance of an order of recognizance or bail and the terms thereof are matters of discretion rather than of law, an application is determined on the basis of the following factors and criteria: (a) With respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance when required. In determining that matter, the court must, on the basis of available information, consider and take into account: (i) The principal’s character, reputation, habits and mental condition; (ii) His employment and financial resources; and (iii) His family ties and the length of his residence if any in the community; and (iv) His criminal record if any; and (v) His record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any; and (vi) His previous record if any in responding to court appearances when required or with respect to flight to avoid criminal prosecution; and (vii) If he is a defendant, the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction; or, in the case of an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and (viii) If he is a defendant, the sentence which may be or has been imposed upon conviction.

Many of these factors are self-explanatory. If a person has a prior criminal history, or a record of not showing up to court, the judge will probably set an amount of bail that he or she feels is necessary to secure his or her attendance in court. However, if the charge is serious, then it is very important to try to retain an experienced New York City criminal lawyer before your friend or loved one sees the judge. The lawyer will be able to assist in gathering information and proof that the judge will consider in making the court’s bail decision. This material can include papers considering his or her employment, paystubs, proof of residence, and other material that will be helpful in convincing the court to either ROR the defendant or set an amount of bail that he or she can actually make.

Assuming that the judge sets bail, one needs to be informed as to the precise method specified by the court. For example, a judge may set bail in the amount of $100,000 bond over $50,000 cash. The best way to explain this is to start with the cash alternative. In this example, if a family member has $50,000 in cash, that can be posted to secure the defendant’s attendance, with no other steps being necessary. Bail can be paid either at the courthouse or the corrections facility where the defendant is being held. If the bail is going to be made at the court, it is probably best to speak with an attorney to get an idea of how much the bail may be so that you can come prepared with money necessary. On the other hand, if the defendant chooses to go with the $100,000 bond alternative, he or she must deal with a bail bondsperson. The bondsperson’s job is simply to gauge the amount of risk he or she is willing to take that the defendant will return to court when required. In exchange for taking on this risk, he or she takes a fee. Every situation is different, but a bondsperson will usually ask the friend or family member of the arrested person to pay a percentage of the total bond amount, and then provide some sort of security for the remainder. Again using the example of a $100,000 bond, the bondsman may ask for $10,000 cash, and the deed to a home or other form of collateral to secure the other $90,000. At the end of the case, the bondsperson will give you back the cash you posted, less a fee that he or she takes for assuming the risk.

Remember that in dealing with a bondsperson, they may have reporting requirements or “check ins” that will occur periodically to ensure that they are in touch with the defendant. If the defendant does not comply with the conditions of the bond, the bondsperson can go to the court and ask that the bond be revoked and that the defendant be taken into custody.

With that said, the best possible thing to do is to retain an attorney before the initial hearing because the attorney can do two things: (1) make a reasoned and cogent argument to the judge as to why no bail should be set (“ROR”) or that a lower amount of bail is necessary than what the Assistant District Attorney may ask for and (2) if bail is set, put you in touch with a respectable bail bondsperson and assist in the bail making process.

Should you need advice as to how any of this works, you should contact a New York City bail attorney.

The basic component or “elements” of alcohol and drug related driving offenses are the following: (a) operation of a motor vehicle or vessel, (b) on a public highway or the waters of the State, (c) while in an impaired or intoxicated condition at the time of such operation, (d) due to the voluntary consumption of alcohol or drugs.

You might be surprised to learn that a person is deemed to “operate” a motor vehicle if he/she is behind the wheel while the engine is running. As such, there is no requirement that the person charged be observed “driving” the vehicle in the traditional sense that the vehicle be observed in motion. The law is clear that “operation” of a motor vehicle is established where there is a “present intention” of placing the vehicle in operation. Courts have found that people who are asleep at the wheel of a parked car with a key in the ignition and the engine running “operated” a vehicle for purposes of a DWI charge. In fact, courts have upheld convictions where drivers were asleep or unconscious at the wheel of vehicles which were parked in their own driveways as they were deemed to have operated a vehicle on a “public highway” – public highway including highways, private roads open to motor vehicle traffic, parking lots, and even driveways to residences.

As you can see from the summary of charges below, DWI offenses are very serious, and they carry severe penalties and consequences. If you or someone close to you has been accused of driving while impaired or intoxicated, contact an experienced criminal attorney immediately.

Some of the more common drinking and driving offenses:

VTL § 1192.1: “Driving while ability impaired.” This section states that no person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. “Impairment” means impairment to any extent of the physical and mental abilities needed to be possessed in order to operate a vehicle as a reasonable and prudent driver.

Penalties: This is the least severe of the DWI charges as it is a traffic infraction (not a crime) which is punishable by up to 15 days in jail, and/or a fine of $300-$500, and 90 day license suspension for first time offenders. Second offenders face up to 30 days in jail and increased fines and license revocation for 6 months, while third time offenders face up to 90 days in jail, as well as increased fines and 6 month license revocation.

VTL § 1192.2: “Driving while intoxicated, per se.” This section states that no person shall operate a motor vehicle while such person has .08 per centum or more by weight of alcohol in the person’s blood* as shown by chemical analysis of such person’s blood, breath, urine or saliva.

Penalties: first time offenders convicted under this section face up to one year in jail, and/or a fine of $500-$1000 and a mandatory license revocation of six months. The law may also require that an ignition interlock device be placed on any vehicle operated by the defendant for a specified period of time.

*Note: If a person has .18 of one per centum or more by weight of alcohol in their blood, they may be charged with aggravated driving while intoxicated, a misdemeanor which carries up to one year in jail and a fine of $10,000-$25,000.

VTL § 1192.3: “Driving while intoxicated (common law).“ This section states that no person shall operate a motor vehicle while in an intoxicated condition, meaning the consumption of alcohol has caused impairment which renders that person incapable, to a substantial extent, of employing the physical and mental abilities which are needed to be possessed in order to operate a vehicle as a reasonable and prudent driver. There is no requirement that a person submit to a breathalyzer test for a charge under this section to apply.

Penalties: This is a class “A” misdemeanor which carries up to one year in jail and/or a fine of $500-$1,000, and a mandatory license revocation of six months.

VTL § 1192.4: “Driving while ability impaired by drugs.” No person shall operate a vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug.

Penalties: This is a class “A” misdemeanor for first time offenders, which carries up to one year in jail and/or a fine of $500-$1,000 and mandatory license revocation of 6 months.

Felony DWI: A person who operates a vehicle in violation of § 1192.2, 1192.3 or 1192.4 can be charged with a class E felony if he or has been previously convicted of any DWI misdemeanor, vehicular assault or vehicular manslaughter within the preceding ten years*.

Penalties: As a class “E” felony, incarceration of up to 4 years may be imposed, as well as a fine of $1,000-$5,000, and mandatory license revocation for 1 year.

*If a person has two such prior convictions, they may be charged with a class “D” felony which carries up to 7 years in jail and higher fines.

“Lenadra’s Law”: Under Leandra’s Law, first time offenders driving while intoxicated or impaired by drugs who have a child passenger younger than sixteen years old can be charged with a class E felony which is punishable by up to 4 years in jail. Intoxicated drivers or those under the influence of drugs who cause the death of a child younger than 16 in the car can be charged with a Class B felony, which is punishable by up to 25 years in prison. If such a driver causes serious physical injury to a child in their vehicle, they can be charged with a Class C felony,which is punishable by up to 15 years in prison.

The Family Court process can be daunting for a family inexperienced in defending against allegations such as these, even in juvenile arrest matters. A young defendant and his or her family will most likely be interviewed by probation and if the charge warrants it, be brought before a judge where an adjudication of juvenile delinquency can be made either through an admission or, in some cases, after a fact-finding hearing. The Family Court Act requires the attendance of the juvenile respondent and his or her counsel to be present during such a hearing. It is for this reason, that it is important that your child’s rights are protected by a lawyer experienced in handling juvenile arrest cases. If an adjudication of juvenile delinquency is made, the Family Court Act requires a dispositional hearing to take place within 10 days of the adjudication (if the charge is a felony) or within 50 days of the adjudication (for all other cases). The possible outcomes of a dispositional hearing for a juvenile defendant are three: (i) a conditional discharge, which for all intents and purposes is an order from the court requiring the juvenile to stay out of trouble and comply with whatever other conditions the court deems necessary to correct the behavior, (ii) probation, which would imply reporting to a probation officer for a set period of time, or, in extreme cases (iii) placement in a juvenile detention facility. The court’s decision will be the result of a balancing of the needs of the juvenile against the need to protect the community.

Simply put, should a loved one or family member of yours require assistance in sorting out a family court or adult criminal matter, you should call The Law Office of Matthew Galluzzo.

1. A Hardship Privilege is Known in New York Law

While it may be possible to obtain a conditional license pursuant to a negotiated plea or on account of other circumstances in a DWI case, this post deals with the hardship license, or, to be more precise, the “hardship privilege” as described in Vehicle and Traffic Law (“VTL”) 1193(2)(e)(7)(e). That provision states, in relevant part, as follows:

If the court finds that the suspension imposed pursuant to this subparagraph will result in extreme hardship, the court must issue such suspension, but may grant a hardship privilege, which shall be issued on a form prescribed by the commissioner.

Thus, provided that a defendant can show such “extreme hardship,” he or she may be able to operate a vehicle notwithstanding any pre-conviction suspension.

2. “Extreme Hardship” Defined

Extreme hardship is defined later in the same section:

For the purposes of this clause,”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 a member of the licensee’s household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee’s school, college or university if such travel is necessary for the completion of the educational degree or certificate.

Thus, there are exactly three circumstances under which a person may apply for a hardship license, loosely categorized here as (i) work, (ii) school, or (iii) medical. Absent any of those reasons, the hardship license simply will not apply.

3. Burden to Show Hardship on Defendant

The mere presence of one of those circumstances in a case does not necessarily mean that a hardship license will be granted. It will usually be the job of the New York DWI defense attorney to demonstrate his client’s entitlement to the license. As set forth in the statute:

The burden of proving extreme hardship shall be on the licensee who may present material and relevant evidence. A finding of extreme hardship may not be based solely upon the testimony of the licensee.

Thus, any claimant should be prepared to assemble paperwork and other evidence, including live witness testimony, to support their claim that driving is necessary to facilitate either work, school, or medical visits.

4. Timing of Hearing

The hearing must take place simultaneous to or within three days of the criminal court arraignment. Thus, time is of the essence when it comes to presenting evidence of hardship that will allow you to keep your license. Thus, if you are arrested, it is important to immediately contact an experienced New York DWI attorney to ensure that your driving rights are fought for as soon as possible. As noted in the statute:

In no event shall arraignment be adjourned or otherwise delayed more than three business days solely for the purpose of allowing the licensee to present evidence of extreme hardship. The court shall set forth upon the record, or otherwise set forth in writing, the factual basis for such finding.

5. Scope of Hardship License

Finally, the privilege is very limited. It will only allow a driver to drive to the extent that he or she is required to do so by one of the three statutory reasons. Courts have interpreted this provision very strictly, and a driver who drives outside the scope of a hardship license may face sanctions in his pending case, and even additional VTL charges:

The hardship privilege shall permit the operation of a vehicle only for travel to or from the licensee’s employment, or to or from necessary medical treatment for the licensee or a member of the licensee’s household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee’s school, college or university if such travel is necessary for the completion of the educational degree or certificate. A hardship privilege shall not be valid for the operation of a commercial motor vehicle.

The defendant “benched” the case and a trial was held without a jury before the Hon. Richard Carruthers beginning on May 3, 2005. According to the trial transcript, Wells blew through a red light and hit the vehicle in which Ms. Gubernikoff and her father were riding. Eyewitnesses stated that Wells was driving very fast at the time of the accident, completely disregarded the semaphore in the intersection, and was completely incoherent immediately after the accident. In fact, Wells’ blood alcohol content at the time he was tested shortly after the accident was between .25% and .27%, which is more than three times the legal limit.

After trial, Wells was convicted of Murder in the Second Degree under a “depraved indifference” theory and sentenced by the judge to concurrent indeterminate prison terms of from seventeen years to life. Wells appealed his conviction directly to the Supreme Court, Appellate Division, First Department, arguing that “that the evidence [was] insufficient to sustain conviction of murder in the second degree and assault in the second degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct.” See People v. Wells, 53 A.D. 3d 181 (1st Dep’t 2008). Additionally, before his appeal was decided in the intermediate appellate court, New York’s highest court, the Court of Appeals, decided People v. Feingold, 7 N.Y.3d 288 (2006), which overturned People v. Register 60 N.Y.2d 270 (1983). After Feingold, the standard for depraved indifference crimes to require courts to look at the mental state from a subjective point of view, finding guilty only where the particular defendant demonstrates “‘a willingness to act not because [he] intends harm, but because [he] simply doesn’t care whether grievous harm results or not . . . . A defendant must possess an “utter disregard for the value of human life . . . embodied in conduct that is so wanton, so deficient in a moral sense of concern, and so blameworthy as to render the actor as culpable as one’ who intends the result of his acts.” Wells v. Perez, 10 Civ. 1107 (S.D.N.Y. 2010) (Report and Recommendation of Francis IV, J.).

Wells’ conviction was upheld by the First Department, in a 2008 Opinion authored by Justice Tom. In Wells, the Appellate Division ruled that since the crime took place and the trial was held in the Register era, New York’s standard of proof necessary to support a conviction of depraved indifference murder had been met. The court set forth the standard it applied as follows:

Depraved indifference murder is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law §125.25[2]). Similarly, assault in the first degree under a depraved indifference theory is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person” (Penal Law §120.10[3]). A person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk” (Penal Law §15.05[3]). The law in effect at the time of defendant’s trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006], supra, but instead referred to an objective standard reflected by the “factual setting in which the risk creating conduct must occur” (see Register, 60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704). Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see id. at 300, 469 N.Y.S.2d 599, 457 N.E.2d 704 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).

. . .

Under Register, depraved indifference murder requires that a defendant’s act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 N.Y.2d at 274, 469 N.Y.S.2d 599, 457 N.E.2d 704). The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to “the factual setting in which the risk creating conduct must occur” (id. at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).

The court listed several factors which led to its conclusion that the Register standard had, in fact, been met in this case:

• Defendant chose to drive while heavily intoxicated;
• Defendant was traveling 50-60 mph on busy NYC streets;
• In addition to the speed, defendant drove “dangerously” as evidenced by his striking a parked car and nearly striking another before the fatal accident;
• Although “heavily intoxicated,” defendant still had the presence of mind to attempt to flee the scene; and
• Defendant had previously attended a class aimed at preventing drunk driving

Based on the application of these facts to the Register standard (“[t]he act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life”), the First Department upheld the conviction.

Six days later, however, the Court of Appeals, in People v. Jean-Baptiste, 11 N.Y.3d 539 (2008), retroactively applied Feingold to all cases pending on direct appeal “in which the defendant has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction.” Id. at 542.

Defendant then petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus. Wells v. Perez, 10 Civ. 1107 (DLC) (JCF) (S.D.N.Y. 2010). The case landed in front of the Honorable Denise L. Cote and Magistrate Judge James C. Francis IV. In his petition, arguing that his state court conviction was obtained in violation of clearly established Federal law.

In a letter recommendation report to Judge Cole, Magistrate Judge Francis wrote that under recent New York law, “a defendant’s decision to drink, made hours in advance of a later accident, is insufficient to uphold a depraved indifference conviction.” Later, Judge Francis wrote, “[t]herefore, the First Department’s holding in Wells, which upheld the petitioner’s convictions for depraved indifference crimes based on a finding of culpable mens rea at the moment he chose to begin drinking, is no longer good law.” After a lengthy discussion of the various procedural issues that mark the case, Judge Francis noted that the First Department reached the wrong result on the merits, stating, in his letter to Judge Cote that “no rational trier of fact could have convicted the petitioner of second degree murder or first degree assault under depraved indifference theories based on the evidence at trial.” Francis wrote that the evidence submitted that Wells had attended an alcohol rehabilitation training course was only relevant to his state of mind at the time he began drinking which under the properly applied Court of Appeals decisions, “is insufficient to support the conclusion that, prior to the acidence, he possessed a culpable state of mind tantamount to intent to harm.” The fact of intoxication to an extreme degree actually negated his intent: “Mr. Wells’ level of intoxication . . . would have made it extremely difficult, if not impossible, for him to comprehend the nature and consequences of his actions such that he could be found to have evinced a conscious, callous disregard for those consequences; in any case, proof that Mr. Wells possessed such a culpable mindset was not presented at trial.” Based on its analysis of these factors, among others, Judge Francis recommended that the petition be granted, but also held that a retrial of Wells would not violate double jeopardy standards.

If you have been charged with a serious offense, you need experienced counsel with knowledge of New York statutory and decisional law.

Edwards was charged under section 1192.2 (a charge based on his blowing over a .08), 1192.3 (common-law DWI, which is often proves with such outward manifestations of intoxications such as red or bloodshot eyes, slurred speech, the scent of alcohol, unsteady walking, etc.), and 1192.1 (a lesser included offense for driving under the influence, a violation not a crime).

The New York County D.A.’s office will probably not make an “offer” to Edwards of a violation on account of the fact that his breath sample was over twice the legal limit (reportedly a .16) and the fact that Edwards appears to have a criminal past.

An offer that the D.A.’s office could make in such a case would be a plea to the charge of 1192.2, a hefty fine, a 6 month license revocation, the STOP DWI program, and perhaps a period of community service. Also, pursuant to recently-enacted Leandra’s Law, Edwards, if convicted, would be required to install an ignition interlock device on every vehicle he drives. The interlock device would require him to provide a clean blow to start the car and also periodically throughout the drive to maintain operation.

The challenges his lawyers face will be daunting, but the stop based on tinted windows only will probably be questioned as will the operability and accuracy of the machine used to collect his breath sample. While these detail-oriented cases are often marked by intricacies that a skilled lawyer may play upon to turn the tide, the best strategy may be to negotiate a favorable plea with the D.A.’s office.

If you have any questions about the DWI laws, you should contact the experienced former Manhattan Assistant District Attorneys at the Law Office of Matthew Galluzzo.

§ 1192. Operating a motor vehicle while under the influence of alcohol or drugs.

1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.

(b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle.

3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.

4-a. Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.

5. Commercial motor vehicles: per se – level I. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a chemical analysis of such person’s blood, breath, urine, or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article, indicates that such operator has .02 of one per centum or more but less than .04 of one per centum by weight of alcohol in such operator’s blood.
6. Commercial motor vehicles; per se – level II. Notwithstanding the provisions of section eleven hundred ninety-five of this article, no person shall operate a commercial motor vehicle while such person has more than .06 of one per centum but less than .08 of one per centum by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section.
7. Where applicable. The provisions of this section shall apply upon public highways, private roads open to motor vehicle traffic and any other parking lot. For the purposes of this section “parking lot” shall mean any area or areas of private property, including a driveway, near or contiguous to and provided in connection with premises and used as a means of access to and egress from a public highway to such premises and having a capacity for the parking of four or more motor vehicles. The provisions of this section shall not apply to any area or areas of private property comprising all or part of property on which is situated a one or two family residence.
8. Effect of prior out-of-state conviction. A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section. Provided, however, that if such conduct, had it occurred in this state, would have constituted a violation of any provisions of this section which are not misdemeanor or felony offenses, then such conduct shall be deemed to be a prior conviction of a violation of subdivision one of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article.

8-a. Effect of prior finding of having consumed alcohol. A prior finding that a person under the age of twenty-one has operated a motor vehicle after having consumed alcohol pursuant to section eleven hundred ninety-four-a of this article shall have the same effect as a prior conviction of a violation of subdivision one of this section solely for the purpose of determining the length of any license suspension or revocation required to be imposed under any provision of this article, provided that the subsequent offense is committed prior to the expiration of the retention period for such prior offense or offenses set forth in paragraph (k) of subdivision one of section two hundred one of this chapter.

9. Conviction of a different charge. A driver may be convicted of a violation of subdivision one, two or three of this section, notwithstanding that the charge laid before the court alleged a violation of subdivision two or three of this section, and regardless of whether or not such conviction is based on a plea of guilty.
10. Plea bargain limitations.

(a) (i) In any case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section, other than subdivision five or six, and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.

(ii) In any case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section, no plea of guilty to subdivision one of this section shall be accepted by the court unless such plea includes as a condition thereof the requirement that the defendant attend and complete the alcohol and drug rehabilitation program established pursuant to section eleven hundred ninety-six of this article, including any assessment and treatment required thereby; provided, however, that such requirement may be waived by the court upon application of the district attorney or the defendant demonstrating that the defendant, as a condition of the plea, has been required to enter into and complete an alcohol or drug treatment program prescribed pursuant to an alcohol or substance abuse screening or assessment conducted pursuant to section eleven hundred ninety-eight-a of this article or for other good cause shown. The provisions of this subparagraph shall apply, notwithstanding any bars to participation in the alcohol and drug rehabilitation program set forth in section eleven hundred ninety-six of this article; provided, however, that nothing in this paragraph shall authorize the issuance of a conditional license unless otherwise authorized by law.

(iii) In any case wherein the charge laid before the court alleges a violation of subdivision one of this section and the operator was under the age of twenty-one at the time of such violation, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of such subdivision; provided, however, such charge may instead be satisfied as provided in paragraph (c) of this subdivision, and, provided further that, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of subdivision one of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.

(b) In any case wherein the charge laid before the court alleges a violation of subdivision one or six of this section while operating a commercial motor vehicle, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney upon reviewing the available evidence determines that the charge of a violation of this section is not warranted, he may consent, and the court may allow, a disposition by plea of guilty to another charge is satisfaction of such charge.

(c) Except as provided in paragraph (b) of this subdivision, in any case wherein the charge laid before the court alleges a violation of subdivision one of this section by a person who was under the age of twenty-one at the time of commission of the offense, the court, with the consent of both parties, may allow the satisfaction of such charge by the defendant’s agreement to be subject to action by the commissioner pursuant to section eleven hundred ninety-four-a of this article. In any such case, the defendant shall waive the right to a hearing under section eleven hundred ninety-four-a of this article and such waiver shall have the same force and effect as a finding of a violation of section eleven hundred ninety-two-a of this article entered after a hearing conducted pursuant to such section eleven hundred ninety-four-a. The defendant shall execute such waiver in open court, and, if represented by counsel, in the presence of his attorney, on a form to be provided by the commissioner, which shall be forwarded by the court to the commissioner within ninety-six hours. To be valid, such form shall, at a minimum, contain clear and conspicuous language advising the defendant that a duly executed waiver: (i) has the same force and effect as a guilty finding following a hearing pursuant to section eleven hundred ninety-four-a of this article; (ii) shall subject the defendant to the imposition of sanctions pursuant to such section eleven hundred ninety-four-a; and (iii) may subject the defendant to increased sanctions upon a subsequent violation of this section or section eleven hundred ninety-two-a of this article. Upon receipt of a duly executed waiver pursuant to this paragraph, the commissioner shall take such administrative action and impose such sanctions as may be required by section eleven hundred ninety-four-a of this article.

(d) In any case wherein the charge laid before the court alleges a violation of subdivision two-a of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of subdivision two, two-a or three of this section, and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized; provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge of a violation of this section is not warranted, such district attorney may consent and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge, provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition. Provided, further, however, that no such plea shall be accepted by the court unless such plea includes as a condition thereof the requirement that the defendant attend and complete the alcohol and drug rehabilitation program established pursuant to section eleven hundred ninety-six of this article, including any assessment and treatment required thereby; provided, however, that such requirement may be waived by the court upon application of the district attorney or the defendant demonstrating that the defendant, as a condition of the plea, has been required to enter into and complete an alcohol or drug treatment program prescribed pursuant to an alcohol or substance abuse screening or assessment conducted pursuant to section eleven hundred ninety-eight-a of this article or for other good cause shown. The provisions of this paragraph shall apply, notwithstanding any bars to participation in the alcohol and drug rehabilitation program set forth in section eleven hundred ninety-six of this article; provided, however, that nothing in this paragraph shall authorize the issuance of a conditional license unless otherwise authorized by law.

11. No person other than an operator of a commercial motor vehicle may be charged with or convicted of a violation of subdivision five or six of this section.
12. Driving while intoxicated or while ability impaired by drugs–serious physical injury or death or child in the vehicle.

(a) In every case where a person is charged with a violation of subdivision two, two-a, three, four or four-a of this section, the law enforcement officer alleging such charge shall make a clear notation in the “Description of Violation” section of a simplified traffic information (i) if, arising out of the same incident, someone other than the person charged was killed or suffered serious physical injury as defined in section 10.00 of the penal law; such notation shall be in the form of a “D” if someone other than the person charged was killed and such notation shall be in the form of a “S.P.I.” if someone other than the person charged suffered serious physical injury; and (ii) if a child aged fifteen years or less was present in the vehicle of the person charged with a violation of subdivision two, two-a, three, four or four-a of this section; such notation shall be in the form of “C.I.V.”. Provided, however, that the failure to make such notations shall in no way affect a charge for a violation of subdivision two, two-a, three, four or four-a of this section.

(b) Where a law enforcement officer alleges a violation of paragraph (b) of subdivision two-a of this section and the operator of the vehicle is a parent, guardian, or custodian of, or other person legally responsible for, a child aged fifteen years or less who is a passenger in such vehicle, then the officer shall report or cause a report to be made, if applicable, in accordance with title six of article six of the social services law.

• The New York State Court of Appeals rendered a decision in People v. Ballman, 2010 N.Y. Slip Op. 04870, (June 10, 2010). The issue, and resolution was recorded as follows: “This appeal raises the issue whether Vehicle and Traffic Law § 1192 (8) allows an out-of-state conviction occurring prior to November 1, 2006 to be considered for purposes of elevating a charge of driving while intoxicated from a misdemeanor to a felony. We hold that it does not.” Click here for the full text of the decision.
• Binghamton Assemblywoman Donna Lupardo urged the New York State Legislature to support her bill which would help fund Leandra’s Law by redirecting surcharge money from the General Fund to STOP-DWI Programs. According to www.wbng.com, the bill proposes that the STOP-DWI program would monitor the ignition interlock device requirement aspect of Leandra’s Law, which will take effect in August. Some New York counties are already expressing implementation-funding concerns.
• An example of a case where the first prong of Leandra’s Law, which created enhanced penalties for DWI with a child in the car, was probably charged is this Long Island arrest involving a woman who was pulled over with a baby in the vehicle.
• In Long Island, one allegedly drunk driver crashed into another allegedly drunk driver.
• Several people were charged with DWI at a Dave Matthews Band concert at the Saratoga Performing Arts Center.

If you have been arrested or for more information on DWI, seek the advice of experienced DWI attorneys in the Greater New York City area.

• Sen. Chuck Schumer announces intent to push new legislation to fund research into new technology to prevent drivers from taking the wheel while intoxicated. According to the June 2, 2010 edition of the Poughkeepsie Journal, “The money will be used to help car companies develop technology that will sense alcohol on the breath or sweat of drivers and automatically shut the car’s engine, Schumer said.”
• The Manhattan DA’s office announced its expansion of the Vehicular Crimes Unit. According to Empirenews.net, the unit “will focus on felony and misdemeanor cases involving traffic fatalities, traffic assaults, reckless driving, and other road violations. Prosecutors designated to the unit have been, and will continue to be, trained to address the complex issues specific to vehicular crime and crash reconstruction, as well as comprehensive legal instruction and in-depth training in the multitude of laws involving New York vehicular crime.” This development is in keeping with D.A. Vance’s earlier promises on the campaign trail.
• Robert Kennedy, Jr.’s wife was arrested for DWI in Westchester County.
• A man in Orange County was arrested for DWI after driving to a village police station to report a stray dog.
• A man who had been involved in an earlier DWI-related death was arrested himself for DWI in Hempstead.
• “Real Housewife” Sonja Morgan arrested for DWI in Southhampton.

If you have been arrested for or charged with DWI in New York City or the surrounding counties, you should contact experienced DWI counsel.

In 1990, the US Supreme Court decided the case of Michigan Dept. of State Police v. Sitz 496 US 444 (1990), which examined the constitutionality of a police checkpoint that operated for 75 minutes, stopped 126 vehicles and only arrested one motorist for drunken driving. The court in that case established a balancing test, derived in part from Brown v. Texas, to analyze the constitutionality of such checkpoints: the court considered (1) the state’s interest in preventing drunken driving; (2) the extent to which the program could be reasonably said to advance that interest, and (3) the degree of intrusion on motorists. Due to the fact that states have a significant interest in preventing drunk driving to promote public safety, sobriety checkpoints are generally held to be constitutional so long as they are conducted according to a reasonable, predetermined plan of stopping vehicles (eg stopping every vehicle; every other vehicle; every 5th, etc). A checkpoint is not constitutionally permissible if it leaves discretion in the hands of individual officers to pick and choose which cars are stopped in the absence of some other indication of probable cause that the driver is drunk.

In a recent New York case, People v. Castimer (2008NY074229; decided November 10, 2009; Published in the New York Law Journal 11/16/2009), Manhattan police officers had set up a sobriety checkpoint on East 61st Street between First and Second Avenues, near the approach to the Queensboro Bridge on Saturday, October 4, 2008. “The checkpoint, meant to detect and deter intoxicated drivers, was mounted as part of Operation Cold Sober, an initiative of the Chief of Patrol of the New York City Police Department. In order to create the checkpoint, police parked patrol cars and arranged orange traffic cones along the roadway, ultimately causing all traffic to narrow into a single lane. Approaching vehicles were alerted to the existence of the roadblock by flares and flashing turret lights.” (Castimer)

Before the commencement of the checkpoint, a sergeant had met with his officers “to establish the protocol for that day’s checkpoint. During the operation of the checkpoint, every car was to be stopped, with the exception of livery vehicles and taxicabs. A uniformed officer was assigned to flag down each approaching passenger car. After a brief conversation in which the motorist was informed of the reason for the checkpoint, those drivers suspected of being intoxicated or impaired were to be directed into a “chute”-a makeshift traffic lane set up at the side of the road in order for the police to safely conduct further investigation.” (Castimer)

The defendant in this case, as he drove through the checkpoint, was stopped by a police officer. When the officer approached the defendant’s vehicle to inspect his driver’s license, the officer smelled alcohol and directed the defendant to the “chute.” A breathalizer test later confirmed that the defendant was intoxicated. The defendant also admitted to the officers he had been drinking.

The defendant did not dispute his intoxication in this case; his argument was, rather, that he was unlawfully seized because the checkpoint was unconstitutional. Castimer’s argument was based on the fact that the sergeant “testified that when traffic became heavy enough to back up onto First Avenue, his officers were authorized to let cars through without stopping them, in order to avoid a jam.” (Castimer) It was the defense’s contention that “in allowing for traffic-based deviations from the protocol to stop every passenger car, the otherwise-uniform plan here was transformed into an arbitrary and unconstitutional one.” (Castimer)

The court, however, found several flaws in the defense’s argument in this case. Specifically, the court found, as a preliminary matter, that, under this checkpoint plan, when traffic became heavy, the officers were not authorized “to conduct arbitrary stops of whatever cars they might capriciously choose to target.” Instead, under the plan, “when necessary to avoid gridlock, the police were empowered either to allow all cars through until traffic cleared, or to stop, say, every second, or third, or fourth, car, rather than every one. Neither option violated the constitutional requirement that the procedure ‘afford little discretion to operating personnel’ (Scott, 63 NY2d at 526)” (Castimer). Second, there was no evidence that suggested that on the morning the defendant was stopped, traffic conditions ever actually required the police to deviate from their lawful plan to stop every car. Finally, the court attacked the defendant’s argument based on the principle that “‘Fourth Amendment rights are personal’ (People v. Wesley, 73 NY2d 351, 359 [1989]) and, ‘like some other constitutional rights, may not be vicariously asserted’ (Alderman v. United States, 394 US 165, 174 [1969] [citations omitted]; accord People v. Rodriguez, 69 NY2d 159, 163 [1987]). That is to say, the defendant cannot assert a defense based on the possible fourth amendment violations of other motorists. So long as the defendant’s own fourth amendment rights were protected throughout his stop, the arrest was constitutional and cannot be struck down on the basis of a potential violations of another motorist’s rights at a different point in time.

So long as drunk driving remains a significant safety concern, sobriety checkpoints like that in Castimer may become commonplace. Drivers and practitioners in the field should therefore beware of the holding in Castimer, as courts are likely to continue to rule in favor of police departments – and against individuals’ fourth amendment rights – when it comes to the constitutionality of such checkpoints.

If you have been arrested for a DWI, or other criminal offense, be sure toseek the advice of experienced defense counsel.

Section 15 of the new law states that Leandra’s Law will take effect on December 18, 2009 (with certain exceptions noted below):

This act shall take effect on the thirtieth day after it shall have become a law; provided that section five of this act and the amendments made to subparagraph (ii) of paragraph (b) of subdivision 1 of section 1193 of the vehicle and traffic law made by section three of this act, except for those amendments concerning a violation of subdivision 2-a of section 1192 of the vehicle and traffic law, shall take effect on the two hundred seventieth day after it shall have become a law; provided, further, that this act shall not apply to any offense committed before the date of enactment, and that section five of this act shall apply only to individuals sentenced on or after the date such section becomes effective; provided, further, that rules and regulations may be issued in accordance with such sections prior to the effective date; provided, further, that the amendments to section 1198 of the vehicle and traffic law made by sections five and five-a of this act shall not affect the repeal of such section and shall be deemed repealed therewith.

As noted in Manhattan Democratic Senator Sheldon Silver’s press release: “The legislation will make it a felony to drive with a passenger who is a child 15 or under, while intoxicated with a blood alcohol content of .08, subjecting the defendant to a possible prison sentence of up to 1-1/3-to-4years for a first offense. This is the toughest sentence for any first time DWI offense with a child passenger in the nation. In addition, this legislation includes a number of other protections that recognize the seriousness of driving with children while driving intoxicated. Interlock devices prevent intoxicated drivers from starting vehicles. If a convicted driver tries to bypass or tamper with the interlock, or get another person to use the interlock, under this new law he or she commits a crime. Under this proposal, courts will be required to sentence DWI offenders to use ignition interlocks.”

Thus, the passage of this legislation

• Enhances a first offense to felony-level where a child is a passenger in the vehicle at the time of the commission of the DWI offense;
• Requires ignition interlocks on all people who have been convicted of misdemeanor and felony DWI

There are Bill contains several sections, each of which contains a modification to some aspect of the pre-existing DWI laws. These are as follows:

Sections 1 and 2: ADDING “WITH A CHILD 15 YEARS OF AGE OR LESS” TO AGGRAVATED DWI OFFENSE DEFINITION

Introduced in 2006, the “Aggravated DWI” provision initially read as follows:

1192(2-a): Aggravated driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of [VTL section 1194].

The first section of Leandra’s Law adds a second violation to the provision by dividing itself up into two subsections, each defining its own offense.

2-a. Aggravated driving while intoxicated[; per se]. (A) PER SE. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article. (B) WITH A CHILD. NO PERSON SHALL OPERATE A MOTOR VEHICLE IN VIOLATION OF SUBDIVISION TWO, THREE, FOUR OR FOUR-A OF THIS SECTION WHILE A CHILD WHO IS FIFTEEN YEARS OF AGE OR LESS IS A PASSENGER IN SUCH MOTOR VEHICLE.

Section 2 amends subdivision 12 of section 1192 of the vehicle and traffic law, to require that a law enforcement officer designate the subsection of the new aggravated DWI law in the case paperwork:

12. Driving while intoxicated or while ability impaired by drugs–serious physical injury or death OR CHILD IN THE VEHICLE. (A) In every case where a person is charged with a violation of subdivision two, two-a, three, four or four-a of this section, the law enforcement officer alleging such charge shall make a clear notation in the “Description of Violation” section of a simplified traffic information (I) if, arising out of the same incident, someone other than the person charged was killed or suffered serious physical injury as defined in section 10.00 of the penal law; such notation shall be in the form of a “D” if someone other than the person charged was killed and such notation shall be in the form of a “S.P.I.” if someone other than the person charged suffered serious physical injury; provided AND (II) IF A CHILD AGED FIFTEEN YEARS OR LESS WAS PRESENT IN THE VEHICLE OF THE PERSON CHARGED WITH A VIOLATION OF SUBDIVISION TWO, TWO-A, THREE, FOUR OR FOUR-A OF THIS SECTION; SUCH NOTATION SHALL BE IN THE FORM OF “C.I.V.”. PROVIDED, however, that the failure to make such [notation] NOTATIONS shall in no way affect a charge for a violation of subdivision two, two-a, three, four or four-a of this section. (B) WHERE A LAW ENFORCEMENT OFFICER ALLEGES A VIOLATION OF PARAGRAPH (B) OF SUBDIVISION TWO-A OF THIS SECTION AND THE OPERATOR OF THE VEHICLE IS A PARENT, GUARDIAN, OR CUSTODIAN OF, OR OTHER PERSON LEGALLY RESPONSIBLE FOR, A CHILD AGED FIFTEEN YEARS OR LESS WHO IS A PASSENGER IN SUCH VEHICLE, THEN THE OFFICER SHALL REPORT OR CAUSE A REPORT TO BE MADE, IF APPLICABLE, IN ACCORDANCE WITH TITLE SIX OF ARTICLE SIX OF THE SOCIAL SERVICES LAW.

Section 3; REQUIRING INSTALLATION OF IGNITION INTERLOCK DEVICE NOW EXPANDED TO APPLY TO ALL PEOPLE CONVICTED OF ANY MISDEMEANOR OR FELONY DWI

Section 3 of the Bill makes clear that the installation of an ignition interlock device is still required for those of conviction of Aggravated DWI per se (1192[2-a](a)). But it also expands the requirement of the ignition interlock device to all those persons convicted of any misdemeanor DWI, including the DWI per se (1192[2]), common-law DWI (1192[3]), driving while ability impaired by drugs (1192[4]) and driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (1192[4-a]). In addition, this section requires the installation of the ignition interlock device for those convicted of any DWI felony, including the repeat-offender provisions of 1193(1)(c) and, of course, the new aggravated DWI offense (1192[2][b]).

Section 3 of the bill accomplishes these enhancements by modifying VTL 1193(b) and (c) as follows:

1193 (b) Driving while intoxicated or while ability impaired by drugs or while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs; aggravated driving while intoxicated; misdemeanor offenses. (I) A violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of this article shall be a misdemeanor and shall be punishable by a fine of not less than five hundred dollars nor more than one thousand dollars, or by imprisonment in a penitentiary or county jail for not more than one year, or by both such fine and imprisonment. A violation of PARAGRAPH (A) OF subdivision two-a of section eleven hundred ninety-two of this article shall be a misdemeanor and shall be punishable by a fine of not less than one thousand dollars nor more than two thousand five hundred dollars or by imprisonment in a penitentiary or county jail for not more than one year, or by both such fine and imprisonment. (II) In addition to the imposition of any fine or period of imprisonment set forth in this paragraph, the court shall require that any person who has been convicted of a violation of subdivision two-a of section eleven hundred ninety-two of this article and who is sentenced to a period of probation, to install and maintain, as a condition of such probation and in accordance with section eleven hundred ninety-eight of this article, a functioning ignition interlock device in any vehicle owned or operated by the person during the term of such probation; providedTHE COURT SHALL ALSO SENTENCE SUCH PERSON CONVICTED OF A VIOLATION OF SUBDIVISION TWO, TWO-A OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE TO A PERIOD OF PROBATION OR CONDITIONAL DISCHARGE, AS A CONDITION OF WHICH IT SHALL ORDER SUCH PERSON TO INSTALL AND MAINTAIN, IN ACCORDANCE WITH THE PROVISIONS OF SECTION ELEVEN HUNDRED NINETY-EIGHT OF THIS ARTICLE, AN IGNITION INTER-LOCK DEVICE IN ANY MOTOR VEHICLE OWNED OR OPERATED BY SUCH PERSON DURING THE TERM OF SUCH PROBATION OR CONDITIONAL DISCHARGE IMPOSED FOR SUCH VIOLATION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AND IN NO EVENT FOR LESS THAN SIX MONTHS. PROVIDED, however, the court may not authorize the operation of a motor vehicle by any person whose license or privilege to operate a motor vehicle has been revoked pursuant to the provisions of this section. (c) Felony offenses. (i) A person who operates a vehicle (A) in violation of subdivision two, two-a, three, four or four-a of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, two-a, three, four or four-a of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 and aggravated vehicular assault as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 and aggravated vehicular homicide as defined in section 125.14 of such law, within the preceding ten years, OR (B) IN VIOLATION OF PARAGRAPH (B) OF SUBDIVISION TWO-A OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE shall be guilty of a class E felony, and shall be punished by a fine of not less than one thousand dollars nor more than five thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (ii) A person who operates a vehicle in violation of subdivision two, two-a, three, four or four-a of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, two-a, three, four or four-a of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 and aggravated vehicular assault as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 and aggravated vehicular homicide as defined in section 125.14 of such law, twice within the preceding ten years, shall be guilty of a class D felony, and shall be punished by a fine of not less than two thousand dollars nor more than ten thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. (III) IN ADDITION TO THE IMPOSITION OF ANY FINE OR PERIOD OF IMPRISONMENT SET FORTH IN THIS PARAGRAPH, THE COURT SHALL ALSO SENTENCE SUCH PERSON CONVICTED OF A VIOLATION OF SUBDIVISION TWO, TWO-A OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE TO A PERIOD OF PROBATION OR CONDITIONAL DISCHARGE, AS A CONDITION OF WHICH IT SHALL ORDER SUCH PERSON TO INSTALL AND MAINTAIN, IN ACCORDANCE WITH THE PROVISIONS OF SECTION ELEVEN HUNDRED NINETY-EIGHT OF THIS ARTICLE, AN IGNITION INTERLOCK DEVICE IN ANY MOTOR VEHICLE OWNED OR OPERATED BY SUCH PERSON DURING THE TERM OF SUCH PROBATION OR CONDITIONAL DISCHARGE IMPOSED FOR SUCH VIOLATION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AND IN NO EVENT FOR A PERIOD OF LESS THAN SIX MONTHS. PROVIDED, HOWEVER, THE COURT MAY NOT AUTHORIZE THE OPERATION OF A MOTOR VEHICLE BY ANY PERSON WHOSE LICENSE OR PRIVILEGE TO OPERATE A MOTOR VEHICLE HAS BEEN REVOKED PURSUANT TO THE PROVISIONS OF THIS SECTION.

Section 4: REQUIRING THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES TO PROMULGATE NEW IGNITION-INTERLOCK-DEVICE-MONITORING REGULATIONS THAT INDIVIDUAL COUNTIES MAY ELECT TO ADOPT

Now that each and every person who has been convicted of criminal DWI will be required to install the ignition interlock device, the Senate deigned that rules governing monitoring these installations will be necessary:

9 (G) THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES SHALL PROMULGATE REGULATIONS GOVERNING THE MONITORING OF COMPLIANCE BY PERSONS ORDERED TO INSTALL AND MAINTAIN IGNITION INTERLOCK DEVICES TO PROVIDE STANDARDS FOR MONITORING BY DEPARTMENTS OF PROBATION, AND OPTIONS FOR MONITORING OF COMPLIANCE BY SUCH PERSONS, THAT COUNTIES MAY ADOPT AS AN ALTERNATIVE TO MONITORING BY A DEPARTMENT OF PROBATION.

It should be noted that these new regulations will not be obligatory, but rather may be adopted by each New York county as a replacement to its current monitoring scheme.

Sections 5 and 6: MODIFYING VTL 1198 TO FALL IN LINE WITH THE NEW IGNITION INTERLOCK DEVICE REQUIREMENTS

The requirement of the installation of ignition interlock devices pre-dated Leandra’s Law, as it applied to those people convicted of Aggravated DWI (per se) under VTL 1192(2-a). VTL 1198 governed the details concerning those requirements and thus needed to be amended so as to complement the core changes to the DWI laws in this state. Thus, VTL 1198 was modified as follows:

1. Applicability. The provisions of this section shall apply throughout the state to each person required or otherwise ordered by a court as a condition of probation OR CONDITIONAL DISCHARGE to install and operate an ignition interlock device in any vehicle which he or she owns or operates. 2. Requirements. (a) In addition to any other penalties prescribed by law, the court maySHALL require that any person who has been convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of this article, or any crime defined by thi s chapter or the penal law of which an alcohol-related violation of any provision of section eleven hundred ninety-two of this article is an essential element, and who has been sentenced to a period of probation,TO install and maintain, as a condition of probation OR CONDITIONAL DISCHARGE, a functioning ignition interlock device in accordance with the provisions of this section AND, AS APPLICABLE, IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISIONS ONE AND ONE-A OF SECTION ELEVEN HUNDRED NINETY-THREE OF THIS ARTICLE; provided, however, the court may not authorize the operation of a motor vehicle by any person whose license or privilege to operate a motor vehicle has been revoked except as provided herein. FOR ANY SUCH INDIVIDUAL SUBJECT TO A SENTENCE OF PROBATION, INSTALLATION AND MAINTENANCE OF SUCH IGNITION INTERLOCK DEVICE SHALL BE A CONDITION OF PROBATION. (b) Nothing contained in this section shall prohibit a court, upon application by a probation department, from modifying the conditions of probation of any person convicted of any violation set forth in paragraph (a) of this subdivision prior to the effective date of this section, to require the installation and maintenance of a functioning ignition interlock device, and such person shall thereafter be subject to the provisions of this section. (c) Nothing contained in this section shall authorize a court to sentence any person to a period of probation OR CONDITIONAL DISCHARGE for the purpose of subjecting such person to the provisions of this section, unless such person would have otherwise been so eligible for a sentence of probation OR CONDITIONAL DISCHARGE. 3. Conditions. (a) Notwithstanding any other provision of law, the commissioner may grant a post-revocation conditional license, as set forth in paragraph (b) of this subdivision, to a person who has been convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of this article and who has been sentenced to a period of probation OR CONDITIONAL DISCHARGE, provided the person has satisfied the minimum period of license revocation established by law and the commissioner has been notified that such person may operate only a motor vehicle equipped with a functioning ignition interlock device. No such request shall be made nor shall such a license be granted, however, if such person has been found by a court to have committed a violation of section five hundred eleven of this chapter during the license revocation period or deemed by a court to have violated any condition of probation OR CONDITIONAL DISCHARGE set forth by the court relating to the operation of a motor vehicle or the consumption of alcohol. In exercising discretion relating to the issuance of a post-revocation conditional license pursuant to this subdivision, the commissioner shall not deny such issuance based solely upon the number of convictions for violations of any subdivision of section eleven hundred ninety-two of this article committed by such person within the ten years prior to application for such license. Upon the termination of the period of probation OR CONDITIONAL DISCHARGE set by the court, the person may apply to the commissioner for restoration of a license or privilege to operate a motor vehicle in accordance with this chapter. (b) Notwithstanding any inconsistent provision of this chapter, a post-revocation conditional license granted pursuant to paragraph (a) of this subdivision shall be valid only for use by the holder thereof, (1) enroute to and from the holder’s place of employment, (2) if the holder’s employment requires the operation of a motor vehicle then during the hours thereof, (3) enroute to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training, (4) to and from court ordered probation activities, (5) to and from a motor vehicle office for the transaction of business relating to such license, (6) for a three hour consecutive daytime period, chosen by the department, on a day during which the participant is not engaged in usual employment or vocation, (7) enroute to and from a medical examination or treatment as part of a necessary medical treatment for such participant or member of the participant’s household, as evidenced by a written statement to that effect from a licensed medical practitioner, (8) enroute to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program and at which participant’s attendance is required, and (9) enroute to and from a place, including a school, at which a child or children of the participant are cared for on a regular basis and which is necessary for the participant to maintain such participant’s employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training. (c) The post-revocation conditional license described in this subdivision may be revoked by the commissioner for sufficient cause including but not limited to, failure to comply with the terms of the condition of probation OR CONDITIONAL DISCHARGE set forth by the court, conviction of any traffic offense other than one involving parking, stopping or standing or conviction of any alcohol or drug related offense, misdemeanor or felony OR FAILURE TO INSTALL OR MAINTAIN A COURT ORDERED IGNITION INTERLOCK DEVICE. (d) Nothing contained herein shall prohibit the court from requiring, as a condition of probation OR CONDITIONAL DISCHARGE, the installation of a functioning ignition interlock device in any vehicle owned or operated by a person sentenced for a violation of subdivision two, two-a, or three of section eleven hundred ninety-two of this chapter, or any crime defined by this chapter or the penal law of which an alcohol-related violation of any provision of section eleven hundred ninety-two of this chapter is an essential element, if the court in its discretion, determines that such a condition is necessary to ensure the public safety. Imposition of an ignition interlock condition shall in no way limit the effect of any period of license suspension or revocation set forth by the commissioner or the court (e) Nothing contained herein shall prevent the court from applying any other conditions of probation OR CONDITIONAL DISCHARGE allowed by law, including treatment for alcohol or drug abuse, restitution and community service. (f) The commissioner shall note on the operator’s record of any person restricted pursuant to this section that, in addition to any other restrictions, conditions or limitations, such person may operate only a motor vehicle equipped with an ignition interlock device. 4. Proof of compliance and recording of condition. (a) If the court imposedFOLLOWING IMPOSITION BY THE COURT OF the use of an ignition interlock device as a condition of probation OR CONDITIONAL DISCHARGE it shall require the person to provide proof of compliance with this section to the court and the probation department where such person is under probation OR CONDITIONAL DISCHARGE supervision. If the person fails to provide for such proof of installation, absent a finding by the court of good cause for that failure which is entered in the record, the court may revoke, modify, or terminate the person’s sentence of probation OR CONDITIONAL DISCHARGE as provided under law. (b) When a court imposes the condition specified in subdivision one of this section, the court shall notify the commissioner in such manner as the commissioner may prescribe, and the commissioner shall note such condition on the operating record of the person subject to such conditions. (a) [sic] The cost of installing and maintaining the ignition interlock device shall be borne by the person subject to such condition UNLESS THE COURT DETERMINES SUCH PERSON IS FINANCIALLY UNABLE TO AFFORD SUCH COST WHEREUPON SUCH COST MAY BE IMPOSED PURSUANT TO A PAYMENT PLAN OR WAIVED. IN THE EVENT OF SUCH WAIVER, THE COST OF THE DEVICE SHALL BE BORNE IN ACCORDANCE WITH REGULATIONS ISSUED UNDER PARAGRAPH (G) OF SUB DIVISION ONE OF SECTION ELEVEN HUNDRED NINETY-THREE OF THIS ARTICLE OR PURSUANT TO SUCH OTHER AGREEMENT AS MAY BE ENTERED INTO FOR PROVISION OF THE DEVICE. Such cost shall be considered a fine for the purposes of subdivision five of section 420.10 of the criminal procedure law. Such cost shall not replace, but shall instead be in addition to, any fines, surcharges, or other costs imposed pursuant to this chapter or other applicable laws.

Here are some of the highlights of VTL 1198:

• Reiterates VTL 1193’s requirement of the installation of ignition interlock devices for all those convicted of misdemeanor or felony-level DWI;
• Governs the conditions under which a conditional post-revocation license may be granted;
• Sets forth the proof of installation requirements;
• Introduces a new provision providing for a payment plan for, or waiving the costs of the installation of the ignition interlock device for people who are financially unable to afford such cost.

Section 5-a of the bill updates the provisions governing use of employer vehicles for those required to install the ignition interlock device, and clarifies the provision setting forth the class A misdemeanor of Circumvention of an ignition interlock device:

8. Employer vehicle. Notwithstanding the provisions of subdivision one AND PARAGRAPH (D) OF SUBDIVISION NINE of this section, if a person is required to operate a motor vehicle owned by said person’s employer in the course and scope of his or her employment, the person may operate that vehicle without installation of an approved ignition interlock device only in the course and scope of such employment and only if the employer has been notified that the person’s driving privilege has been restricted under the provisions of this article or the penal law and the person whose privilege has been so restricted has provided the court and probation department with written documentation indicating the employer has knowledge of the restriction imposed and has granted permission for the person to operate the employer’s vehicle without the device only for business purposes. The person shall notify the court and the probation department of his or her intention to so operate the employer’s vehicle. A motor vehicle owned by a business entity which business entity is all or partly owned or controlled by a person otherwise subject to the provisions of this article or the penal law is not a motor vehicle owned by the employer for purposes of the exemption provided in this subdivision. The provisions of this subdivision shall apply only to the operation of such vehicle in the scope of such employment. 9. Circumvention of interlock device. (a) No person whose driving privilege is restricted pursuant to this article 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. (b) 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. (c) No person shall tamper with or circumvent an otherwise operable ignition interlock device. (d) NO PERSON SUBJECT TO A COURT ORDERED IGNITION INTERLOCK DEVICE SHALL OPERATE A MOTOR VEHICLE WITHOUT SUCH DEVICE. (E) In addition to any other provisions of law, any person convicted of a violation of paragraph (a), (b) [or], (c), OR (D) of this subdivision shall be guilty of a CLASS A misdemeanor.

Finally, section 6 of the bill brings the post-arraignment mandatory screening assessment provisions of VTL 1198-a in line with the new DWI provisions:

2. Procedure. (a) Mandatory screening; when authorized. Upon the arraignment of, or at the discretion of the court, prior to the sentencing of any person who (i) at arraignment is charged with or prior to sentencing convicted of a first violation of operating a motor vehicle in violation of subdivision one, two or three OR PARAGRAPH (B) OF SUBDIVISION TWO-A of section eleven hundred ninety-two of this article while such person has less than .15 of one per centum by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article, or in violation of subdivision four of such section eleven hundred ninety-two, or (ii) has refused to submit to a chemical test pursuant to section eleven hundred ninety-four of this article, the court shall order such person to submit to screening for alcohol or substance abuse and dependency using a standardized written screening instrument developed by the office of alcoholism and substance abuse services, to be administered by an alcohol or substance abuse professional. (b) Mandatory assessment; when authorized. The court shall order a defendant to undergo a formal alcohol or substance abuse and dependency assessment by an alcohol or substance abuse professional or a licensed agency: (i) when the screening required by paragraph (a) of this subdivision indicates that a defendant is abusing or dependent upon alcohol or drugs; (ii) following the arraignment of any person charged with or, at the discretion of the court, prior to the sentencing of any person convicted of a violation of subdivision one, two, three, four or four-a of section eleven hundred ninety-two of this article after having been convicted of a violation of any subdivision of section eleven hundred ninety-two of this article or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 of the penal law or of aggravated vehicular assault, as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 of the penal law or of aggravated vehicular homicide, as defined in section125.14 of such law within the preceding five years or after having been convicted of a violation of any subdivision of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 of the penal law or of aggravated vehicular assault, as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 of the penal law or of aggravated vehicular homicide, as defined in section 125.14 of such law, two or more times within the preceding ten years; or (iii) following the arraignment of any person charged with or, at the discretion of the court, prior to the sentencing of any person convicted of operating a motor vehicle in violation of subdivision two or three OR PARAGRAPH (B) OF SUBDIVISION TWO-A of section eleven hundred ninety-two of this article while such person has .15 of one per centum or more by weight of alcohol in the person’s blood as shown by a chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article or in violation of PARAGRAPH (A) OF subdivision two-a of section eleven hundred ninety-two of this article. (c) Mandatory assessment; procedure. The assessment ordered by a court pursuant to this section shall be performed by an alcohol or substance abuse professional or a licensed agency which shall forward the results, in writing, to the court and to the defendant or his or her counsel within thirty days of the date of such order.

Sections 7-10: MODIFYING THE PENAL LAW PROVISIONS CONCERNING VEHICULAR ASSAULT, MANSLAUGHTER AND HOMICIDE

The bill provides an additional “bump-up” subsection to each of these offenses, PL 120.04 (Vehicular Assault in the First Degree), PL 120.04-a (Aggravated Vehicular Assault), PL 125.13 (Vehicular Manslaughter in the First Degree), and PL 125.14 (Aggravated Vehicular Homicide) for cases where the crime is committed with a child in the vehicle.

Section 11: REQUIRING IGNITION INTERLOCK DEVICES FOR PAROLEES OR CONDITIONAL RELEASEES

Section 11 of the bill modifies Executive Law section 259-c to require that all parolees and persons who have been conditionally released from jail or prison for DWI or DWI-related Penal Law offenses to install ignition interlock devices in their vehicles for the entire duration of the parole or conditional release period:

15-A. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHERE A PERSON IS SERVING A SENTENCE FOR A VIOLATION OF SECTION 120.03, 120.04, 120.04-A, 125.12, 125.13 OR 125.14 OF THE PENAL LAW, OR A FELONY AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION ELEVEN HUNDRED NINETY-THREE OF THE VEHICLE AND TRAFFIC LAW, IF SUCH PERSON IS RELEASED ON PAROLE OR CONDITIONAL RELEASE THE BOARD SHALL REQUIRE AS A MANDATORY CONDITION OF SUCH RELEASE, THAT SUCH PERSON INSTALL AND MAINTAIN, IN ACCORDANCE WITH THE PROVISIONS OF SECTION ELEVEN HUNDRED NINETY-EIGHT OF THE VEHICLE AND TRAFFIC LAW, AN IGNITION INTERLOCK DEVICE IN ANY MOTOR VEHICLE OWNED OR OPERATED BY SUCH PERSON DURING THE TERM OF SUCH PAROLE OR CONDITIONAL RELEASE FOR SUCH CRIME. PROVIDED FURTHER, HOWEVER, THE BOARD MAY NOT OTHERWISE AUTHORIZE THE OPERATION OF A MOTOR VEHICLE BY ANY PERSON WHOSE LICENSE OR PRIVILEGE TO OPERATE A MOTOR VEHICLE HAS BEEN REVOKED PURSUANT TO THE PROVISIONS OF THE VEHICLE AND TRAFFIC LAW.

Sections 12 and 13: MODIFYING THE SENTENCING PROVISIONS OF THE PENAL LAW

Sections 12 and 13 of the bill adds two new sentencing provisions for those convicted of DWI offenses:

PL 60.36 AUTHORIZED DISPOSITIONS; DRIVING WHILE INTOXICATED OFFENSES. WHERE A COURT IS IMPOSING A SENTENCE FOR A VIOLATION OF SUBDIVISION TWO, TWO-A, OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW PURSUANT TO SECTIONS 65.00 OR 65.05 OF THIS TITLE AND, AS A CONDITION OF SUCH SENTENCE, ORDERS THE INSTALLATION AND MAINTENANCE OF AN IGNITION INTERLOCK DEVICE, THE COURT MAY IMPOSE ANY OTHER PENALTY AUTHORIZED PURSUANT TO SECTION ELEVEN HUNDRED NINETY-THREE OF THE VEHICLE AND TRAFFIC LAW.

and

PL 60.21 AUTHORIZED DISPOSITIONS; DRIVING WHILE INTOXICATED OR AGGRAVATED DRIVING WHILE INTOXICATED. NOTWITHSTANDING PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 60.01 OF THIS ARTICLE, WHEN A PERSON IS TO BE SENTENCED UPON A CONVICTION FOR A VIOLATION OF SUBDIVISION TWO, TWO-A OR THREE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW, THE COURT MAY SENTENCE SUCH PERSON TO A PERIOD OF IMPRISONMENT AUTHORIZED BY ARTICLE SEVENTY OF THIS TITLE AND SHALL SENTENCE SUCH PERSON TO A PERIOD OF PROBATION OR CONDITIONAL DISCHARGE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 65.00 OF THIS TITLE AND SHALL ORDER THE INSTALLATION AND MAINTENANCE OF A FUNCTIONING IGNITION INTERLOCK DEVICE. SUCH PERIOD OF PROBATION OR CONDITIONAL DISCHARGE SHALL RUN CONSECUTIVELY TO ANY PERIOD OF IMPRISONMENT AND SHALL COMMENCE IMMEDIATELY UPON SUCH PERSON’S RELEASE FROM IMPRISONMENT.

The full text of the legislation is available at the open.com New York State Senate website. If you have been charged with a DWI or any criminal offense do not rely in any way on this website, which does not constitute formal legal advice nor create an attorney-client relationship, but instead consult with experienced New York criminal defense attorneys.