Alcohol-impaired driving legislation and sanctions have historically targeted offenders with multiple convictions. Many statutes provide for increased sentences for what are called “persistent” or “repeat” offenders. These statutes, which generally deal with felonies, provide for substantially increased punishment upon conviction for a specified additional felony. If a DWI offender has a certain number of prior felonies at the time they are arrested for DWI, many states will enhance the DWI charge to a felony charge because of the number of prior convictions.
In New York, when a driver has a current DWI violation and has had a prior DWI conviction within the prior ten years, then the pending charge will be upgraded to a Class E Felony DWI charge. When a driver has been convicted of DWI twice before and has a third DWI arrest, they will be charged with a Class D Felony DWI. Felony DWI cases are heard in the Supreme Court of the State of New York within the five counties of New York City and in the county courts in the balance of the state.
According to NY VTL§ 1193 (1)(c)(ii), there is an enhanced class D felony punishment embodied in the statutory language for drivers who have had two prior DWI convictions and are charged with a third DWI in New York. This section of the statute became effective on November 1, 1996 and provides in relevant part that, “A person who operates a vehicle in violation of subdivision two, three or four of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, three or four of such section … 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.” In enacting this provision, the legislature clearly meant to impose stiffer penalties upon repeat DWI offenders in order to respond to the severity of the problem of repeat DWI offenses.
In the case of People v. Homero, the court upheld the law which makes second and subsequent DWI convictions a Class D Felony in New York. The court considered the legislature’s intent in enacting the law and stated that the law was intended to punish more severely those people who persistently drive while intoxicated regardless of whether their prior offenses resulted in misdemeanor or felony convictions.
In the case of People v. Maldonado, the court upheld the statutory enhancement provision of VTL § 1193 (1)(c)(ii), and rejected a challenge to the statute’s constitutionality. The court held that the statute’s enhancement provision did not result in lack of fair notice and governmental restraint due to the legislature increasing punishment beyond what was prescribed when the crime was consummated.
DWI offenders in New York may also be sentenced as “persistent felony offenders.” Enacted in 1965, the Persistent Felony Offender (PFO) statute, NY Penal Law § 70.10, defines a persistent felony offender as “a person…who stands convicted of a felony after having previously been convicted of two or more felonies.”
In People v. Bowers, the Appellate Division upheld a persistent felony offender sentence for a defendant convicted of DWI, which constitutes a felony under the Vehicle and Traffic Law, not the Penal Law. The Appellate Division discussed the enhancement provision of the statute and stated that “significantly, this statute draws no distinction based upon the particular law under which the felonies are defined.”
The attorneys at the law firm of Nave DWI Defense Attorneys are experienced in handling DWI cases. If you need a lawyer who can help you obtain the best possible outcome in your DWI case, call the law firm of Nave DWI Defense Attorneys.
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