During the past five years, New York State has continuously ratcheted up the severity and consequences surrounding DWI’s and related offenses. In 2010, Leandra’s Law was enacted, making it a felony level offense to drive intoxicated by alcohol, or impaired by drugs with a child fifteen years or younger in the vehicle. Then in 2014, the state enacted stricter penalties for those individuals convicted of multiple DWI offenses within ten years; making a second or third conviction within ten years a felony offense. As a result of this policy, many citizens of New York have faced the full weight of the criminal justice system. They have had their licenses taken away, been placed in prison, lost their jobs, lost their homes, and have endured financial hardships that are almost impossible to climb out of. There is no doubt that operating a motor vehicle in an intoxicated state is bad decision, and one that sadly, a lot of people make. However, at some point the level of punishment does not fit the crime.
Following its recent trend of disproportionately punishing those convicted of DWI and related offenses, the New York State Senate has recently passed three bills, which if approved by the State Assembly, could go into effect as soon as 2016. These bills, if turned into law, would result in more felony convictions, more jail sentences, and more prison sentences for those convicted of DWI and related offenses in New York. The three potential laws are described in detail below. We feel that the best way for individuals to protect themselves against these consequences is to first be aware and to be knowledgeable of them.
Bill number S4220 is officially titled “An Act to Amend the Vehicle and Traffic Law and the Penal Law, In Relation to Driving While Intoxicated”. The bill’s official purpose, as stated on the New York State Senate’s website is: “to make mandatory a period of incarceration for individuals who choose to again drive while under the influence after having been previously convicted of such a crime”. True to its word this is exactly what the bill does.
As the law currently stands under Vehicle and Traffic Law Section 1193, there are no mandatory sentences of incarceration for DWI and related offenses. There are authorized sentences of incarceration that the judge has discretion to impose. However if bill S4220 becomes law that will not be the case, instead the bill would impose mandatory jail sentences as follows:
- For individuals who have been convicted of a DWI, DWAI Drugs, or DWAI Combined Influence under Vehicle and Traffic Law Section 1192 and have a prior conviction of DWI, DWAI Drugs, or DWAI Combined Influence within 10 years there would be a mandatory 30 day jail sentence.
- For individuals who have been convicted of a DWI, DWAI Drugs, or DWAI Combined Influence under Vehicle and Traffic Law Section 1192 and have two or more prior convictions of DWI, DWAI Drugs, or DWAI Combined Influence within 10 years there would be a mandatory 90 day jail sentence.
- For individuals who have been convicted of an Aggravated Misdemeanor DWI under Vehicle and Traffic Law Section 1192 and have a prior conviction of Aggravated Misdemeanor DWI within 10 years there would be a mandatory 180 day jail sentence.
- For individuals who have been convicted of an Aggravated Misdemeanor DWI under Vehicle and Traffic Law Section 1192 and have two or prior convictions of Aggravated Misdemeanor DWI within 10 years there would be a mandatory one (1) year jail sentence.
As if making jail mandatory was not enough, bill S4220 also seeks to change the law so that felonies under the DWI statute (Vehicle and Traffic Law Section 1192) may count towards the Second Felony Offender statute.Currently, New York State’s Second Felony Offender statue (Penal Law Section 70.06) allows for increased sentences of incarceration for those individuals who are convicted of a felony under the Penal Law, and who have within ten years been convicted of a prior felony. As the law stands right now felonies under the DWI statute do not trigger the Second Felony Offender statute. However, if bill S4220 becomes law then individuals who are convicted of a felony under the DWI statute, after having been convicted of a felony within ten years, will face the stricter incarceration sentences. For example, an individual could face up to seven (7) years in state prison for a felony DWI offense as a result of the new law.
Bill number S2976 is officially titled “An Act to Amend the Vehicle and Traffic Law, In Relation to Acting as a Supervising Driver While Under the Influence of Alcohol and/or Drugs”. The bill seeks to add conduct to the already existing DWI statute (Vehicle and Traffic Law Section 1192).
As it stands now an individual who operates a vehicle intoxicated by alcohol or impaired by drugs, with a child fifteen years of age or less inside, is guilty of an E-felony. Bill number S2976, if enacted, would make it a misdemeanor to be intoxicated by alcohol or impaired by drugs while being a “supervising driver”, and an E-felony if the “supervising driver” was found to have a blood alcohol level of .18 or higher. “Supervising driver” meaning anyone qualified under the law to supervise someone with a learner’s permit or junior license. There are two important aspects of this proposed law that individuals need to be aware of:
- First, it allows an individual to be charged with a felony, when they are not even operating the vehicle.
- Second, it makes no distinction as to the age of the individual driving the vehicle with a permit or junior license.
Essentially, bill S2976 seeks to place the same type of criminal liability on an individual who simply rides in a vehicle while intoxicated by alcohol or impaired by drugs, as a person who actually drives a vehicle while intoxicated by alcohol or impaired by drugs. Also, it is clear that the intent of the bill was to protect young drivers who hold permits or junior licenses, but the language does not specify any age. Therefore it would be theoretically possible under this bill, for a person to be charged with a crime for supervising someone who holds a learners permit but is also over 21 years of age. Furthermore, the bill seeks to make this type of conduct chargeable as an E-felony, which carries an indeterminate prison sentence of one (1) to four (4) years.
Bill number S405 is officially titled “An Act to Amend the Vehicle and Traffic Law, In Relation to Leaving the Scene of an Incident Without Reporting”. This bill modifies the language of Vehicle and Traffic Law Section 600, which encompasses offenses related to leaving the scene of an accident.
Bill number S405 adds a presumptive burden on drivers accused of DWI or related offenses that have also been in an accident. Normally a driver in an accident can only be charged for leaving the scene if that driver knew or should have known that the vehicle came into contact with another vehicle, property, or a person. Under the changes enacted by the bill a driver who has left the scene of an accident where there has been damage to another vehicle, property, or injury to a person, and that driver has also been accused of violating the DWI statute, (Vehicle and Traffic Law Section 1192) then they are deemed “to have known or have cause to know of such contact and of such damage”. Therefore an individual who was involved with an accident, and charged with violating the DWI statute, would also be charged with an additional misdemeanor if the accident involved vehicle or property damage, and an E-felony if the accident involved an injury to a person.
It has become clear that New York State has adopted a policy where individuals charged with DWI or a related offense will be harshly and disproportionately punished in relation to those who commit more serious crimes. The three pieces of legislation mentioned above are examples of this policy. Due to the ever increasing severity of the consequences surrounding a conviction for DWI or a related offense it is even more important that individuals make themselves aware of such consequences. Furthermore it is essential, should an individual be charged with a DWI or related offense, that they contact an attorney who specializes in this area of the law. Hiring the right attorney can make the difference between being subject to the full weight of the criminal justice system and not having your life ruined by a DWI.
The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.