Leandra’s Law: New York State Legislature Passes Stern, New DWI Law

On November 18, 2009, the New York State Legislature announced the passage of Leandra’s Law.  Hailed as the toughest DWI law in the nation, the legislation is designed to enhance penalties for those found guilty of drunken driving with a child passenger in the vehicle and require the installation of ignition interlock devices for all DWI criminal offenders.  The bill was passed in rapid response to the October 2009 death of 11-year-old Leandra Rosado, who died in a car accident while riding as a passenger in a vehicle driven by 31-year-old Carmen Huertas.  Ms. Huertas was subsequently charged with DWI and vehicular manslaughter.

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law made by sections five and five-a of this act shall not affect the repeal of such section and shall be deemed repealed therewith.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 may SHALL 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 this 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 imposed FOLLOWING 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 SUBDIVISION 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.

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