New York Criminal Defense Blawg

Being accused of driving under the influence of alcohol, marijuana, or any controlled substance in New York is not a matter to be taken lightly. A conviction for any DWI-related offense can have serious consequences, such as incurring a permanent criminal record, driver’s license suspension and/or revocation, payment of hefty fines, enrollment in counseling programs, requirement of the use of an ignition interlock mechanism, vehicle forfeiture, and/or incarceration. In fact, merely being charged with a DWI-related offense can impose a hardship upon a person before he/she is even convicted, as certain Vehicle and Traffic Law (“VTL”) provisions provide for immediate suspension of driver’s licenses which can disrupt a working person’s life. This post will explain the most commonly used DWI charges and the penalties associated with them so that you know what to expect if you or someone you know are in the position of facing a prosecution for DWI.

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.

New York motorists can have their driver’s licenses suspended for a variety of reasons, including unpaid parking or traffic tickets, conviction for a controlled substance offense, unpaid child support, or other reasons.  What many fail to realize is that once a person is “on notice” of the suspension, it is a misdemeanor to drive a vehicle which can result a sentence of jail, probation, a fine, and a criminal record.

The statute reads, in pertinent part, as follows:

 § 511. Operation  while  license or privilege is suspended or revoked;
  aggravated unlicensed operation. 1. Aggravated unlicensed operation of a
  motor vehicle in the third degree. (a) A person is guilty of the offense
  of aggravated unlicensed operation of  a  motor  vehicle  in  the  third
  degree  when  such person operates a motor vehicle upon a public highway
  while knowing or having reason to know that  such  person's  license  or
  privilege  of operating such motor vehicle in this state or privilege of
  obtaining a  license  to  operate  such  motor  vehicle  issued  by  the
  commissioner  is  suspended,  revoked  or  otherwise  withdrawn  by  the
  commissioner.
    (b) Aggravated unlicensed operation of a motor vehicle  in  the  third
  degree is a misdemeanor. When a person is convicted of this offense, the
  sentence  of  the court must be: (i) a fine of not less than two hundred
  dollars  nor  more  than  five  hundred  dollars;  or  (ii)  a  term  of
  imprisonment  of  not more than thirty days; or (iii) both such fine and
  imprisonment.

If you are pulled over for a minor traffic infraction, such as expired tags or a broken tail-light and have such a suspension, you can quickly find yourself under arrest, jailed for 24 hours or more, and facing a permanent criminal record.  Before you or your loved one goes to court or sees a judge when facing such a charge, it is important that you consult with experienced vehicle and traffic law criminal attorneys.