Last week, the Buffalo News reported that a 29-year old driver with 2 prior convictions for DWAI has been charged with DWI in connection with his arrest for driving the wrong way down the Thruway.  The question in everyone’s mind is: “if this is his third offense, why wasn’t he charged with a felony?”  The defendant is being charged with a misdemeanor, which is considered a crime and is punishable by up to one year in jail, but he won’t be charged with a felony.  Here’s why:

His two prior convictions were for Driving While Ability Impaired. DWAI is defined as a traffic infraction, not a crime. Even though it’s an infraction, a defendant convicted of DWAI can be sentenced to up to 15 days in jail. A second conviction for DWAI within 5 years is also considered traffic infraction, but carries additional fines and a possible jail term of 30 days.

If he had one prior DWI conviction within the past 10 years, he would be charged with a Class E Felony. If he had two prior DWIs within 10 years, he would be charged with a Class D Felony.  However, the rule is not the same where a defendant, like the one in this article, is charged with Misdemeanor-DWI after having two prior DWAI convictions. If he is convicted of DWI, the court will certainly take his prior convictions into consideration at sentencing.

In this case, the District Attorney could choose to also charge him with DWAI as a “lesser-included offense” in order to increase the likelihood of securing a conviction. The DA would have discretion whether to charge it as an infraction or as a misdemeanor because this is his third DWAI within 10 years. The defendant is entitled to have proper notice at the beginning of the case as to what he is being charged with. If the DA chooses to charge “Misdemeanor DWAI,” the DA will have the burden of proving the existence of the two prior convictions within the past 10 years. A conviction on this charge will carry increased fines, up to 180 days in a penitentiary or county jail, or both.

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Tags: class D felony, class E felony, DWAI, DWI, prior conviction, traffic infraction

The Buffalo News reported on October 2nd that investigators are still on the look out for a driver that hit and killed a woman on Broadway and didn’t stick around to fess up.

Leaving the scene of a motor vehicle accident with out reporting it may result in serious fines and penalties, including criminal prosecution. When an accident leaves someone dead, the operator of the responsible vehicle may face criminal charges that can increase if drugs or alcohol were involved. These accidents may also result in civil suits by the estate of the person who was killed. These suits can include claims for personal injuries as well as wrongful death.

Tags: auto accident, broadway fatal accident, car accident, hit and run, leaving the scene

As many Western New Yorker’s are aware, there has been a rash of vehicles crashing into buildings in 2011 so far, including the most recent today, September 30^th, into the front of Dessert Deli in a busy plaza at Maple and North Forest in Williamsville.

If these unfortunate incidents are truly accidents, the drivers will be charged accordingly. Those charges could include anything from inadequate brakes (a misdemeanor), failure to use due care (infraction or misdemeanor, depending on circumstances), speed not reasonable and prudent (3 points), to maybe even a charge of parking in a prohibited place! (max $150 fine). Depending on their driving records, they may be able to negotiate a reasonable deal with prosecutors. If alcohol or drugs are involved, the driver can be expected to be charged criminally. The drivers need to stay on site, though, because leaving the scene of an accident involving a personal injury is a separate crime. Civilly, the driver is also on the hook for damage to person or property, as well as the owner of the vehicle.

Our advice to drivers and building owners is the same:  review your insurance coverage and make sure you are properly protected. Paying attention while driving no matter where you are goes without saying. There are serious consequences as indicated by these unfortunate accidents resulting in property damage, serious injuries and in some cases even death to the driver and innocent pedestrians.

Tags: car insurance, Dessert Deli, driving misdemeanor, vehicle accident

Published in a recent article in the Buffalo News, a Hamburg woman received both jail and probation time for driving under the influence of a narcotic drug with young children in the vehicle.  Drinking and driving laws in New York will continue to become more strict each year. Leandra’s Law imposes two new major consequences on defendants convicted of DWI or driving while impaired by drugs with children in the car.

First, as this article discusses, Leandra’s Law re-classified the crime as a felony instead of a misdemeanor, which results in more severe sentences. Second, it requires the defendant to install an ignition interlock device in every car they own or operate, which imposes added expenses and burdens on the individual. In many cases, the defendant will not be given an opportunity to negotiate a reduction in the charge, so defense attorneys are focusing their efforts on attempting to get a commitment from the court for a more favorable sentence. Another problem that is not discussed in this news article is the likelihood that a civil lawsuit will be brought against the drinking driver and the owner of the vehicle to recover money damages. It’s important to have the experienced counsel to evaluate these issues and be prepared to address them as they arise.

Tags: driving under the influence, driving under the influence of drugs, dui, hamburg, Leandra's Law, swi

On February 16, 2011, the New York State Department of Motor Vehicles announced that it will be imposing a two-point penalty, in addition to the $100 fine already in effect, for drivers caught talking on their hand-held cell phones while driving.  New York was the first state in the country to ban hand-held phone use while driving in 2001 in an attempt to decrease the number of driver distracted accidents.  Today however, one in five car accidents is driver distraction related.  New York is hoping that by adding the points punishment, drivers will obey the laws more seriously.

This new rule will make it the same number of points for texting while driving, although texting and driving comes with a fine of $150.  Drivers who collect eleven penalty points in eighteen months may face a suspension of their license. Points can add up quickly, so think before you pick up that call!

Tags: cell phone, driving, license suspension, new york state, texting

The newest additions to New York’s DWI law are Leandra’s law and the ignition interlock device.  Leandra’s law makes it a felony to drive a vehicle while impaired by alcohol or drugs with a child who is fifteen years of age or younger in the vehicle.  The ignition interlock device is like a breathalyzer that is installed inside your vehicle and prevents the vehicle from being operated if the driver has consumed alcohol. (more…)

Tags: aggravated dwi, DWI, ignition interlock, Leandra’s law

In November 2009, Governor Paterson signed the Child Passenger Protection Act, also known as Leandra’s Law. The law is named after Leandra Rosada who was eleven years old when she was killed while in a vehicle operated by a friend’s drunken mother. (more…)

Tags: Child Passenger Protect Act, Leandra Rosada, Leandra's Law, ROAD SAFE Act