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

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

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

Recent amendments to NY’s DWI law add significant penalties and make it a felony to drive under the influence with a child in the car. 

Before the recent amendments, police officers would often charge a DWI defendant who has a child in the car with misdemeanor Endangering the Welfare of a Child.  Now, it is a felony under the DWI law to drive under the influence with a passenger under age 16 and such action must be reported to the Department of Social Services if the driver is the child’s parent, guardian or custodian. 

In addition, the new law mandates the installation of ignition interlock devices for first time DWI offenders.  An ignition interlock is a that device requires the driver to blow into a mechanism that checks for alcohol; if alcohol is detected, the car’s ignition won’t start and the result is reported to the individual’s sentencing court and probation officer.  Noncompliance and tampering with the device is a misdemeanor. 

It is more important than ever to retain counsel for drinking and driving offenses, as early in the case as possible. 

Tags: DWI, ignition interlock, recent amendments

While most of us recognize the dangers of drinking and driving and the implications that a DWI conviction can have on our licenses, many people do not appreciate how substantial the financial penalties are.

There are numerous drinking and driving offenses in NYS, the most common of which are: (a) driving while ability impaired (“DWAI”); (b) driving while intoxicated (“DWI”); and (c) aggravated driving while intoxicated (“ADWI”). You can be charged with DWAI for having a blood alcohol content (“BAC”) of 0.05 – 0.07%. DWI can be charged when the BAC is 0.08 – 0.17% and ADWI can be charged when the BAC is 0.18% and above. You can also be charged with drinking and driving based on (more…)

Tags: drinking and driving, DWI, dwi cost, dwi implications, financial penalties