December 24th, 2012
As of the end of September, 2012, the New York State Department of Motor Vehicles has new regulations pertaining to drivers with multiple alcohol/drug-related driving convictions. This is a logical result from the increasing sanctions that pertain to Driving While Intoxicated or Driving While Impaired by Drugs offenses enacted by the Legislature.
These new regulations define a “persistently dangerous driver” as one who has had five or more alcohol/drug-related driving offenses or convictions in their lifetime or a motorist who in the last twenty-five years has had three or four alcohol/drug-related driving convictions plus one “serious driving offense”. Motorists with the “persistently dangerous driver” finding are to be permanently denied re-licensure, however, that permanent disqualification may not occur to the extent that the motorist demonstrates “compelling or extenuating circumstances”.
The regulations provide that if a current revocation for an alcohol-related offense involves a motorist with three or four similar prior convictions and without any serious driving offense in the last twenty-five years the denial of re-licensure shall be a period of five years in addition to whatever the statutory revocation period was for the current offense and with any subsequent re-licensure resulting in a restricted use license, as well as the requirement to install an ignition interlock device for a five year period.
To the extent that the current conviction is for a non-alcohol-related offense but results in some form of a revocation penalty, the Department of Motor Vehicles will deny re-licensure for two years in addition to whatever the statutory revocation period was for that particular offense and then re-license with a restricted use license for a period of two years, however, the ignition interlock device would not be required in that circumstance because the latest conviction would not have been alcohol-related.
Lastly, motorists that have two or more alcohol/drug-related driving convictions within the prior preceding twenty-five years are required to serve their entire suspension or revocation period even to the extent that they have completed the Drinker Driver Program.
The Department of Motor Vehicle already had an internal system for governing the timing of re-licensure in the event of revocations and these new regulations simply increase and strengthen those which have already existed.
The difference between a suspension and a revocation is that the suspension allows for the license to be returned following a relative short period of time whereas a revocation is akin to the license being destroyed such that the motorist is then required to reapply to the Department of Motor Vehicles to request that a new license be issued. Despite how important the ability to drive is in our society, the ability to maintain a driver’s license is a privilege as opposed to a right.
As a result, this is simply another example of why all should be very careful when operating their motor vehicles after consuming alcohol or drugs.
October 4th, 2011
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.
Get a lawyer!
December 9th, 2010
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.
February 15th, 2010
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.
January 30th, 2009
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