New DWI Statute
By Michael Yavinsky
One criminal justice measure enacted in last year’s legislative session that will have a significant impact on New York’s criminal courts is Chapter 732 of the Laws of 2006. Commonly referred to as "Aggravated DWI Legislation," this law, which took effect Nov. 1, will affect the way the courts handle DWI cases.
The legislation creates two new sections of the Vehicle and Traffic Law. Driving While Ability Impaired By the Combined Influence of Drugs or of Alcohol and Any Drug or Drugs [new VTL § 1192(4-a)] occurs when a "person’s ability to operate… [a] motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs." It is a misdemeanor punishable by a fine "of not less than $500 nor more than $1,000" or a jail term of up to one year, or both. Aggravated Driving While Intoxicated; Per Se [new VTL § 1192(2-a)] occurs when a person is operating a motor vehicle "while such person has .18 of one per centum or more by weight of alcohol in such person’s blood, breath, urine or saliva." Also a misdemeanor, it is punishable by a fine "of not less than $1,000 nor more than $2,500" or a jail term of up to one year, or both.
The biggest procedural change that arises from this new law is the requirement that every defendant charged with a DWI offense be screened and/or assessed for alcohol/substance abuse and dependency. The legislation outlines the details of the screening and assessment procedure, which must be conducted by a credentialed alcohol and substance abuse counselor. Screenings and assessments are to be conducted at arraignment or at the court’s discretion prior to the sentencing of any person charged with a DWI-related offense. The results of these screenings and assessments will be given to the defendant and forwarded to the court within 30 days of the court’s order, with the new legislation providing detailed procedures regarding the confidentiality of these records. Court personnel who handle these cases should become familiar with these procedures.
The legislation creates new restrictions on plea bargaining in cases alleging a violation of the new Aggravated Driving While Intoxicated Offense [VTL § 1192 (2a)]. Also, the Department of Motor Vehicles-sponsored Drinking Driver Program is now mandatory for certain convictions. Additionally, anyone convicted of the new VTL § 1192(2-a) offense and sentenced to probation must install and maintain a functioning ignition interlock device as a condition of probation.
|The biggest procedural change that arises from this new law is the requirement that every defendant charged with a DWI offense be screened for alcohol/substance abuse and dependency.
The legislation also mandates every court to require defendants to complete treatment for alcohol/substance abuse or dependency where a court-ordered assessment indicates that the defendant, if sentenced to either probation or a conditional discharge, is in need of such treatment.
Chapter 732 also brings a number of changes that will affect the suspension and/or revocation of the driver’s license of those convicted of DWI-related offenses. A first conviction for VTL § 1192(4-a) will result in a six-month revocation of the defendant’s driver’s license, while a first conviction for VTL § 1192(2-a) will result in a one-year revocation. Defendants who refuse to submit to a chemical test will now face a one-year — instead of the previously mandated six-month — revocation of their driver’s license.
A further important change is that repeat offenders will now have to contend with permanent revocation of their driver’s license. However, "permanent" does not necessarily translate into "forever," with the legislation outlining which combination of convictions and/or refusals to submit to a chemical test will result in such permanent revocation as well as what is required in getting the Department of Motor Vehicles to waive such permanent revocation.
Michael Yavinsky is the chief court attorney of the New York City Criminal Court
Spring 2007 (PDF)
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