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DWI - Driving While Intoxicated

07/26/06 @ 12:17:55 pm by admin

When does Driving While Intoxicated become a class E Felony?

Driving While Intoxicated and Driving with Greater than .08 Percent Blood Alcohol Content are unclassified misdemeanors unless:

1) The driver of the vehicle has been convicted of Driving While Intoxicated, or Driving with Greater than .08 Percent Blood Alcohol Content, or Driving While Ability Impaired by Drugs within ten (10) years of the driver's most recent arrest; --OR---

2) The driver has been previously convicted of Vehicular Assault in the First or Second Degree, or Vehicular Manslaughter in the First Degree or Second Degree within the last ten (10) years.

What if the driver has more than one prior Driving While Intoxicated conviction in the last ten (10) years?

If the driver has two (2) or more prior convictions for Driving While Intoxicated, Vehicular Assault in the First or Second Degree, or Vehicular Manslaughter in the First Degree or Second Degree, in the last ten (10) years and is arrested again for Driving While Intoxicated, the driver will be charged with a class D felony.

What are the criminal penalties for a conviction of an E Felony DWI?

Assumptions

Offense: driving while impaired or intoxicated (E felony), in violation of VTL 1192(2-4), a class E felony

Age category: adult

Felony offender category: first felony offender (Penal Law 70.00)

Answer

The following assumes that the defendant was operating an ordinary motor vehicle rather than a special or commercial vehicle.

The sentence must include either a fine, or imprisonment, or both a fine and imprisonment. VTL 1193(1).

The sentencing possibilities are:

An indeterminate sentence of imprisonment having a maximum term of not less than 3 years and not more than 4 years, and a minimum term of not less than 1 year and not more than one-third of the maximum term. Penal Law 70.00. Thus, the least such sentence is 1 to 3 years, and the greatest such sentence is 1 and one-third to 4 years.

A definite sentence of imprisonment of up to 1 year, if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence. Penal Law 60.01(3)(a) and 70.00(4).

Intermittent imprisonment for any term that could be imposed as a definite sentence, if the court is not imposing any other sentence of imprisonment upon the defendant at the same time, and if the defendant is not under any other sentence of imprisonment having a term in excess of 15 days imposed by any other court. Penal Law 60.01(2)(a)(ii) and 85.00.

Probation for 5 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through probation supervision, and (iii) such disposition is not inconsistent with the ends of justice. Penal Law 60.01(2)(a)(i) and 65.00. If the conditions of probation include a condition that the defendant not operate a motor vehicle or apply for a license to operate a motor vehicle during the period of the condition, then the commissioner of motor vehicles may not restore the defendant's license until the period of the condition has expired. VTL 1193(2)(e)(5).

Conditional discharge for 3 years, if the Court having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate. Penal Law 60.01(2)(a)(i) and 65.05. Because the crime is a felony, the court must set forth in the record the reasons for imposing a conditional discharge. Penal Law 65.05(1)(b).

Any sentence of probation or conditional discharge must be accompanied by a sentence to pay a fine. VTL 1193(1)(e).

A split sentence including both imprisonment and either 5 years of probation or 3 years of conditional discharge. The imprisonment may be either a definite sentence of imprisonment of up to 6 months, or intermittent imprisonment of up to 4 months. Penal Law 60.01(2)(d).

A fine of not less than 1,000 dollars nor more than 5,000 dollars. VTL 1193(1)(c)(i). A fine may be imposed by itself or in addition to imprisonment, probation, or conditional discharge. VTL 1193(1)(c)(i) and Penal Law 60.01(2)(c).

If a victim is seeking restitution or reparation, the court must consider ordering it, and if not ordered, the court must state its reasons on the record. If restitution is ordered, the amount will be increased by a 5 percent surcharge that goes to the collection agency. Penal Law 60.27(1); CPL 420.10(8).

The defendant must pay a mandatory surcharge of 250 dollars and a crime victim assistance fee of 20 dollars, unless restitution or reparation has been made, and in any event must pay a DWI-DWAI surcharge of 25 dollars. VTL 1809(1) & (6); VTL 1809-c(1).

The Court must revoke the defendant’s driver’s license, and may revoke his registration, for 1 year if the present crime was committed within 10 years of a previous conviction under subdivision 2, 3, or 4 of VTL 1192. VTL 1193(2)(b)(3).

If the defendant was under 21 when the offense was committed, his driver’s license must be revoked for one year, but if the defendant had previously been found to have consumed alcohol in violation of VTL 1192-a or had previously been convicted of, or adjudicated a youthful offender for, a VTL 1192 offense, then the revocation must be for one year or until the defendant reaches 21, whichever is longer. VTL 1193(2)(b)(6-7).

Upon sentencing, the court must issue an order revoking the license, and the defendant shall surrender the license to the court. The court may issue an order making the revocation effective twenty days after sentencing, if the defendant has not been convicted of any violation of VTL 1992 or of any violation of article 120 or 125 of the Penal Law within the preceding five years, and if the defendant was not charged with any such violation of the Penal Law in the present case. VTL 1193(2)(d).

The court may require the defendant, as a part of or as a condition of the sentence, to attend a single session conducted by a victims impact program concerning the impact of operating a motor vehicle while under the influence of alcohol or drugs. VTL 1193(1)(f).

Minimum additional penalties apply to persons who violate VTL 1192, subdivision (2) or (3), within 5 years after being convicted of either of those subdivisions.

If there was one such previous conviction within 5 years, then, in addition to any other penalties imposed, the sentence must include 5 days of imprisonment or 30 days of community service.

If there were two or more such previous convictions within 5 years, then, in addition to any other penalities imposed, the sentence must include 10 days of imprisonment or 60 days of community service.

In either case, the court must order installation of an ignition interlock device on each motor vehicle owned by the defendant, to remain installed during any period of license revocation required to be imposed, and, upon termination of the revocation period, for an additional period as determined by the court. Additionally, the court must order that such person receive an assessment of the degree of their alcohol abuse, and where the assessment indicates the need for treatment, the court is authorized to impose treatment as a condition of sentence. VTL 1193(1-a).

In addition to any other fines, fees, penalties and surcharges, any person convicted of violating any subdivision of VTL 1192 must pay a driver responsibility assessment of 250 dollars per year for three years. The Department of Motor Vehicles, not the Court, is responsible for notifying the defendant of this obligation and collecting payment. Failure to pay will result in suspension of the defendant's driver's license until payment is made. VTL 1199.

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