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COUNTY OF ROCKLAND
S.T.O.P – D.W.I.

35 Firemen's Memorial Drive
Pomona, NY 10970
 

Phone -  845-364-8525
Fax -     845-364-8997  

www.StopDwiRockland.com

 

Edwin Day                                                                                                                                                      LESLIE CHERNIN
County Executive                                                         
                                                                                  Coordinator

 

Leandra’s Law, Mandatory Ignition Interlocks and New Sentencing Provisions in DWIs

Leandra’s Law:     DWI with a child passenger 15 years old or younger.

                                  Effective date Friday, December 18, 2009

 

New section:  VTL §1192-2a(b)

E felony; 

                  Sanctions:  are the same as for other DWI felonies in VTL 1193(1)(c) (except for

                      existing mandatory ignition interlock for Aggravated DWIs, which applies)

                  Fine: $1,000 - $5,000

                  Jail:   Same as Penal Law (PL) E felonies;  up to 1 and 1/3 – 4 years.

Probation, Conditional Discharges (CD) and Jail/Probation split sentences are possible

No Unconditional Discharge. 

Sentence of Probation or CD must include a fine. [VTL §1193(1)(e)]

Mandatory Ignition Interlock:  All sentences for a conviction of either subsection of

   VTL §1192(2-a) [Aggravated DWI, including Leandra’s Law] that include a period     of probation require an ignition interlock as a condition [VTL §1193(1)(b)]

    Ignition Interlocks for any DWI offense currently require a probation sentence

    [VTL §1198(1)(2)].

    Effective August 15, 2010, interlocks can be a condition of a conditional

    discharge [Newly amended VTL §1198].

Conditions of Probation or Discharge:  Victim Impact Panels, Community Service     

    and Alcohol or Drug treatment are all possible [PL §65.10]

      Alcohol “Screening” is required for all DWI defendants with a BAC under .15 or a

          refusal.  An Alcohol “Assessment” is required prior to sentencing for all BACs of

          .15 or higher, or anyone determined in the screening to be abusing or dependent on

          alcohol [VTL 1198-a(2)(a)(b)(c)].   

License Sanction: Upon conviction, one year revocation [VTL §1193(2)(b)(2)]

                      Pending Prosecution suspensions [VTL §1193(2)(e)(7)] and Refusal  

          revocations [VTL §1194(2)(d)(1)]apply.  Conditional licenses may be   

          obtained pursuant to VTL §1196.  

 

Elements:

       Aggravated DWI; Child in Vehicle         

1)     Operation of a motor vehicle

2)     On a public highway within the county

3)     a)*With a BAC of .08 or higher [in violation of VTL §1192(2)]; OR

b)     In an intoxicated condition [in violation of VTL §1192(3)]; OR

c)     Impaired by drugs [in violation of VTL §1192(4)]; OR

d)     Impaired by the combined influence of drugs or drug(s) and alcohol [in violation of VTL §1192 (4-a)]

4)     And with a child passenger who is 15 years old or less.

 

*The statute does not include Aggravated DWI with a BAC of .18 or more [in violation of

  VTL §1192(2-a)].  The legislature apparently believed there could not be an Aggravated   

  DWI charge without a violation of VTL §1192(2).  Both crimes should be charged when

  appropriate.

 

Miscellaneous:

                                                           
Plea Restrictions:  Both subdivisions of Aggravated DWI (including Leandra’s

    Law) prohibit a plea in satisfaction of the charge to a Driving While Impaired by

                    Alcohol.  The plea must include Aggravated DWI or any misdemeanor DWI

                    unless the district attorney finds the evidence does not support the charge.  The

                     court must put the basis of any disposition outside these limitations on the record.

                     [VTL §1192(10)(d)]

 

      Simplified Traffic Informations/UTTs:  The officer must make a “CIV” notation

         in the “Description of Violation” section when there is a charge of DWI and there

                    is a “Child in Vehicle” (CIV) who is 15 years old or less.  [VTL §1192(12)(a)]

 

Child Protective Services (CPS)  Notification:  Where the officer determines  

    the driver is the parent, guardian, custodian or is otherwise legally

    responsible for the child, 15 years old or less, in the vehicle, the officer

    must notify CPS or other appropriate agency under article 6 of the Social

    Service Law.  [VTL §1192(12(b)]    

 

Assaults and Homicides:

 

                  Vehicular Assault 1º  PL §120.04(6)  [Class D, Non-violent felony]

                      New Subdivision:

·        A person is guilty of first-degree Vehicular Assault when he or she commits Vehicular Assault in the Second Degree and commits such crime while operating a vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes serious physical injury to such child.

 

                  Aggravated Vehicular Assault   PL §120.04-a (6)  [Class C, Non-violent felony]

New Subdivision:    


·        A person is guilty of Aggravated Vehicular Assault when he or she engages in reckless driving [VTL §1212], commits Vehicular Assault in the Second Degree and commits such crime while operating a motor vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes serious physical injury to such child.

 

                   Vehicular Manslaughter in the First Degree  PL §125.13(6)

 [Class C, Non-violent felony]

 New Subdivision

·        A person is guilty of Vehicular Manslaughter in the First Degree when he or she commits the crime of Vehicular Manslaughter in the Second Degree and commits such crime while operating a motor vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes the death of such child.

 

                    Aggravated Vehicular Homicide  PL  §125.14(7) [Class B, Non-violent felony]

                        New Subdivision

·         A person is guilty of Aggravated Vehicular Manslaughter in the First Degree when he or she engages in reckless driving [VTL §1212], commits the crime of Vehicular Manslaughter in the Second Degree, and commits such crime while operating a motor vehicle while a child who is 15 years old or less is a passenger in such motor vehicle and causes the death of such child.

 

Elements:

 

The existing rebuttable presumption that the defendant’s manner of driving, that caused the death or serious physical injury, resulted from his or her alcohol or drug impairment applies to each of the new “Leandra’s Law assault and homicide sections: 

 

Existing Presumption:

“If it is established that the person operating such motor vehicle, caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle, in a manner that caused such serious physical injury, as required by this section.”

 

1º Vehicular Crimes:

1)     Operation of a motor vehicle

2)     On a public highway within the county

 

3)     a)  With a BAC of .08 or higher [in violation of VTL §1192(2)]; OR

b)     With a BAC of .18 or higher [in violation of VTL §1192(2-a)]; OR

c)     In an intoxicated condition [in violation of VTL §1192(3)]; OR

d)     Impaired by drugs [in violation of VTL §1192(4)]; OR

e)     Impaired by the combined influence of drugs or drug(s) and alcohol [in violation of VTL §1192 (4-a)]

4)     With a child passenger who is 15 years old or less

5)     a)  [Vehicular Assault 1º] And causes serious physical injury to such

                                        child passenger;

      b)  [Vehicular Manslaughter 1º]  And causes the death of such child

            passenger.

 

Aggravated Vehicular Crimes:

1)     Operation of a motor vehicle

2)     On a public highway within the county

3)     a)  With a BAC of .08 or higher [in violation of VTL §1192(2)]; OR

b)     With a BAC of .18 or higher [in violation of VTL §1192(2-a)]; OR

c)     In an intoxicated condition [in violation of VTL §1192(3)]; OR

d)     Impaired by drugs [in violation of VTL §1192(4)]; OR

e)     Impaired by the combined influence of drugs or drug(s) and alcohol [in violation of VTL §1192 (4-a)]

4)     While engaged in reckless driving (to wit___)

5)     With a child passenger who is 15 years old or less

6)     a)  [Aggravated Vehicular Assault ] And causes serious physical injury to

           such child passenger;

b)     [Aggravated Vehicular Homicide]  And causes the death of such child passenger.

 

Mandatory Ignition Interlocks:    Effective date August 15, 2010*

            *Subject to “sunset” or statutory repeal on September 1, 2011 unless extended by the legislature.  VTL §1198 has been extended many times over the years.

 

            Mandatory.  A conviction for any misdemeanor or felony DWI under VTL sections 1192(2),(2-a) or (3), or a conviction for any Penal Law charge that has a violation of those VTL §1192 sections as an essential element, requires a mandatory sentence:  1) to install an ignition interlock device on any car owned or operated by the defendant for at least 6 months; 

2) prohibiting the defendant from operating any vehicle without an ignition interlock device [VTL 1198(9)(d)]; and 3) requiring DMV to note the interlock restriction on the defendant’s operating record* [VTL §1198(4)(b)].  There is no mandatory provision to install an interlock device on a DWAI but the court may make it a condition of a sentence of a conditional discharge in its discretion.   [PL §65.10 (2)(k-1)].

(*DMV now marks the physical license of anyone sentenced to an ignition interlock with a restriction code on the front of the license.  The back of the license reflects that the restriction requires interlock use.)

 

            Monitoring.  The Division of Probation or Correctional Alternatives is required to promulgate regulations [VTL §1193(1)(g)]:

                        1) governing the monitoring of compliance

                        2) providing standards for monitoring by departments of probation

                        3) providing alternatives to probation monitoring that counties may adopt.

                        4) providing a system of payment plans or waivers for indigent defendants.

                          [VTL §1198(5)(a)]

 

            Cost.  The defendant is required to pay for the ignition interlock device (installation, monthly interlock provider fee and removal fee).  If the court determines the defendant can not pay for the device, a payment plan will be devised or the fee “waived” in accordance with the Division of Probation or Correctional Alternatives regulations or “such other agreement as may be entered into for provision of the device.” [VTL §1198(5)(a)]

 

            Criminal Charges for Interlock Violations:

           

·         VTL §1198(9)(a)  [Class A Misdemeanor]:  No person whose driving privilege is restricted to operate a motor vehicle only with an ignition interlock device pursuant  to the Vehicle and Traffic Law or the Penal Law shall request, solicit, or allow any other person to blow into an ignition interlock device , or to start a motor vehicle equipped with the device, for the purpose of providing the person so restricted with an operable motor vehicle.

·         VTL §1198(9)(b)  [Class A Misdemeanor]:  No person shall blow into an ignition interlock device or start a motor vehicle equipped with the device  for the purpose of providing an operable motor vehicle to a person whose driving privilege is so restricted.

·         VTL §1198(9)(c)  [Class A Misdemeanor]:  No person shall tamper with or circumvent an otherwise operable ignition interlock device.

·         VTL §1198(9)(d)  [Class A Misdemeanor]:  No person subject to a court ordered ignition interlock device shall operate a motor vehicle without such a device.

 

Other Sanctions:

·        Failure to provide proof of compliance with the ignition interlock requirement may result in the revocation, modification, or termination of the defendant’s sentence of probation or conditional discharge.  The defendant may be re-sentenced as provided by law. [VTL §1198(4)(a)]

·        Failure to install or maintain an ignition interlock may result in the revocation of the defendant’s post-revocation conditional license.           [VTL §1198(3)(c)]

 

*Note:  There are several references in the statutes that nothing in these sections permits the court to authorize a defendant’s operation of a motor vehicle if he or she is not otherwise eligible.

 

Sentencing Provisions:  Effective date August 15, 2010

 

            Application:  Applies to defendants sentenced on or after August 15, 2010.

           

            Non-prison sentences:  When a defendant is convicted of a misdemeanor or felony DWI under VTL §1192(2),(2-a) or (3)* and receives any sentence that does not involve upstate prison time (including local jail time up to one year) the court must also sentence the defendant to a period of probation or conditional discharge [VTL 1193(1)(c)] to run consecutively to any sentence of incarceration. [PL §60.21 – New section]

 

New PL §60.21 creates a specific exception to existing PL §60.01(2)(d) for DWI cases.  Currently under PL §60.01(2)(d) when a defendant is sentenced to a period of probation, the statute  prevents an additional jail sentence in excess of 60 days on any misdemeanor and 6 months on any felony.  Those restrictions no longer apply to DWIs as of August 15, 2010.  This creates the possibility of a one year jail sentence with a consecutive period of 3 years probation on misdemeanors or 5 years probation on felonies.

 

*PL §60.21 does not specify that the DWI-related Penal Law felonies of Vehicular Assault, Vehicular Manslaughter, or Aggravated Vehicular Assault are subject to the consecutive probation or CD provision.  Therefore, if a defendant pleads guilty to one of those felonies and is not receiving an upstate prison sentence, the prosecution should require a separate plea to one of the DWI sections to obtain consecutive probation or a CD for the purpose of monitoring the mandatory interlock.

 

            Prison sentences:  Where a defendant is sentenced to upstate prison on any DWI-related felony, including Vehicular Assault, Vehicular Manslaughter, Aggravated Vehicular Assault or Homicide, and the defendant is released on parole or conditional release, new subdivision 15-a of Section 259-c of the Executive Law requires the defendant to install and maintain an ignition interlock device during the term of parole or conditional release.  The new section also states the parole board is not empowered to allow a defendant to drive who is not otherwise eligible.

           

            Authorized Dispositions:  New Penal Law section 60.36 specifies that where a court is imposing a mandatory ignition interlock device as a part of its sentence, the court may still impose any other authorized penalty