COUNTY OF ROCKLAND
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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:
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
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