New DWI Laws in New York
Westchester and Rockland County DWI Lawyer
In 2009, New York lawmakers approved new, tougher DWI laws that can have a significant impact on your DWI case. It is essential to understand how it will affect you and what to expect from the county where you were arrested.
Every DWI Case Is a Local Case
New York DWI charges are handled by counties, and the reality is that every DWI case is affected by the policies of county prosecutors as well as local court rules and customs.
Greenspan & Greenspan has developed a solid reputation in the legal communities in Rockland and Westchester counties after extensive experience handling DWI and DWAI cases there. We understand the goals of the local prosecutors and can respond with strategies they respond to rather than fumble your case with tactics that will be rejected. Contact Greenspan & Greenspan for a free legal consultation.
2010 NEW YORK DWI LAW CHANGES
I. The Child Passenger Protection Act - Leandra’s Law
On November 18, 2009, Governor Patterson signed into law some of the toughest penalties in the nation in response to the tragedies that have taken the lives of children who died while passengers in a vehicle driven by an intoxicated person on New York roadways. The consequences of driving a motor vehicle containing a child passenger when the driver is intoxicated or impaired by drugs are severe and apply even to first time offenders.
- First time offenders arrested for Driving While Intoxicated (“DWI”) (.08 Blood Alcohol Content (BAC) or more) or Driving While Ability Impaired by Drugs (DWAI) while a child of younger than 16 years old is in the vehicle may be charged with a class E felony punishable by up to 4 years in State prison.
- Individuals charged with driving with a blood alcohol level of .08 or greater and with a child under the age of 16 in the vehicle would automatically have their license suspended pending prosecution.
- People who drive while intoxicated or impaired by drugs and cause the death of a child younger than 16 in the car may be charged with a Class B felony, punishable by up to 25 years in State prison.
- People who drive while intoxicated or impaired by drugs and cause serious physical injury to a child in the vehicle may be charged with a Class C felony, punishable by up to 15 years in State prison.
- The parent, guardian, custodian or otherwise legally responsible person for a child who is charged with DWAI alcohol or DWAI drugs while that child is a passenger in the car would be reported to the statewide Central Register of Child Abuse and Maltreatment by the arresting agency.
- This law became effective on December 18, 2009.
II. Mandatory Ignition Interlock Device
Leandra’s law also changed the sentencing provisions for motorists convicted of misdemeanor or felony DWI.
In addition to imposing fines and mandatory license suspensions or revocations as previously provided by law, Courts must order all drivers convicted of misdemeanor or felony DWI to install and maintain an ignition interlock on any vehicle owned and operated by such driver for at least 6 months.
The interlock device requirement is in addition to any term of imprisonment.
The Department of Probation and Correctional Alternatives will issue regulations that will provide counties with different options for supervising the use of interlocks, so as to ensure that they can determine the most appropriate mechanism for their needs.
The ignition interlock device provisions will take effect on August 10, 2010
III. Civil Forfeiture of Vehicles in Westchester County
Westchester County has enacted a tough new law to crack down on motorists who operate their motor vehicles while under the influence of alcohol or drugs or who engage in speed contests. The County cited 2007 statistics revealing there were nearly 9500 alcohol related motor vehicle accidents in New York resulting in 373 deaths and 7175 persons injured.
Here some of the important provisions of the Forfeiture Law (Local Law §699)
- The Westchester County Attorney may commence a civil action for forfeiture of a vehicle to the County of Westchester Effective on December 10, 2010
- The forfeiture law applies to vehicles used by a person arrested for and convicted of a violation of any subdivision of the drunk driving statute (Section 1192 of the Vehicle & Traffic Law) or
- Vehicles used in violation of the Drag Racing Statute (Section 1182 of the Vehicle & Traffic Law) and
- The forfeiture law applies to vehicles driven by people who are convicted of DWAI (Driving While Ability Impaired By Alcohol) - a non-criminal offense [VTL 1192(1)] and to people convicted of the crime of DWAI- Drugs [VTL 1192(4)].
- The arrest must be made by a Westchester County Police Officer.
- Forfeiture Proceedings may be commenced by the Westchester County Attorney’s Office within 60 days following a conviction.
- The County must notify the vehicle owner by certified mail, return receipt requested that the vehicle may be subject to a forfeiture proceeding
- The vehicle owner must notify the County of the owner’s intention to transfer ownership or possession of the vehicle subject to forfeiture at least fifteen days before the transfer
- Forfeiture under this law is a civil proceeding. It is totally separate from the criminal prosecution of the motorist. If the driver and owner are the same person, they must enter into a separate agreement with the attorney defending against the criminal charges.
Forfeiture Law Innocent Owner Affirmative Defense
Where the owner and operator of the vehicle subject to civil forfeiture are not one in the same, an affirmative defense may be raised by the owner in the forfeiture proceeding. The owner alone may establish that he or she:
- Did not have actual or constructive notice that the vehicle would be used in violation of the drunk driving or speed contest laws or
- Took reasonable precautions to prevent use of the vehicle by the person who was later arrested.
- The person wishing to assert an innocent owner defense may not be able to retain the same attorney who represents the driver in the criminal proceedings as there may be a conflict of interest precluding the attorney from doing so. This issue must be addressed by both the owner and the criminal defense attorney.
Hardship Relief
The vehicle owner may apply to the court for hardship relief if the court determines that the vehicle is to be forfeited. The application must be made on notice to the County and establish that:
- Loss of the vehicle would cause a substantial and unwarranted hardship because
- The owner has no reasonable access to public transportation and to the use of another vehicle and
- lacks financial resources to purchase or lease another vehicle and the vehicle is a
- “Necessary incident to his or her”
- Employment, Business, Trade, Occupation, or Profession or for
- Travel to and from School, or to obtain
- Medical treatment for the owner or a member of the owner’s household or
- Travel to and From a necessary medical examination.
The Court may grant hardship relief if these factors are established, but may set conditions including requiring the installation of an ignition interlock device.
What Happens to My Vehicle if a Judge Rules in Favor of the County?
The Westchester County Department of Public Safety may take any of the following steps should it prevail at a forfeiture proceeding:
- Retain the vehicle for its own use
- Transfer it to another agency within the county for official use
- Transfer it to a county funded agency or organization for use by the organization
- Sell it at public auction by public notice of at least five days
What if my Vehicle is Leased?
The new law provides that a leasing company may still exercise its rights to recover the vehicle set forth in the contract or under applicable law.
What if there is lien on My Car?
The innocent owner defense applies to lien holders. The interest of a lien holder shall not be subject to forfeiture, though it will not entitle the lien holder to more than the outstanding balance of the lien.
How Can I Keep My Driver's License after a DWI or DWAI?
New York law requires the judge to suspend your license, or, if you are an out of state motorist, your New York driving privileges at arraignment. The process of obtaining a conditional driver's license takes longer under the new law but, if you meet certain criteria, it is still possible to obtain a conditional license through New York State's Drinking Driver Program (DDP).
The law now requires all persons charged with DWI or DWAI to be screened or evaluated for alcohol and/or chemical dependency. Depending on your circumstances, you may have to submit to a more comprehensive evaluation.
How Do I Know if I am Eligible for a Conditional License?
Conditional licenses are issued by the DMV in conjunction with your participation in the Drinking Driver Program after a conviction. The DDP is only available to you once every 5 years. We will explain how you may be eligible for a "pre-conviction conditional license."
"Permanent" License Revocation and Other Penalties for Drunk Driving
The new DWI law contains a tough punishment in extreme cases: a "permanent" disqualification from having a driver's license. Keep in mind, however, that it is permanent in name only. In fact, you could get your license back in 5 to 8 years.
Most non commercial license holders convicted of DWI will not face such a strong punishment, especially first-time offenders who did not injure anyone. If you refused to take a breath test, your license could be revoked for 18 months; for most people, it is suspended for less than a year.
Pleading to DWAI may be a good option, because DWAI is a traffic violation, not a crime; meaning that no conviction for a crime will appear on your record. It will not show up in the criminal background checks many employers use, although it can be cited as a prior alcohol offense if you are arrested again.
You do have the option of going to trial and forcing the prosecution to prove you are guilty beyond a reasonable doubt. As you make these crucial decisions, obtain knowledgeable legal counsel from an attorney with experience handling DWI cases in the jurisdiction where you were arrested.
Contact Us
If you are facing a DWI charge, hire an attorney who has both an in-depth understanding of the new DWI laws and extensive experience defending DWI cases in the Courts of Westchester and Rockland counties. Contact us to schedule a free initial consultation. Hablamos Español.
