Recap of the DWI Laws effective in New York State 2013

On November 1, 2013, the Office of New York State Governor Andrew Cuomo announced various changes to the DWI laws and penalties which will take effect:

1.  Persons who drive while intoxicated, while holding a conditional license, will now face a felony.  This is the same penalty for those who drive while intoxicated after having their license revoked.  Previously, driving drunk with a conditional license was a traffic infraction.

Note:  in NYS, conditional licenses are issued to drivers who lose their license for drunk driving but have enrolled in an alcohol and drug rehabilitation program run by the Department of Motor Vehicles. A conditional license may be used only for driving to and from essential destinations such as work, school, and medical appointments.

2.  Also taking effect starting this month in New York are several provisions that strengthen the state’s “Leandra’s Law,” specifically those that deal with the required installation of an ignition interlock device on vehicles owned, or operated, by a person convicted of misdemeanor or felony driving while intoxicated or other alcohol-related offenses. Ignition interlock devices prevent a driver under the influence of alcohol from operating a motor vehicle.

Leandra’s Law, which took effect in December 2009, is named after 11-year-old Leandra Rosado, who was killed in a crash while riding in a car driven by a drunken driver. In addition to the ignition interlock requirement, the law also made it a felony to drive drunk with a child under the age of 16 in a vehicle. Since the law took effect to October 22, 2013, more than 3,300 individuals across New York State have been arrested under Leandra’s Law.

The new provisions that took effect on Nov. 1 are as follows:

(a) Limit the circumstances in which a court can waive the installation of an interlock device to only when a person under oath attests that he or she is not the owner of a motor vehicle and will not operate any vehicle during the period of the interlock restriction. Lying under oath would be considered perjury. As of June 2013, more than 14,000 drivers had ignition interlock devices installed in their vehicles.

(b) Clarify that youthful offenders are subject to the same ignition interlock requirements that are applicable to adults.

(c) Authorize the imposition of ignition interlock devices prior to sentencing as a preventive measure.

(d) Increase the minimum requirement for installation of an ignition interlock device from six months to one year.

Anthony LoBiondo, Esq.

www.LoBiondoLaw.com

email:  anthony@lobiondolaw.com

Tel: (845) 569-7600

What do I do if my NYS Drivers License is Suspended or Revoked?

First, it is important to understand the difference between a New York State drivers license and driving privileges. Second, it is important to understand the difference between the suspension of a license or privilege versus the revocation of a license or privilege.

Suspensions. Some common reasons for suspension of a drivers license or privilege are: Failure to answer a ticket; failure to pay a fine or fee assessed by the DMV; a lapse in your automobile liability insurance for a period of 91 days or more; alcohol and/or drug related driving violations such as DWAI; an excess of a certain amount of points on your license (also known as DMV driver violation point system\persistent violator); failure to pay driver responsibility assessments; Junior or probationary license violations; failure to file an accident report with the DMV when required to do so; and, of course, failure to pay child support, leading to a judgment of child support arrearages.

Drivers license and Driving Privileges.  A driving privilege is your legal authority to drive in a state other than the state, which issued your drivers license. By way of example, if California issued you a drivers license, and you are convicted of certain driving and alcohol crimes in the state of New York, New York State can revoke your privilege to drive in the state of New York; however, this will not necessarily impact your California drivers license.

Revocations.Some common reasons for revocation of one's drivers license or privileges are:alcohol and/or drug related driving violations such as DWI; serious or multiple moving traffic violations; operating or allowing the operation of an uninsured vehicle; getting into an accident with an uninsured vehicle; failure of a DMV road test; finding after hearing of a fatal accident.

If your NYS Drivers License OR your driving privileges in new York state has been suspended, or revoked, there are different processes for the restoration of your drivers license or your driving privileges. Which process you use depends on the reason that your license (or privilege) was suspended or revoked in the first place. There may be additional requirements for restoration based on the origin of the suspension or revocation.

It is also important to note that if you have multiple suspensions and or multiple revocations, there can be multiple requirements from the New York State DMV.

Online restoration after revocation.  There is now an online request available for restoration of one's drivers license or privileges after revocation.  Again, this applies to revoked licenses not suspended licenses.  if you have fully served the revocation period described in your order of suspension or revocation, you may be able to use the online process to restore your drivers license. In order to do so you'll need to open up an account at my DMV and use the online request transaction:  http://www.dmv.ny.gov/mydmv.htm

Restoring your license after revocation.  if your drivers license or privilege has been revoked, in DMV terms, you can consider it as having been canceled. In order to achieve restoration, you must apply to the DMV for a new drivers license or privilege.

The Role of DIU.  For most revocations, before applying for new drivers license or having your driving privileges restored, you must first receive approval from the DMV driver improvement unit. If you receive approval from the DI you, this does not automatically restore your New York State drivers license. Upon receipt of approval from the DIU, you must then take your approval to a local DMV office and apply for new license. The DIU will examine your full driver's record to determine if you're eligible to be approved for restoration.

Before requesting approval for restoration of your driving privileges or approval to apply for new drivers license after work after revocation, you must meet the following requirements:

• the revocation. Must be completely served out before you submit your request online. If you have served out revocation. And your request to use the online process has been approved, DMV will notify you.
• for those applying by mail, you will have to wait 30 days before the revocation. And to send your request. DM the states that it can take up to 12 weeks to process a request sent by mail, so it makes much more sense to apply online.
• you must pay the free application fee.
• you must resolve and clear any suspensions on your drivers license. This means if you have any outstanding tickets and or moving traffic violations, these will need to be cleared as well.
• finally, you must pay any suspension, termination fees or civil penalties which you owe to the DMV. These will actually show up on your online application, if you're proved to apply online for restoration.

Reapplication fees.  the post-revocation reapplication fees are as follows, as of November 2013:

• $25 if you apply to restore your New York State driving privilege as an out-of-state driver and do not intend to apply for a New York State drivers license.
• $50 if you're seeking to apply for a New York State drivers license and your license was revoked before July 6, 2009.
• $100. If you are applying for a York state drivers license and your license was revoked on or after July 6, 2009.

Special notation: if you have been convicted of two or more alcohol ordered drug driving related incidents within the last 10 years, you will need to provide acceptable proof of rehabilitation. You can visit the DMV website for more information on this issue.

We hope this information has been helpful to you. For more information, you may go to the New York State DMV website http://www.dmv.ny.gov/restore

this article was prepared by attorney Anthony LoBiondo, Esquire., And is not intended to constitute legal advice or form an attorney-client privileged relationship.

To set up a free consultation concerning a DWI, criminal, or personal injury matter, contact attorney LoBiondo at (845) 569 – 7600. We welcome your inquiries.

www.LoBiondoLaw.com

Can I get a conditional License?

Again, this can be found on the NYS DMV website:

Can I get a conditional license if I was convicted of DWI or DWAI?

If you receive your first conviction for DWI or DWAI and you participate in the Drinking Driver Program (DDP), you can receive a conditional license. The DMV determines if you are eligible for the DDP. A judge can stop your enrollment in the DDP. To get complete information read the DMV brochure, The Drinking Driver Program (PDF document).

The law mandates participation in the DDP, even if the driver is not eligible for a conditional license, for convictions of specific alcohol or drug-related violations, or in specific plea-bargaining situations.

See the DMV brochure, You and the Drinking Driving Laws, for more information about DWI (PDF document).

See a complete list of NYS approved DDP programs available in PDF format. www.dmv.org

For a free consultation with DWI attorney Anthony LoBiondo, call (845) 742-7133.  24 hours a day, 7 days a week.  www.LoBiondoLaw.com, 22 years experience.

What is DWI?

This can be found on the NYS DMV website:

"

What is DWI?

Driving While Intoxicated (DWI) is a crime. In NYS, the penalties include the loss of driving privileges, fines, and a possible jail term.

Your judgment, coordination and ability to drive a vehicle change when you consume any amount of alcohol. The level of impairment depends on five conditions:

1. the amount of alcohol you drink,
2. the amount of food you eat before or while you drink alcohol,
3. the length of time you drink alcohol,
4. your body weight, and
5. your gender.

There is no quick method to become sober. The best method is to wait until your body absorbs the alcohol. The average rate that your body processes alcohol is approximately one drink per hour.

What are the alcohol and drug-related violations in New York State?

BAC = blood alcohol concentration

• DWI:  Driving While Intoxicated; .08 BAC or higher or other evidence of intoxication. For drivers of commercial motor vehicles, .04 BAC or other evidence of intoxication.
• Aggravated DWI: Aggravated Driving While Intoxicated: .18 BAC or higher.
• DWAI/Alcohol:  Driving While Ability Impaired (by alcohol); more than .05 BAC to .07 BAC, or other evidence of impairment. For drivers of commercial motor vehicles who are under age 21, .02 BAC or other evidence of impairment.
• DWAI/Drug:  Driving While Ability Impaired by a single Drug other than alcohol.
• DWAI/Combination:  Driving While Ability Impaired by a Combined Influence of Drugs or Alcohol.
• Chemical Test Refusal:  A driver who refuses to take a chemical test (normally a test of breath, blood or urine) can receive a driver license revocation of at least one year (18 months for a commercial driver) and must pay a $500 civil penalty ($550 for a driver of commercial vehicles) to apply for a new driver license. A driver who refuses a chemical test during the five years after a DWI-related charge or previous refusal will have their driver license revoked for at least 18 months (permanent for a commercial driver) and must pay a $750 civil penalty to apply for a new driver license. If the driver is under age 21, and refuses a chemical test during the five years after a DWI-related charge or previous refusal, they will have their driver license revoked for at least one year or until age 21, whichever is longer and must pay a $750 civil penalty to apply for a new driver license.
• Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC violates the Zero Tolerance Law.

What are the penalties for Alcohol-related or Drug-related Violations?

Penalties for Alcohol-related and Drug-related Violations
Violation (1)	Mandatory Fine (2)	Maximum Jail Term	Mandatory Driver License Action (3)
Aggravated Driving While Intoxicated (A-DWI)	$1,000 - $2,500	1 year	Revoked for at least one year
Second A-DWI in 10 years (E felony)(1)	$1,000 - $5,000	4 years	Revoked for at least 18-months (5)
Third A-DWI in 10 years (D felony)(1)	$2,000 - $10,000	7 years	Revoked for at least 18-months (4,5)
Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug)	$500 - $1,000	1 year	DWI-Revoked for at least six months DWAI-Drugs - Suspended for at least six months
Second DWI/DWAI-Drug violation in 10 years (E felony)(1)	$1,000 - $5,000	4 years	Revoked for at least one year
Third DWI/DWAI-Drug violation in 10 years (D felony)(1)	$2,000 - $10,000	7 years	Revoked for at least one year (4)
Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination)	$500 - $1,000	1 year	Revoked for at least six months
Second DWAI/Combination in 10 years (E felony)(1)	$1,000 - $5,000	4 years	Revoked for at least one year/18 months (5)
Third DWAI/Combination in 10 years (D felony)(1)	$2,000 - $10,000	7 years	Revoked for at least one year/18 months (4,5)
Driving While Ability Impaired by Alcohol (DWAI)	$300 - $500	15 days	Suspended for 90 days
Second DWAI violation in 5 years	$500 - $750	30 days	Revoked for at least six months
Zero Tolerance Law	$125 civil penalty and $100 fee to terminate suspension	None	Suspended for six months
Second Zero Tolerance Law	$125 civil penalty and $100 re-application fee	None	Revoked for one year or until age 21
Chemical Test Refusal	$500 civil penalty ($550 for commercial drivers)	None	Revoked for at least one year, 18 months for commercial drivers.
Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal	$750 civil penalty	None	Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers.
Chemical Test Refusal - Zero Tolerance Law	$300 civil penalty and $50 re-application fee	None	Revoked for at least one year.
Chemical Test Refusal - Second or subsequent Zero Tolerance Law	$750 civil penalty and $50 re-application fee	None	Revoked for at least one year.
Driving Under the Influence - (Out-of-State)	N/A	N/A	Revoked for at least 90 days. If less than 21 years of age, revoked at least one year.
Driving Under the Influence - (Out-of State) with any previous alcohol-drug violation	N/A	N/A	Revoked for at least 90 days (longer term with certain prior offenses). If less than 21 years of age, revoked at least one year or until age 21 (longest term).

1. Greater penalties can also apply for multiple alcohol or drug violations within a 10-year period.
2. Surcharges are added to misdemeanors ($160) and felonies ($270).
3. The driver license penalties for drivers under the age of 21, and for drivers of commercial motor vehicles and other professional drivers, are different.
4. Three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years.
5. A driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs or DWAI/Combination. Also a driver with a prior DWI, Aggravated DWI, DWAI/Drugs or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation.

Can I get a conditional license if I was convicted of DWI or DWAI?

If you receive your first conviction for DWI or DWAI and you participate in the Drinking Driver Program (DDP), you can receive a conditional license. The DMV determines if you are eligible for the DDP. A judge can stop your enrollment in the DDP. To get complete information read the DMV brochure, The Drinking Driver Program (PDF document).

The law mandates participation in the DDP, even if the driver is not eligible for a conditional license, for convictions of specific alcohol or drug-related violations, or in specific plea-bargaining situations.

See the DMV brochure, You and the Drinking Driving Laws, for more information about DWI (PDF document).

See a complete list of NYS approved DDP programs available in PDF format.

What is the Driver Responsibility Program? What is a driver responsibility assessment?

To get information about driver responsibility assessments and the Driver Responsibility Program, read the FAQs.

What is "Leandra's Law"?

Leandra's Law was signed into law on November 18, 2009 in honor of Leandra Rosado. Leandra was an 11-year old killed while she rode in a vehicle with the intoxicated mother of one of her friends. In response to this tragedy, the NYS Legislature made several changes to the Vehicle and Traffic Law (VTL). The law strengthened the penalties against motorists who drink and drive, and requires that:

• A person sentenced for Driving While Intoxicated on or after August 15, 2010 have an ignition interlock device installed on any vehicle they own or operate, and
• the driver have an "ignition interlock" restriction added to their driver license.

See additional information about Leandra's Law at the NYS Governor's Traffic Safety Committee Alcohol, Drugs and DWI page.

What are the different parts of Leandra's Law and what are the penalties for conviction?

Leandra's Law includes the following provisions:

"Aggravated DWI/Child in Vehicle."  The law establishes this new Class E Felony. The law states that no person shall operate a motor vehicle under the influence of alcohol or drugs while a child who is 15 years of age or younger is a passenger in the vehicle.

Ignition Interlock Requirement.  A court must sentence a person convicted of either Aggravated DWI/Child in Vehicle or Aggravated DWI/Driving with a Blood Alcohol Content (BAC) of .18 or More to a period of probation or to a conditional discharge. The court must require the installation and use of an ignition interlock device in any motor vehicle owned or operated by a person convicted under this law. The ignition interlock device must remain in the vehicle for at least six months.

Driving While Intoxicated.  A court that sentences a person for a Driving While Intoxicated conviction on or after August 15, 2010 must impose a conditional discharge or probation. A condition of the sentence must be the installation and use of an ignition interlock device in any motor vehicle the person owns or operates. The ignition interlock device must remain in the vehicle for at least six months.

What is an "Ignition Interlock Device"?

An ignition interlock device connects to a motor vehicle ignition system and measures the alcohol content in the breath of the operator. The device prevents the vehicle from being started until the motorist provides an acceptable breath sample.

If ignition interlock is ordered by a court, the system must be installed on each vehicle the motorist owns or operates. The device must remain installed for at least six months. The ignition interlock restriction will be added to the driver license record even if the license is revoked. The restriction will appear on the back of the driver license document as "interlock device".

Courts and probation departments will direct convicted motorists to vendors for ignition interlock installation. The Web site of the Office of Probation and Correctional Alternatives  provides details on ignition interlock device vendors and information from the manufacturers of the device." www.dmv.org

For a free consultation with DWI attorney Anthony LoBiondo, call (845) 742-7133.  24 hours a day, 7 days a week.  www.LoBiondoLaw.com, 22 years experience.

What is Leandra's Law? The heightened criminal consequences for DWI with a child in the car

Obviously, a person should not be driving intoxicated with a child in the car.  That being said, the passage of Leandra's Law makes driving with a child in the automobile, while intoxicated, an even more serious offense.

Leandra's Law makes it a crime to operate a motor vehicle when a child less than 16 years old is present in the automobile as well as when other factors exist. The fine ranges from $1,000 to $5,000.  Moreover, because the Leandra's Law offenses are felonies, the penalty can be state prison.

Driving while intoxicated or impaired by drugs when a child, fifteen years old or younger, is in the vehicle, is an "E" felony, punishable by up to four years in prison for a first time offender

Driving while intoxicated or impaired by drugs when a child, fifteen years old or younger, is in the vehicle and that child sustains a "serious physical injury" as defined by the New York Penal Law, It is a "C" felony, punishable by up to fifteen years in prison for a first time offender, 

In addition to the penalties for this crime, if you are a parent, the police or prosecutors are required to report your arrest for drunk driving - DWI or DUI - if your fifteen year old or younger child was in the vehicle. This report is made to the Statewide Central Register of Child Abuse and Maltreatment.

Anthony LoBiondo

www.LoBiondoLaw.com
For a free consultation with DWI attorney Anthony LoBiondo, call (845) 742-7133.  24 hours a day, 7 days a week.  www.LoBiondoLaw.com, 22 years experience.