Stephen Underwood:
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?
(The following is from a free program called crimetimethat calculates the sentencing guidelines for New York State Penal Laws.)
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.