Articles Posted in DWI / DUI

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Leandra’s Law a Reality: Current Misdemeanor DWI to Become Felony if Child in Vehicle

There are a couple of factors that determine the severity of the charge against you. For one, the law considers the number of DWI offenses you’ve actually been convicted or plead guilty to. First offenses are not treated nearly as harshly as subsequent offenses and the penalties get much worse each time you break this law.

Under the New York Penal Law, operating a motor vehicle while under the influence of alcohol or drugs. 1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. 2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. 2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article. (b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle. (Leandra’s Law) 3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

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Another consequence of a DWI conviction is the effect on your automobile insurance. Automobile insurance, as you probably know is required by law, but insurance companies are in business to make money, and the rate you pay for car insurance is based on risk, risk that you will be involved in accidents which cause property damage or personal injuries. A DWI conviction means that you will be considered a high risk and your insurance premiums will be higher as a result.

The tool linked on our DWI / DUI web page, should not be used as a means to guide you as you are drinking to ascertain whether you are “ok” to drive. There are too many factors that need to be taken into consideration and in no way will this calculator give you an exact determination of your BAC. Under no circumstance should it be relied on for that purpose. Instead, the calculator is a means to get a general understanding of the relationship between your weight, type of alcohol, amount of alcohol and time of consumption on your BAC.

After a person is convicted or pleads guilty to a DUI (or DWI) offense, the appropriate legal punishment is determined at the sentencing phase. A number of different kinds of penalties may be imposed on a person convicted of DUI, including:

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New Driving While Intoxicated (DWI / DUI) Blood / Breath Alcohol Content (BAC) Calculator: Understand the Factors Impacting Your BAC Before You Need a Criminal Lawyer

There are a couple of factors that determine the severity of the charge against you. For one, the law considers the number of DWI offenses you’ve actually been convicted or plead guilty to. First offenses are not treated nearly as harshly as subsequent offenses and the penalties get much worse each time you break this law.

If you submitted to a chemical test of your blood (the most common method being a breath test) and “scored” .08 BAC or more, your license shall be suspended at arraignment. This is called a Suspension pending Prosecution (NY VTL §1193[2](e)(7)).

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Leandra’s Law Is Official: New York VTL 1192.2-a(b) / VTL 1192(2a)(b) Makes it a Felony to Drive Drunk (DWI / DUI) with a Child 15 Years Old or Younger

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 criminal penalties against motorists who drink and drive, and requires that any person sentenced for Driving While Intoxicated on or after August 15, 2010 must have an ignition interlock device installed on any vehicle they own or operate the driver will have an “ignition interlock” restriction added to their driver license

The law established a 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.

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Current Misdemeanor DWI to Become Criminal Felony if Child in Vehicle

There are a couple of factors that determine the severity of the charge against you. For one, the law considers the number of DWI offenses you’ve actually been convicted or plead guilty to. First offenses are not treated nearly as harshly as subsequent offenses and the penalties get much worse each time you break this law.

Under the New York Penal Law, operating a motor vehicle while under the influence of alcohol or drugs. 1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. 2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. 2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article. (b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle. (Leandra’s Law) 3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

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The Court held that the Court of Appeals erred in affirming the exclusion of respondent’s initial statement and the gun because of Officer Kraft’s failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, it also erred in affirming the exclusion of respondent’s subsequent statements as illegal fruits of the Miranda violation. This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.

Although criminal respondent was in police custody when he made his statements and the facts come within the ambit of Miranda, nevertheless on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, as long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it.

The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

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Under the law, the Miranda warning, also referred to as Miranda rights or Miranda rule, is a right to silence warning given by police in the United States to criminal suspects in police custody or in a custodial interrogation before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. The Miranda warning is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination.

Miranda Rights were created in 1966 as a result of the United States Supreme Court case of Miranda v. Arizona. The Miranda warning is intended to protect the suspect’s Fifth Amendment right to refuse to answer self-incriminating questions.

It is important to note that Miranda rights do not go into effect until after an arrest is made. The officer is free to ask questions before an arrest, but must inform the suspect that the questioning is voluntary and that he or she is free to leave at any time. The answers to these questions are admissible in court.

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http://www.newyorkcriminallawyer-blog.com/2009/11/new-york-to-have-toughest-dwi.html

New York to Have Toughest DWI / DUI Law on the Books? Leandra’s Law Target’s Driving While Intoxicated with Passengers under 15

Under the New York Penal Law, operating a motor vehicle while under the influence of alcohol or drugs. 1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. 2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. 2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article. (b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a child who is fifteen years of age or less is a passenger in such motor vehicle. (Leandra’s Law) 3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

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When this provision was renumbered from subdivision seven to Vehicle and Traffic Law § 1192 (6) in 1988, the statutory language remained largely the same. However, the bulk of the enabling language was incorporated into the body of the statute — providing that the subdivision would only be applicable to convictions occurring after 29 November 1985 (L 1988, ch 47, § 18). The primary difference in the statutory language was the omission of the term “out-of-state.”

The subdivision was again renumbered to Vehicle and Traffic Law § 1192 (8) (L 1990, ch 173, § 62), where it appears today.

As noted above, the 2006 amendments ended the practice of treating all prior out-of-state criminal convictions as mere traffic infractions under New York law. Rather, for purposes of determining penalties, a prior out-of-state conviction is now treated as a conviction of the equivalent conduct under New York law. In addition, the amendment again moved the date restrictions, this time from the statute to the enabling language.

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It should be noted that the issue in the case at bar is the interpretation of Vehicle and Traffic Law § 1192 (8), as amended in 2006. The statute reads as follows:

“A prior out-of-state conviction for DWI operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section xxx provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section”

The subdivision further provides that, if the out-of-state conduct would have been a violation of § 1192 had it occurred in-state, but would not have constituted a criminal misdemeanor or a felony, the conduct will be deemed a prior conviction of driving while ability impaired for purposes of determining the appropriate penalties under Vehicle and Traffic Law § 1192 [8].

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