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DCJS’ regulation


A New York DWI Lawyer said that, this matter is before the Court for sentencing under The Defendant pled guilty to driving while intoxicated pursuant to Vehicle and Traffic Law § 1192(3).

A New York Criminal Lawyer said that, the State enacted Leandra’s Law November 18, 2009, roughly one month after the DWI death of 11-year-old girl in New York City. It demands, inter alia, that all first-time, misdemeanor DWI offenders install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra’s Law exhibits numerous defects imperiling its constitutionality.

The issue in this case is whether the Leandra’s Law is constitutional.

The issues to be considered stem primarily from the State’s failure to establish determinate ignition interlocking costs. The first is whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment. That issue informs a related, New York constitutional concern whether the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Next, we will examine whether the lack of a statutory metric for determining a defendant’s ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement. Also at issue on equal protection grounds is whether requiring defendants to interlock every auto they own or operate is justifiable.

Section 4(a) of the amended Vehicle and Traffic Law § 1198 requires those convicted finance ignition interlock installation and maintenance unless the sentencing court determines they cannot afford to do so. The DUI law classifies the installation and maintenance costs as a criminal fine. Accordingly, failure to pay for the interlock may prompt imprisonment. Notwithstanding their status as criminal fines, the interlock costs are ultimately indeterminate. This indeterminacy stems from the intentionally open-ended manner by which the State chose to calculate them. The New York Division of Probation and Correctional Alternatives (DPCA) (now known as the Office of Probation and Correctional Alternatives (OPCA), a subdivision of the Division of Criminal Justice Services (DCJS, the Department)) created a regulatory scheme whereby private companies, following an application and approval process, contracted with the State to provide and maintain interlock services. The prices they charge conform to a “maximum fee/charge schedule with respect to all operator’s costs associated with such devices”.

Because not everyone sentenced to interlocking can afford it, the Department had to contrive a means to pay for interlocking for indigent drivers or, “operators”. Rather than having local governments finance them, the Department insisted that the “qualified manufacturers” nominally, at least pay for them: The new law establishes that the court, upon determining financial “unaffordability” to pay the cost of the device, may impose a payment plan with respect to the device or waive the fee. New Vehicle and Traffic law statutory provisions require that where the cost is waived, DCJS through its regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. Accordingly, DCJS’ regulation requires qualified manufacturers, and not local governments or taxpayers to bear such costs.

Here, the ambiguity lies in the fact that the State failed to provide constitutionally-required notice of the interlock fine amounts facing DWI convicts, given DCJS can, at its discretion, raise interlock rates. Because the Defendant hasn’t been afforded such notice, lenity forbids the Court from ordering him to finance interlock installation and maintenance. Instead, the State must find an alternative funding source for any interlock device the Defendant is required to install and maintain.

Compounding the notice problem is the fact that the “final” price list for interlock services hasn’t been filed with New York’s Secretary of State. Instead, the latest filing provides only an estimate of the interlock costs.

Such failure violates New York’s Constitution, which requires that newly-enacted rules be filed with the Secretary of State for effectuation. The publication requirement is simple and obvious: rules and regulations to which citizens are held accountable must be available to them: The Constitution, in the clearest of language, requires that every rule and regulation made by board, bureau, officer, authority or commission except such as relates to the organization or internal management’ of such office or agency be filed in the office of the Department of State if it is to be effective. We know that underlying the criminal provision was the desire to have all rules and regulations affecting the public filed in one, easily available, central place. We should not strive to read exceptions into the section or construe it so as to permit the official in charge of the bureau, commission or authority to avoid the necessity of filing by attaching the label order’ or statement of policy’ or some other term to what is essentially a DWAI rule or regulation. The spirit and design of the constitutional provision are best effectuated by requiring the administrator, if he wishes the rules and regulations of his agency or department to be effective, to file them no matter what label is assigned to them.

That the State has designed the system such that no final cost can be ascertained does not suspend its obligation to publish a statement of those costs, given that it elected to classify them as criminal fines.

The Department might contest the publication requirement related to costs on two grounds, neither of which is persuasive. First, it might argue that the master fee list does not constitute a “rule” per new York State Administrative Procedure Act § 102, which excludes from the publication requirement “any fee which is established through negotiation, written agreement or competitive bidding, including, but not limited to, contracts, leases, charges, permits for space use, prices, royalties or commissions.” Accordingly, the Department might contend, the fees needn’t be published to be lawful.

But for constitutional notice requirements, this analysis might survive. However, as explained above, due process requires that criminal laws be drafted so as to inform the public of the scope of punishment for those convicted. Failure to notify the public of the master fee schedule is failure to specify the possible fines facing violators of Vehicle and Traffic Law § 1192. Due process requires such publication.

Accordingly, the Department would contend, the ambiguity permitted in this matter concerning reimbursement rates covers should permit a similar gloss in this case, and the publication requirement is satisfied so long as the motoring public has some indication of the interlock costs associated with DWI convictions.

The State’s failure to provide adequate legal guidance to judges making indigency determinations threatens defendant’s right to equal protection of the law. Equal protection of law demands that similarly situated persons receive equal treatment under the law. The state denies equal protection “when it treats persons similarly situated differently under the law, and this difference may be created by the grant of a preference as well as by the imposition of a burden. That said, legislative enactments are presumed constitutional unless they imperil exercise of a fundamental right or lack a rational basis:

The State’s failure to afford judges any guidance for determining indigency invites chaos. Similarly situated defendants statewide have no assurance their financial circumstances will receive similar treatment because every court enjoys essentially standard less discretion in determining ability to pay. Indeed, courts need not even consider the financial history information the Department obliges defendants seeking a waiver to complete for determining waiver eligibility. Such is a textbook equal protection violation, because the State provides no principled way for apportioning criminal fines among similarly-situated defendants.

We next consider whether the requirement that defendants install an interlock device in every auto they own or operate violates the equal protection clauses of the federal and New York constitutions. Vehicle and Traffic Law § 1193(1)(b)(ii) demands that “the court shall also sentence such person convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of this article to a period of probation or conditional discharge, as a condition of which it shall order such person to install and maintain, in accordance with the DUI provisions of section eleven hundred ninety-eight of this article, an ignition interlock device in any motor vehicle owned or operated by such person during the term of such probation or conditional discharge imposed for such violation of section eleven hundred ninety-two of this article and in no event for less than six months.”

Notwithstanding the supplicant posture rational basis scrutiny obliges (discussed above), the Court is skeptical of the all-auto requirement, for reasons the Pennsylvania Court of Common Pleas provided when addressing the same requirement in a Pennsylvania ignition interlock statute. After determining that licensed driving was a privilege (not a right) under Pennsylvania law and submitting the requirement to a rational basis equal protection analysis, the Court dispatched the all-auto requirement: Applying the above analysis to Act 63, we are satisfied that to treat offenders differently based upon the number of vehicles owned by each creates an arbitrary classification which does not bear a fair and substantial relationship to the object of the legislation. Legislation that prohibits a multiple DWI offender from operating a vehicle that is not equipped with an ignition interlock device would be reasonable. Legislation that prohibits the offender from operating a vehicle equipped with the ignition interlock device unless every vehicle the offender owns is also equipped with such a device is neither reasonable nor does it bear a rational relationship to the ultimate goal of limiting the driving privilege of the offender. Likewise, to require the offender to actually own a vehicle that is equipped with the device in order to secure a restricted license bears no reasonable relationship to the object of the legislation.

In sum, the Court holds the defendant cannot be obliged to pay for any ignition interlock device to be installed on any automobile he or she owns or operates. The reason for this is twofold. First, the State has failed to provide adequate notice of the costs related to interlock installation and maintenance. Second, no final, determinate interlock cost list has been properly filed with New York’s Secretary of State, as New York’s constitution requires. If the State seeks to have interlocks installed in defendant’s automobile(s), it must find alternative funding sources to do so. Additionally, the Court holds that Part 358.8 of Title 9 NYCRR and Vehicle and Traffic Law § 1198(4) are unconstitutional to the extent that they require the Court to make indigency determinations without a statutory metric for ascertaining indigency. Accordingly, the Court will grant no indigency waivers. Lastly, the Court holds that Vehicle and Traffic Law § 1193(1)(b)(ii)’s requirement that defendant install interlocks in every car he owns or operates is unconstitutionally overbroad and therefore limits the installation requirement to any car a defendant chooses to operate.

Accordingly, the court held that, the Criminal Defendant is sentenced to pay a $500 fine and a $395 surcharge-victim fee. His driver’s license is revoked for six months. He is given a conditional discharge to take and complete successfully a Drunk Driving Program authorized by New York State within one year. Moreover, for a six month period, he is prohibited from operating an automobile without an ignition interlock. He has ten (10) business days from today to have an ignition interlock installed in any auto he chooses to drive. He may have a twenty (20) day extension of his license.

If there is a law concerning DWI crime, seek the help of a New York DWI Attorney and New York Drunk Driving Attorney at Stephen Bilkis and Associates in order to determine its constitutionality.

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