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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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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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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The court, in this appeal, is faced with the issue of whether Vehicle and Traffic Law § 1192 (8) allows an out-of-state conviction occurring prior to 1 November 2006 to be considered for purposes of elevating a charge of driving while intoxicated from a misdemeanor to a felony.

The court holds that it does not.

Pursuant to Vehicle and Traffic Law § 1192 [3] and Penal Law 195.05, the Defendant was indicted for driving while intoxicated as a felony and for obstructing governmental administration in the second degree for acts committed on 22 February 2007. As the basis for elevating defendant’s driving while intoxicated charge to a felony, the People filed a special information charging that defendant had a 1999 conviction for driving with an unlawful alcohol concentration in the state of Georgia, which would have been a violation of Vehicle and Traffic Law § 1192 (2) had it occurred in New York.

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In a civil forfeiture action, the defendant appeals from a judgment of the Supreme Court, Nassau County, which, upon an order of the same court, searching the record and granting summary judgment in favor of the plaintiff, declared that the defendant had forfeited all right, title, and interest in a certain 1996 Mazda automobile.

A Nassau County Criminal attorney said that the defendant was arrested for misdemeanor driving while intoxicated (hereinafter DWI). Incident to the defendant’s arrest, her 1996 Mazda automobile was seized. The defendant pleaded guilty to the lesser charge of driving while ability impaired (hereinafter DWI) as proscribed by Vehicle and Traffic Law 1192(1), a traffic infraction. Thereafter, the plaintiff, County of Nassau, commenced this action for the forfeiture of the defendant’s car

It is well settled that automobiles operated by intoxicated drivers may be seized and sold pursuant to civil forfeiture laws. Pursuant to section 8-7.0(g) of the Nassau County Administrative Code, “instrumentalities of a crime” seized incident to arrest, are subject to civil forfeiture upon conviction of a misdemeanor, crime, or petty offense. Notwithstanding that Vehicle and Traffic Law 155 provides that traffic infractions are not crimes, Criminal Procedure Law 1.20(39) defines a petty offense to include traffic infractions. The defendant’s sole contention that, because a traffic infraction is not a crime pursuant to the Vehicle and Traffic Law, it cannot serve as a predicate for civil forfeiture, is a non sequitur.

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The defendant is charged with violating the Vehicle and Traffic Law, which in part states that any person operating a motor vehicle, who knowing that damage has been caused to personal property of another, due to the culpability of the person operating such motor vehicle leaves the place where the damage occurred without stopping, and exhibiting his license, is guilty of a misdemeanor. He moves for a dismissal of the charge following a preliminary hearing.

The credible evidence at the hearing held disclosed that the defendant had, under circumstances which he did not choose to explain, left the automobile which he had been driving and that the automobile, with its engine running had then collided with a parked motor vehicle. The arresting officer testified that he had heard the noise of a collision between the driverless automobile and the parked automobile.

There is no question that, at the time of the impact, the defendant was not in the automobile which he had been driving up until a few seconds before the collision.

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People v. Durham

Court Discusses Whether the Trial Judge Improperly Allowed Unauthorised Information Prohibited by the Sandoval Hearing

The defendant was convicted of driving while intoxication, DWI, and appealed on the ground that he did not have a fair trial. The defendant’s contention was based on the ruling of the Sandoval hearing versus what took during trial. The hearing held that if the defendant were to testify, he could be testified about his previous conviction of criminal possession of stolen property in the third degree in 1979, criminal possession of stolen property in the third degree in 1984, and operating a motor vehicle while intoxicated as a felony in 1984. The court allowed the prosecution to make inquiries into fact that there was a conviction of a class E felony in 1984 for operating a motor vehicle while intoxicated, but there could be no inquiry into the underlying facts of that conviction. The prosecution was not permitted to cross-examine the defendant on previous uncharged crimes. When the defendant testified, he denied intoxication and stated that he had experienced a dizzy spell and pull over onto the roadside. The defendant further stated he was yanked from the vehicle and lost consciousness while the police office stuck his head to the roof of the vehicle. The prosecution asserted that the defendant was driving with a suspended license and he did not produce any indicia of ownership of the car when demanded by the arresting officer after the objection by the defendant’s Queens County Criminal Attorney. The court allowed the prosecution to question the defendant about the indicia of ownership of the car. The evidence of the uncharged crimes was not directly relevant to the question of whether the defendant committed the crime charged, and went only to credibility.

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