Published on:

DPCA developed the form to remedy perceived shortcomings in the statute


This matter is before the Court for sentencing under Leandra’s Law New York’s newest anti-DWI measure wherein the defendant pled guilty to DWI driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3).

One month after the DWI death of 11-year-old Leandra Rosado in New York City, the State enacted Leandra’s Law on 18 November 2009 requiring all first-time, misdemeanor DWAI 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 court faces the issues to be considered 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. Moreover, the court 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. Accordingly, failure to pay for the interlock may prompt imprisonment.

It should be noted that the interlock costs are 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, a subdivision of the Division of Criminal Justice Services 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. DUI was involved.

Because not everyone sentenced to interlocking can afford it, the Department had to contrive a means to pay for interlocking for indigent drivers. Rather than having local governments finance them, the Department insisted that the “qualified manufacturers” pay for them.

During the application process, manufacturers supply proposed fee structures that must take into consideration and be based upon an anticipated ten percent (10%) waiver of the fees by sentencing courts due to operator unaffordability. The ten percent figure derives from the Department’s speculation based upon the experience of other states.

The Criminal Defendants claiming indigency are obliged to seek a payment waiver from the court. To obtain the waiver, they must complete and submit to the court a financial history/status form prepared by the Department designed to aid the court’s indigency determination. Curiously, the law supplies no indigency metric to guide the court nor is the court obliged to use the financial history form in making its determination. Ironically, DPCA developed the form to remedy perceived shortcomings in the statute as the statutory language does not refer to indigency’ nor contain other limiting criteria based upon prescribed income levels or guidelines, including federal poverty, food stamps and participation in other government assistance programs, DPCA developed the Financial Disclosure Report form to provide the judiciary with information to better gauge whether the operator has resources to pay for device installation and maintenance.

As of 15 July 2010, the Department has approved seven qualified manufacturers, and, via memorandum, has published a list of each provider’s prices for services.

The costs are not final, however. Besides, setting up the possibility of annual rate increases. Moreover, nothing in Part 358.5 prohibits manufacturers from increasing operator prices mid-contract.

The legislature’s failure statutorily to fix the ignition interlock costs presents a significant due process problem because potential offenders and the general public cannot determine the punishment for violating the law, given that ultimate interlock costs are subject to administrative fiat.

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.

It should be noted that the “final” price list for interlock services hasn’t been filed. 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.

Also, the publication requirement is simple and obvious- rules and regulations to which citizens are held accountable must be available 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. The court finds that neither of which is persuasive. First, it might argue that t 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. Part 358.5, which governs the approval process of prospective interlock manufacturers, requires those applying for certification provide “fee structure information… including any and all fees charged to the operator, including but not limited to installation fee, monthly fee, any special service fees, shipping fee, and de-installation fee. The proposed fee structure shall take into consideration and be based upon an anticipated ten percent (10%) waiver of fees by sentencing courts due to operator unaffordability.” Accordingly, the Department might contend, the fees needn’t be published to be lawful.

It should be emphasized that 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.

The court finds that because Department has failed to submit a determinate list of applicable fines for publication by the Secretary of State, the Court cannot compel the defendant to pay for interlocking.

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.

The court notes that the legislative enactments are presumed constitutional unless they imperil exercise of a fundamental right or lack a rational basis.

Because New York does not recognize licensed driving as a fundamental right, the Court employs rational basis scrutiny in examining the law. The State’s failure to afford judges any guidance for determining indigency invites chaos. The lack of DWI guidance has another potential and troubling implication. It could be used to pressure courts to help maintain the indigency-waiver system the Department has devised by suggesting that issues of systemic integrity should inform indigency determinations. That is, judges might fear that granting too many indigency waivers could undermine the ignition interlock program by making it unprofitable for manufacturers.

Consequently, Part 358.8 is fatally defective because it affords courts seeking to apply it no guidance in determining indigency. The sections of it requiring the Court to make indigency determinations are therefore invalid. Accordingly the Court cannot grant indigency waivers to anyone seeking them.

Next in consideration is 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 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.”

The court notes that licensed driving was a privilege, not a right, under Pennsylvania law and submitting the requirement to a rational basis equal protection analysis, the Criminal Court dispatched the all-auto requirement. The court finds that 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.

It does not take long to come up with numerous examples of just how arbitrary and unreasonable the classification in Act 63 is when applied to owners of multiple vehicles. The court finds it nonsensical, nor does it serve any legitimate purpose, to require an offender’s spouse, or other person the offender owns a vehicle with, to operate that vehicle equipped with an ignition interlock device so that DUI offender can operate a similarly equipped separate automobile. Nor is it rational to have the offender’s child, attending college, equip a vehicle being used at school with such a device, simply because it is titled in the parent’s name.

Accordingly, the court invalidates the requirement that those obliged to drive interlocked cars must install an interlock in every car they own or operate. Instead, they need only install the device in any car they operate.

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 court has two reasons. 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.

The court sentences the defendant to pay a $500 fine and a $395 surcharge-victim fee and revokes his driver’s license for six months. He is given a conditional discharge to take and complete successfully a DWAI Drinking Driver 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.

For your questions regarding the case mentioned above, contact Stephen Bilkis & Associates. A huge team of experts await you. New York Driving While Intoxicated Attorneys or the so called New York DWI Attorneys at our firm are the best in the country. Our New York Criminal Attorneys are more than willing to assist you.

Posted in:
Published on:

Comments are closed.

Contact Information