NY DWI Repeat Offenders: New DMV Rules in 2012

In my previous post I covered the phony emergency and bureaucratic end run in the new NY DMV DWI rules.

Now let's get into the meat of the new rules, all of which can be seen on the DMV Proposed Rules page (for now).

Update: A number of people have called me asking what they can do about their situation. A friend of mine, Eric Sills, is working on challenging the new regulations. His office phone is 518-456-6456.

I'll start with the one that will affect the most people.

DMV rule 134.10(b) covers the process of getting your full license back after completing a rehabilitation program, commonly referred to as the DDP (Drinking Driver Program (pdf)). The amended language excludes you if you have:

two or more alcohol or drug-related driving convictions or incidents within 25 years from the date of enrollment in the program.

Here's an extreme scenario: In 1996 when you were 20 years old, you were arrested with a blood-alcohol content of 0.02 and convicted of VTL 1192-a - the Zero Tolerance Law.  In 2020 you're arrested for a DWI with a 0.06 BAC (I've seen it happen). Not knowing any better, you plead guilty to the DWI and your license is revoked. When you go to get your license restored, DMV refuses because of that 24-year-old zero tolerance conviction.

Anyone who's had any kind of DWI case in the past 25 years (and going forward) may face this problem. Most people in this situation will have a conditional license that lets them do most of the driving they need, but it will create significant problems for some.

We don't know the precise numbers in NY, but you might be surprised how many people have something on their record. According to a Minnesota DPS report (pdf, page 22), over 10% of their drivers have one. I've seen other numbers putting it as high as one in seven. If you live on a street with 20 houses averaging 2 drivers per home, then on average you've got about 5 neighbors who have a DWI history.

Part of the problem with the new rules are the broad definitions relating to "dangerous" drivers. Second 132.1(a):

Alcohol- or drug-related driving conviction or incident means a conviction of a violation of section 1192 of the Vehicle and Traffic Law, a finding of a violation of section 1192-a of the Vehicle and Traffic Law, a conviction of an offense under the Penal Law for which a violation of section 1192 of the Vehicle and Traffic Law is an essential element, or a finding of refusal to submit to a chemical test under section 1194 of the Vehicle and Traffic Law, not arising out of the same incident.

This includes anything under Section 1192. That's not shocking, but it includes the non-criminal DWAI offense under 1192(1), which is generally cases with BAC under 0.08, and widely perceived as far less serious than Aggravated DWI 1192(2-a) with BAC of 0.18 or higher. Treating these two offenses as the same is questionable.

The definition also includes 1192-a - the Zero Tolerance Law which is for a BAC as low as 0.02 for a young driver. Do we really want to punish people in their 40s for driving after one beer in their late teens?

And the definition includes "finding of refusal to submit to a chemical test." These findings are made with nowhere near the procedural protections one gets in a criminal case. The "hearing" is held in a tiny room in a DMV office. There is no jury. The decision is made by an Administrative Law Judge (ALJ). He (usually male) is an employee of the DMV, not like a judge in the court system. There is no discovery - zip, zero, nada, none. Your right to cross-examine the police officer is limited by the whim of the ALJ. Some of the ALJs are fair. Some aren't. If you can't afford a lawyer you don't get a public defender. You do have the right to an attorney, but many people don't know what their rights are. In a criminal proceeding the judge is required to instruct you about your rights. Most people don't even go to the hearing, and they lose even when they're innocent.

There's more in the definitions, but what matters here is how this impacts people. The new regulation under Section 132.2 calls for a "lifetime record review" of anyone convicted of a "high-point driving violation," which is defined as any violation of five or more points, such as passing a stopped school bus, reckless driving, and speeding more than 20 mph over the limit. If the review shows enough relevant convictions or incidents in the driver's lifetime, or a different threshold in the past 25 years, then their license will be revoked. And they might never get it back.

Here's the extreme situation. Ralph had a bad run in his teens and 20s. He had a zero tolerance violation at 19. He had four more convictions or incidents in his 20s. He served his time, paid his debt to society, etc.

Fifty years later Ralph is driving south on the Northway and doesn't notice the speed limit dropped from 65 to 55 mph. He gets a ticket for 76 in a 55. Ralph mails in a plea of guilty and pays the fine. The lifetime record review ensues. Because of the five convictions/incidents from fifty years ago, Ralph's license is revoked.

But wait ... there's more. Ralph applies to have his license reinstated after the revocation period is up. New regulation 136.5(b)(1) requires states: "the Commissioner shall deny the application." Ralph just lost his license permanently because of a recent 76 in a 65 and his bad behavior that happened fifty years ago.

Really what's happening is Ralph is being punished again for what happened long ago. That's not what the Courts will say. They'll say this isn't punishment. It's not a penalty at all, just an administrative remedy.

If the individual doesn't have five incidents in his lifetime, he can still get hit if he has three convictions or incidents in the past 25 years, plus one or more serious driving offenses. The definition of "serious driving offense" is also troubling:

Serious driving offense means (i) a fatal accident; (ii) a driving-related Penal Law conviction; (iii) conviction of two or more high-point driving violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part; or (iv) 20 or more points from any violations, other than the violation that forms the basis for the record review under Section 132.2 of this Part.

The fatal accident one sounds serious, but it doesn't say it has to be the driver's fault. And one can have a fatal accident arising out of a minor driving offense.

A "driving related Penal Law conviction" is vague. Does that include a marijuana violation resulting from a traffic stop? Or a shoplifting arrest that occurs after you started driving away from the store? What if you drive away from the gas station without paying for the gas? This may not be a big concern because it's not clear if the DMV's system tracks such convictions.

Then we have "conviction of two more more high-point driving violations." So if you had two of the 76/55 speeds in the past 25 years, you're on the hook. Or with the last category, you could get one ticket every four years for 66 in a 55 (11 mph over). Each counts for four points. You'd have 20 points in 20 years.

So, like Ralph's situation, 22 years ago you had a bad run. You got a couple DWAIs and a DWI. As a part of that you also got a couple speeding tickets or other point-bearing violations. Then you had a couple of low speeds 15 years ago. Now you get your 76/55, the record review, and you're revoked. Under 136.5(b)(2), your application for reinstatement will be denied - permanently. Again, the individual is being punished not for the 76 in a 55, but for the long ago conduct.

There's more in these rules, including situations where an ignition interlock device would be required for someone who is getting their license back. That's complicated and we've covered quite a bit here already.

This is all very new, and I may have missed something. I certainly appreciate any comments, suggestions or corrections.

DWI: A Problem With Plea Bargaining Policies

As a criminal defense lawyer sometimes we get cases where we have pretty good but not overwhelming evidence that our client is innocent.

In some counties, I contact the prosecutor and explain the evidence. Sensible prosecutors will agree to a deal where my client pleads guilty to a lesser offense that's better than the original charge. Yes ideally it would be dismissed but this compromise tends to make everyone happy.

Then there are counties where the District Attorneys have strict plea bargaining policies.

An example is a recent DWI case where we had great evidence. Police documents indicated our client may not have been driving (something they have to prove beyond a reasonable doubt). On video, one of the cops said he was surprised the breath test result was so high because our client seemed sober. And he looked and sounded completely sober. This took place in a county where the DWI has a strict policy on plea bargaining for DWI cases. Due to policy, the only offer was for our client to plead to the charge (link is to a previous post about such policies).

A reduction to DWAI would have been reasonable and my client would have accepted it. I'd prefer a dismissal or a better deal of course, but it would have been reasonable.

Since that was not possible, we did not discuss the evidence with the DA. We simply prepared for trial. When trial came, the flaws suddenly became apparent and the case was dismissed.

The policy led to a lot of waste. My client spent a lot of time and money. The judge and court staff wasted time. So did the prosecutors. If they made deals on cases like this, they'd have more time for the stronger and more important cases. This is a DA's office that has blown some big ones.

Perhaps the worst, about 30 prospective jurors sat in court for hours.

I appreciate the concern about drunk drivers. Through my work I've seen the harm more than most. But the punitive approach is wrong, especially with defendants who have clean records. The focus should be getting drunk drivers off the road and into treatment. Plea bargaining accomplishes that.

NY, DWI, Ignition Interlock, and MADD

Great story on Capital News 9 last night. The NY State Assembly has a bill (A-7196) that would require ignition interlock devices for everyone convicted of DWI. Specifics from the bill are below.

In the News 9 story, Laura Dean-Mooney of MADD said: "If there are detectable levels of alcohol, their car simply will not start." So in other words, if you have any alcohol on your breath whatsoever, even if you're not impaired, your car will not start. Now some of you are thinking that this is only for people who have been convicted of DWI. Rest assured that MADD will not stop there. As Dean-Mooney put it:

This ... is a good start, but she hopes technology similar to the device could come to be ... in all cars ... that will ultimately eliminate drunk driving.

Let's be clear folks - MADD wants to put devices in your cars that will require you to blow into a device, and if it shows detectable levels of alcohol, your car won't start. Their goal is to do this for everyone.

Keep in mind that breath tests are unreliable. See my recent post on breath test videos. You won't be able to drive if you had a glass of wine with dinner. Cough syrup could be a problem. And if you had some bread, well your car still might not start.

But let's get to the substance of the bill. It would create a new Section 1198 of the Vehicle and Traffic Law (repealing the current version). First, it expands the ignition interlock program to DWAI. The current 1198 does not permit courts to impose the device on a DWAI offender. The new bill doesn't mandate ignition interlock for a DWAI offender, but it does make it an option for the judge (1198(2)(B)). It's not hard to imagine some prosecutors (cough ... Soares ... cough cough) requiring the device for any DWAI plea bargains.

For DWI, there is an interesting trade-off. 1198(2)(E) mandates a sentence of "conditional discharge" and probation for a first DWI offense, with the ignition interlock device a condition. Apparently this means you can't get jail time for a first DWI offense (currently up to a year under 1193), as a conditional discharge usually means no imprisonment. But you can still get 15 days on a DWAI.

The BAC involved determines how long you have to use the device per (E)(1). For BACs from 0.08 to 0.11, it would be three months; from .12 to .17 it's six months; and for .18 and up it's a year. The period starts when you first get a conditional or restored license to drive. It's not clear how this would apply to a "common law DWI" conviction under 1192(3) where there is no BAC.

For a second offense, under (E)(2), you don't get the discharge, and probation is mandatory with three years of the device, though here the three years seems to start at sentencing. For a third offense it's 5 years. For the 4th offense it's required for 10 years to life.

One interesting detail: With DWI it usually matters how long ago your previous conviction was, but not with this bill. If you had a DWI more than 10 years ago, a new offense is not treated as a second offense. But for purposes of the ignition interlock device it now will be.

The bill also adds a $50 surcharge to which will fund the ignition interlock program. I knew they'd find another way to raise taxes.

Oh, by the way, I've seen estimates that renting an ignition interlock device costs up to $100/month. The Sens-O-Lock is $95/month plus taxes and other costs if it's for less than a year. So add another $1200 to the cost of a DWI conviction.

DWI Consequences: Travel to Canada

DWI lawyers frequently get clients who just want the case over with. We lawyers can usually get the charge reduced to DWAI. Then everything's hunky-dory, right?

Here's a sobering lesson from a client who took a DWAI:

is there ANY WAY to get this charge changed to something else?? i cross the canadian border A LOT for work, and every time i cross i have to pay $200 canadian, and risk not getting in as it's at the will of the border patrol officer. if there is anything i can do to change the charge on my record, or clear my record completely...i'd be willing to partake in anything, or do/pay anything to make that happen. please advise me on this, as it's a really really important part of my job that i be able to cross the border with no problems.

i hate that this one thing is goin to haunt me for years and years. let me know if you know of anyting i can do.

Read more at this Canadian immigration FAQ.

Another reason not to drink and drive; and to fight any DWI charge.

Albany Lawyer on TV again -- Video Link

Thanks to Liz Bishop for interviewing me about DWI and DWAI cases. The video is here.

You can also read my blog post about it on my other blog: Stop Wasting Money on DWI.