DWI Defense in New York - Prior Out of State Convictions
One of the consequences of a
DWI Misdemeanor conviction is that a second DWI arrest within ten years will be treated as a felony
in New York. Many questions arise in Westchester County or other jurisdictions
about out of state DWI convictions and how New York State treats those
out of state convictions with respect to a
felony DWI charge in New York.
The best DWI defense attorney will research the out of state conviction
to determine if the New York misdemeanor or felony charge is appropriate.
Since Westchester, Rockland, Orange, Putnam and the Bronx are alleasy
driving distance from Connecticut or New Jersey this is a more common
analysis that needs to be done by the DWI
criminal defense attorney.
People v Ballman, 15 NY3d 68 (2010), the New York State Court of Appeals addressed the
issue of out of state convictions and how New York DWI laws apply to either
the felony DWI or Misdemeanor DWI arrest charges.
Ballman, the defendant was indicted for DWI as a felony (VTL 1192.3) and for second
degree obstructing governmental administration. The prosecution filled
a special information charging that the defendant has a 1999 Georgia conviction
for driving with an unlawful alcohol concentration with would have been
a violation of DWI (VTL 1192.2) had it occured in New York. This supported
the DWI felony charge. The defendant's motion to dismiss was denied
and he plea guilty to the New York DWI felony charge not the DWI misdemeanor
charge. The defendant's conviction was reversed because the prior
out of state conviction for DWI occurred before the effective date of
the New York DWI statute of VTL 1192.8
The Court of Appeals held that the most reasonable interpretation of the
New York DWI statute under VTL 1192.8 and it's enabling language was
that out of state convictions from prior to November 1, 2006 cannot be
used to elevate a DWI offense in New York to a felony DWI offense. The
initial version of this provision VTL 1192.7 was enacted in 1985 to allow
prior out of state DWI convictions for driving under the influence of
drugs or alcohol to be considered when determining penalties for subsequent
New York DWI offenses after November 29, 1985. Until then out of state
convictions had not been considered for penalty purposes.
Amendements in 2006 ended the practice of treating all DWI prior out of
state convictions as mere traffic infractions under New York Law.
The DWI statute in New York was amended to read as follows:
"A prior out of state conviction for 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 the purposes of determining
penalties imposed under this section....provided however that such conduct
had it occurred in New York state would have been a violation of any provision
of this section"
It also stated that if the out of state conduct would have been a violation
of New York State DWI laws misdemeanor or felony under VTL 1192had it
occurred in New York State but would not have constituted a misdemeanor
or felony the conduct would be deemded a prior conviction for driving
while ability impaired for purposes of determining the appropriate penalties.
The enabling language accompanying the amendment indicated that VTL 1192.8
shall apply only to convictions occurring on or after November 1, 2006.
The best DWI lawyers will review any prior DWI felony or DWI misdemeanor
to be sure the charge in New York is appropriate considering any out of
state DWI conviction.