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Prior DWI Convictions

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.

Recently in 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.

In 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.

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