Expunge Your DUI

Yesterday I was first up in Ithaca City Court (first come first served), with four DWI cases in various stages of disposition. Judge Rossiter began the morning by announcing to a full Courtroom (240 cases on her docket) about the new New York Drunk Driving legislation that was a coming.

On November 18, 2009, Governor Paterson signed into law, Governor’s Program Bill Number 204, The Child Passenger Protection Act, also known as Leandra’s Law, it passed by the wide margin of 58-0. Although the law was focused on the protection of children (and those with driving children as passengers) it will have far reaching ramifications to all first time DWI offenders. New York State now joins 35 other states that make it a class E felony for first time DWI offenders driving with children as passengers. Just so we are all clear, Class E Felonies in New York State carry State prison terms of 1 to 4 years, and 5 years of probation. Compared to say, New Jersey where your first two DUIs do not even count as misdemeanors and are merely treated as traffic violations. This new law also makes Ignition Interlock Devices Mandatory for first time DWI offenders. This is something the Court must impose for a period of at least 6 months. Illinois just put this into their law in 2009, and many other states are following suit. Specifically under the new law: 1. First time DWI offenders (the DWI VTL 1192 (2) per se violation of a BAC .08 or higher and/or VTL 1192 (3) common law DWI) or Impaired by drugs (DWAI drugs) driving with a child (16 years or under) may be charged with a Class E Felony. In the past, DWIs were only charged as Class E felonies in New York State after a second DWI was committed within a 10 year time period. 2. Mandatory Driver License Suspension (pending prosecution) for people so charged. This is no different than the law in it’s current form. 3. Courts MUST order an ignition interlock device on all those convicted of DWI. There is a minimum 6 month time period for Installation and maintenance of the device on any vehicle owned and operated by those convicted of DWI. 4. The Probation Department within each respective county will monitor, issue regulations, and oversee these Ignition Interlock Devices, and their usage. Reading between the lines that means Probation Supervision is a likely possibility ( 3 years for a misdemeanor DWI, and 5 years for a felony DWI) for those convicted as well. That means no drinking for 3 or 5 years with regular random (unannounced) monitoring of urine, blood, and/or breath.
5. Drivers who cause serious physical injury (the threshold for serious injury is not very high) to children 16 or younger will be charged with a Class C Felony, punishable by up to 15 years in State Prison.
6. Drivers who cause the death of child may be charged with a Class B Felony, punishable by up to 25 years in State Prison.
7. Drivers (who are also parent, guardian, or legally responsible for a child) charged with any DWI or DWAI drugs while “that” child is a passenger will also be reported to the Statewide Central Register of Child Abuse and Maltreatment. Child endangerment charges are another likely scenario as well as being held as an unfit parent or legal guardian. The good news is that this year I have not had any DWI cases where my clients had children 16 years or younger as passengers in their cars. I do not think it is a common situation. Although I did refer a DWI case with a NY driver traveling through another state who did have his children asleep in the back seat of his car. If that same case played out here, with this new legislation in place, it would be a potential nightmare on so many levels. In that situation, the Office of Children and Family Services would be involved, and those parents would be facing criminal court and family court, and an open Pandora’s box of problems. Charges of Child maltreatment, Child neglect, and Child abuse may add to all the other issues facing these first time DWI offenders.

Originally published here.

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