Bill S750-2013

Relates to driving while intoxicated

Relates to driving while intoxicated; imposes further penalties upon persons who operate a vehicle while under the influence of alcohol or drugs.

Details

Actions

  • May 22, 2013: referred to transportation
  • May 22, 2013: DELIVERED TO ASSEMBLY
  • May 22, 2013: PASSED SENATE
  • May 6, 2013: ADVANCED TO THIRD READING
  • May 1, 2013: 2ND REPORT CAL.
  • Apr 30, 2013: 1ST REPORT CAL.500
  • Jan 9, 2013: REFERRED TO TRANSPORTATION

Votes

VOTE: COMMITTEE VOTE: - Transportation - Apr 30, 2013
Ayes (17): Fuschillo, Robach, Carlucci, Gallivan, Larkin, Maziarz, Nozzolio, O'Mara, Ranzenhofer, Young, Zeldin, Dilan, Diaz, Kennedy, Squadron, Stavisky, Gipson
Ayes W/R (1): Perkins

Memo

BILL NUMBER:S750

TITLE OF BILL: An act to amend the vehicle and traffic law and the penal law, in relation to driving while intoxicated

PURPOSE: The purpose of this legislation is to make mandatory a period of incarceration for individuals who choose to again drive while under the influence after having been previously convicted of such a crime.

SUMMARY OF PROVISIONS: Section 1 tolls during periods of incarceration the clock on the ten year look back period for multiple driving under the influence convictions.

Section 2 amends Vehicle and Traffic Law section 1193 to impose mandatory jail time for individuals convicted of multiple driving under the influence offenses:

- 30 days - a conviction for violating subdivision two, three, four or four-a of section 1192 after having been convicted of violating subdivision two, two-a, three, four or four-a of section 1192 in the preceding ten years

- 90 days - a conviction for violating subdivision two, three, four or four-a of section 1192 after having been convicted two or more times of violating subdivision two, two-a, three, four or four-a of section 1192 in the preceding ten years.

- 180 days - a conviction for violating subdivision two-a of section 1192 after previously having been convicted of a violation of such subdivision in the past ten years.

- 1 year - a conviction for violating subdivision two-a of section 1192 after previously having been convicted two or more times for violation of such subdivision in the past ten years.

Section 3 amends the Penal Law to allow non-Penal Law felonies to be considered predicate felonies for the purpose of second time felony offender sentencing.

Section 4 contains the effective date.

JUSTIFICATION: DWI is a crime. It can be a deadly, violent crime. When a driver does not learn from the first conviction and gets convicted again, with no jail time, this only reinforces the myth that DWI is a social ill, not a crime. Research shows that approximately 21.6% of convicted drunk drivers in New York will be convicted again. Furthermore, research has shown that statewide there are 481 incidents of DWI to every one arrest.

Incarceration for repeat DWI offenders is presently an option for a judge, but there is no requirement that these drunk drivers have to

spend any time in jail. Under current law, drunk drivers convicted of two or more DWI offenses within ten years are guilty of a felony and face a fine and/or jail time. Those who commit these crimes within a five year period can face either additional jail time or community service. However, since jail time is not mandatory, judges can allow these individuals to escape incarceration and only face a fine or a combination of a fine and community service.

This legislation would require drunk drivers to serve a minimum of 30 days in jail for their second driving under the influence conviction in ten years, and a minimum of 90 days in jail if they are convicted of three or more driving under the influence offenses within ten years. Additionally, drivers convicted of their second aggravated DWI in ten years would face a mandatory 180 day sentence, and drivers convicted of three or more aggravated DWIs would face a 1 year mandatory sentence. In all cases, these sentences would be in addition to any other penalties imposed by the courts.

LEGISLATIVE HISTORY: 2011-2012: Passed the Senate (S.2597/A.5349)

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: First of November next succeeding the date which it shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 750 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. FUSCHILLO, BONACIC, FLANAGAN, LARKIN, RANZENHOFER -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation AN ACT to amend the vehicle and traffic law and the penal law, in relation to driving while intoxicated THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (c) of subdivision 1 of section 1193 of the vehi- cle and traffic law is amended by adding a new subparagraph (iv) to read as follows: (IV) IN CALCULATING THE TEN YEAR PERIOD UNDER ITEM (I) OF CLAUSE B OF SUBPARAGRAPH THREE OF PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION, ANY PERIOD OF TIME DURING WHICH THE PERSON WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF THE PREVIOUS VIOLATION OF SUBDIVISION TWO, TWO-A, THREE, FOUR OR FOUR-A OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE OR OF VEHICULAR ASSAULT IN THE SECOND OR FIRST DEGREE, AS DEFINED, RESPECTIVELY, IN SECTIONS 120.03 AND 120.04 AND AGGRAVATED VEHICULAR ASSAULT AS DEFINED IN SECTION 120.04-A OF THE PENAL LAW OR OF VEHICULAR MANSLAUGHTER IN THE SECOND OR FIRST DEGREE, AS DEFINED, RESPECTIVELY, IN SECTIONS 125.12 AND 125.13 AND AGGRAVATED VEHICULAR HOMICIDE AS DEFINED IN SECTION 125.14 OF SUCH LAW, AND THE TIME OF COMMISSION OF THE PRESENT OFFENSE SHALL BE EXCLUDED AND SUCH TEN YEAR PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED UNDER SUCH INCARCERATION. S 2. Subdivision 1-a of section 1193 of the vehicle and traffic law, as added by chapter 691 of the laws of 2002, paragraph (c) as amended by chapter 669 of the laws of 2007, paragraph (d) as added by chapter 732 of the laws of 2006, is amended to read as follows: 1-a. Additional penalties. (a) Except as provided for in [paragraph] PARAGRAPHS (A-1), (b) AND (B-1) of this subdivision, a person who oper-
ates a vehicle in violation of subdivision two [or], TWO-A, three, FOUR OR FOUR-A of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two [or], TWO-A, three, FOUR OR FOUR-A of such section within the preceding [five] TEN years shall, in addition to any other penalties which may be imposed pursuant to subdivision one of this section, be sentenced to a term of imprisonment of [five] NOT LESS THAN THIRTY days [or, as an alternative to such imprisonment, be required to perform thirty days of service for a public or not-for-profit corporation, association, institution or agency as set forth in paragraph (h) of subdivision two of section 65.10 of the penal law as a condition of sentencing for such violation]. Notwithstanding the provisions of this paragraph, a sentence of a term of imprisonment of [five] THIRTY days or more pursuant to the provisions of subdivision one of this section shall be deemed to be in compliance with this subdivision. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDI- TIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. (A-1) A PERSON WHO OPERATES A VEHICLE IN VIOLATION OF SUBDIVISION TWO-A OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AFTER HAVING BEEN CONVICTED OF A VIOLATION OF SUCH SUBDIVISION WITHIN THE PRECEDING TEN YEARS SHALL, IN ADDITION TO ANY PENALTIES WHICH MAY BE IMPOSED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, BE SENTENCED TO A TERM OF IMPRISONMENT OF NOT LESS THAN ONE HUNDRED EIGHTY DAYS. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDITIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. (b) [A] EXCEPT AS PROVIDED IN PARAGRAPH (B-1) OF THIS SUBDIVISION, A person who operates a vehicle in violation of subdivision two [or], TWO-A, three, FOUR OR FOUR-A of section eleven hundred ninety-two of this article after having been convicted on two or more occasions of a violation of [any of such subdivisions] SUBDIVISION TWO, TWO-A, THREE, FOUR OR FOUR-A OF SUCH SECTION within the preceding [five] TEN years shall, in addition to any other penalties which may be imposed pursuant to subdivision one of this section, be sentenced to a term of imprison- ment of [ten] NOT LESS THAN NINETY days [or, as an alternative to such imprisonment, be required to perform sixty days of service for a public or not-for-profit corporation, association, institution or agency as set forth in paragraph (h) of subdivision two of section 65.10 of the penal law as a condition of sentencing for such violation]. Notwithstanding the provisions of this paragraph, a sentence of a term of imprisonment of [ten] NINETY days or more pursuant to the provisions of subdivision one of this section shall be deemed to be in compliance with this subdi- vision. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDITIONAL PENALTY, CONDI- TION, LICENSE SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. (B-1) A PERSON WHO OPERATES A VEHICLE IN VIOLATION OF SUBDIVISION TWO-A OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AFTER HAVING BEEN CONVICTED OF TWO OR MORE VIOLATIONS OF SUCH SUBDIVISION WITHIN THE PRECEDING TEN YEARS SHALL, IN ADDITION TO ANY PENALTIES WHICH MAY BE IMPOSED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, BE SENTENCED TO A TERM OF IMPRISONMENT OF NOT LESS THAN ONE YEAR. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDITIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR
REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. (c) A court sentencing a person WHO HAS BEEN CONVICTED OF OPERATING A VEHICLE IN VIOLATION OF SUBDIVISION TWO, TWO-A, THREE OR AN ALCOHOL-RE- LATED VIOLATION OF SUBDIVISION FOUR-A OF SECTION ELEVEN HUNDRED NINETY- TWO OF THIS ARTICLE pursuant to paragraph (a) [or], (A-1), (b) OR (B-1) of this subdivision shall: (i) order the installation of an ignition interlock device approved pursuant to section eleven hundred ninety- eight of this article in any motor vehicle owned or operated by the person so sentenced. Such devices shall remain installed during any period of license revocation required to be imposed pursuant to para- graph (b) of subdivision two of this section, and, upon the termination of such revocation period, for an additional period as determined by the court; and (ii) order that such person receive an assessment of the degree of their alcohol or substance abuse and dependency pursuant to the provisions of section eleven hundred ninety-eight-a of this article. Where such assessment indicates the need for treatment, such court is authorized to impose treatment as a condition of such sentence except that such court shall impose treatment as a condition of a sentence of probation or conditional discharge pursuant to the provisions of subdi- vision three of section eleven hundred ninety-eight-a of this article. Any person ordered to install an ignition interlock device pursuant to this paragraph shall be subject to the provisions of subdivisions four, five, seven, eight and nine of section eleven hundred ninety-eight of this article. NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE CONSTRUED TO LIMIT OR PROHIBIT A COURT FROM IMPOSING ANY OTHER ADDITIONAL PENALTY, CONDITION, LICENSE SUSPENSION OR REVOCATION OR SCREENING OR ASSESSMENT OF SANCTION OF ANY KIND REQUIRED OR PERMITTED BY LAW. (d) Confidentiality of records. The provisions of subdivision six of section eleven hundred ninety-eight-a of this article shall apply to the records and content of all assessments and treatment conducted pursuant to this subdivision. (E) IN CALCULATING THE TEN YEAR PERIOD UNDER PARAGRAPHS (A), (A-1), (B) AND (B-1) OF THIS SUBDIVISION, ANY PERIOD OF TIME DURING WHICH THE PERSON WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF THE PREVIOUS VIOLATION OF SUBDIVISION TWO, TWO-A, THREE, FOUR OR FOUR-A OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS ARTICLE AND THE TIME OF COMMISSION OF THE PRESENT OFFENSE SHALL BE EXCLUDED AND SUCH TEN YEAR PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED UNDER SUCH INCARCERATION. S 3. Paragraph (a) of subdivision 1 of section 70.06 of the penal law, as amended by chapter 410 of the laws of 1979, is amended to read as follows: (a) A second felony offender is a person, other than a second violent felony offender as defined in section 70.04, who stands convicted of a felony [defined in this chapter], other than a class A-I felony, after having previously been subjected to one or more predicate felony convictions as defined in paragraph (b) of this subdivision. S 4. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.

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