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BILL NUMBER:S751

TITLE OF BILL: An act to amend the vehicle and traffic law, in relation to the offense of aggravated unlicensed operation of a motor vehicle in the first degree

PURPOSE: To include operating a motor vehicle with a conditional license while intoxicated under the crime of aggravated unlicensed operation of a motor vehicle, a class E felony.

SUMMARY OF PROVISIONS: Section 1. Amends subparagraph (iii) of paragraph (a) of subdivision 3 of section 511 of the vehicle and traffic law by adding new subparagraph (iv)

Section 2. Effective date

JUSTIFICATION: The Legislature enacted VTL º 1196(7) to set forth the conditions under which a driver with a conditional license (issued after a DUI offense) can operate a vehicle. Any operation outside those conditions ennumerated in º 1196(7) is an infraction; a prohibition against driving while intoxicated or impaired is not an ennumerated condition. Section 511 of the VTL provides for penalties for persons driving with a suspended or revoked licenses; driving under the influence with a suspended of revoked license is class E felony. The Court of Appeals, in People v. Rivera (2010), found that though the privileges of a person with a conditional license remain suspended, that person is not driving with a suspended license for purposes of º511. The Court found instead that in adopting º 1196(7) the Legislature intended to set forth all conditions for driving with a conditional license. Therefore, a person who is granted the privilege of a conditional license faces a far lighter penalty for continuing to drive under the influence than does a person with a suspended license.

The sample set of facts below illustrates this disparity in charging:

Sample Facts: Two drivers are arrested for driving with a blood alcohol concentration of .12. Both are convicted of DWI and their licenses are revoked. Driver A receives the benefit of a conditional license. Driver B does not. One month later both drivers are stopped for Driving While Ability Impaired by Alcohol (DWAI) and both register a BAC of .07. If a conditional license terminates the revocation, the following disparity in charging occurs:

Driver A (Conditional)          Driver B (No Conditional)

If DWAI (Traffic Infraction)    If DWAI (Traffic Infraction)

Then Operating Outside the      Then VTL º511(3)(a) (E FELONY) Conditional

 VTL º 1196(7)(f) (Traffic Infraction)

LEGISLATIVE HISTORY: 2011:12:  Passed the Senate (S.4177/A.6890)

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Immediately.

Text

STATE OF NEW YORK
________________________________________________________________________

751

2013-2014 Regular Sessions

IN SENATE

(PREFILED)

January 9, 2013
___________

Introduced  by  Sens. FUSCHILLO, BONACIC, DeFRANCISCO, FLANAGAN, GOLDEN,
  LARKIN, LAVALLE, MAZIARZ, RANZENHOFER -- read twice and ordered print-
  ed, and when printed to be committed to the Committee  on  Transporta-
  tion

AN  ACT to amend the vehicle and traffic law, in relation to the offense
  of aggravated unlicensed operation of a motor  vehicle  in  the  first
  degree

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (iii) of paragraph (a)  of  subdivision  3  of
section 511 of the vehicle and traffic law, as amended by chapter 746 of
the  laws  of  2006,  is amended and a new subparagraph (iv) is added to
read as follows:
  (iii) commits the offense of  aggravated  unlicensed  operation  of  a
motor  vehicle in the third degree as defined in subdivision one of this
section; and is operating a motor vehicle while under permanent  revoca-
tion as set forth in subparagraph twelve of paragraph (b) of subdivision
two of section eleven hundred ninety-three of this chapter[.]; OR
  (IV)  HAS  A CONDITIONAL LICENSE PURSUANT TO PARAGRAPH (A) OF SUBDIVI-
SION SEVEN OF SECTION ELEVEN HUNDRED NINETY-SIX OF THIS CHAPTER  AND  IS
OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR A DRUG
IN VIOLATION OF SUBDIVISION ONE, TWO, TWO-A, THREE, FOUR, FOUR-A OR FIVE
OF SECTION ELEVEN HUNDRED NINETY-TWO OF THIS CHAPTER.
  S 2. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01343-01-3