Includes operating a motor vehicle with a conditional license while intoxicated under the crime of aggravated unlicensed operation of a motor vehicle in the first degree.
Ayes (59): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Absent (1): Parker
Excused (3): Adams, Diaz, Libous
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 § 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 § 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 §511. The Court found instead that in adopting § 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 §511(3)(a) (E FELONY) Conditional
VTL § 1196(7)(f) (Traffic Infraction)
LEGISLATIVE HISTORY: 2011:12: Passed the Senate (S.4177/A.6890)
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.
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