Sunday, January 23, 2011

Out of State License, New York DWI, and IIDs (Ignition Interlock Devices)

I often represent people from different states who for one reason or another were passing through the Great State of New York. The circumstances of their "visit" ie. whether they are driving through for business, pleasure, or college OR if it is for 5 minutes or for 5 years matters less than the fact that they now have to deal with a DWI criminal charge in the New York town, city, or village in which they were arrested.

I am asked: What happens back in my home state? What license (suspensions/revocations) issues will I face? What fines will I have?

The answers to these and other questions depends upon the state. It also depends if this is a first time DWI. It can range from nothing (generally in PA they do not sanction beyond NY punishments for first time DWI offenders) to $3,000 plus a 210 day suspension in New Jersey to everything New York does in New Hampshire to an administrative hearing in Texas to decide (from zero to everything).

In this blog I'd like to explore just the issue of IIDs. New York State has a mandatory (the Judge, and the prosecutor have NO discretion) six month ignition interlock device to be placed upon every vehicle you own and/or operate for every first time DWI or ADWI (aggravated DWI) conviction.

In addition, this device needs to be monitored every 30 days. What happens to you if you live in another state?

THE LAW for Interstate Compact States

An out-of-state resident must comply with a New York ignition interlock device order as set forth in 9 NYCRR §§ 358.7(b) (3) and (4).

9 NYCRR §358.7(b) (3) states that:

“ where an operator, subject to probation supervision or a sentence of conditional discharge, resides or desires to reside out-of-state and is an offender subject to the interstate compact
( 45 states belong to the interstate compact, these five: Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin DO NOT BELONG to the compact)

for adult offender supervision pursuant to section 259 of the Executive Law, the governing rules of such compact shall control. Additionally, Part 349 of this Title shall apply with respect to transfer of supervision of probationers. Where transfer is permitted, the receiving state retains its authority to accept or deny the transfer in accordance with compact rules. Where an operator is subject to probation supervision and is granted reporting instructions and/or acceptance by a receiving state, the sending probation department selects the specific class and features of the ignition interlock device available from a qualified manufacturer in the receiving state. Thereafter, the operator may select the model of the ignition interlock device meeting the specific class and features selected by the sending county probation department from a qualified manufacturer in the receiving state region. The device shall be installed prior to relocation or return where feasible. A qualified manufacturer shall make necessary arrangements to ensure the county monitor in New York State and the receiving state receive timely reports from the manufacturer and/or installation/service provider”

Pursuant to the compact, an operator convicted of his or her first DWI misdemeanor is NOT subject to the compact.

Take Away: New York can't force another state to do anything! NY state can control your NY state license privileges. Can NYS make you buy or get a car (say you don't own a car) and put it (the IID) on in another state?... So in essence, your home state will decide. Talk to a lawyer within that state, because county to county within that state it may vary.

btw A New York Judge can still stick you in jail in lieu of probation, make you get drug/alcohol treatment/evaluation, and can require a multitude of punishments beyond the IID. DWI is an Unclassified Misdemeanor which can receive up to one year in jail by law although sentences of jail time on first time DWIs (without serious injury or fatality) are rarely given.

THE LAW for NON COMPACT STATES

9 NYCRR §358.7(b) (4) states that:

“where an operator resides or desires to reside out-of-state, is not subject to the interstate compact (Georgia, Massachusetts, Michigan, Tennessee, and Wisconsin ) for adult offender supervision and such compact's governing rules, and has been given permission to return or relocate by the sentencing court or monitor, the same provisions with respect to selection specified in paragraph (3) of this subdivision applies and the device shall be installed prior to relocation or return. A qualified manufacturer shall make necessary arrangements to ensure the county monitor receives timely reports from the manufacturer and/or installation/service provider.”

An operator convicted of his or her first DWI misdemeanor is not subject to the interstate compact for adult offender supervision. [See: 9 NYCRR §358.7(b) (4)]


One example: Texas is part of the interstate compact but as we discussed Texas will decide what it does, New York can't tell Texas what to do. IMO, Understanding and preparing for future issues brings down stress, tension, and fear. The best advice is to speak to a knowledgeable DWI attorney as soon as possible after your arrest.

Word to the wise "forewarned is forearmed."

Larry Newman, www.ithacadwi.com