Monday, February 13, 2017

Ithaca DWI Lawyer: How a First Time DWI in New York Can Be a Felony

Man drives child to school while highly intoxicated. 
When you read the headlines you see some people charged with DWI as a felony. The truth is that most first time DWI offenses are not felony level crimes. In fact the large majority of New York State DWI and DWAI drugs charges for first time offenders are charged as misdemeanors. But there is a special law for those people who are driving while intoxicated or impaired by drugs with kids under the age of 16 years old in the car as passengers.

Aggravated Driving While Intoxicated with a Child Passenger less than 16 years old (Leandra’s law)


Aggravated New York First Time DWI felony should Not be confused with the other Aggravated DWI which is a misdemeanor. The misdemeanor level DWI is where your BAC (blood alcohol concentration) was .18 or higher at the time of driving. With the Felony level Aggravated DWI it doesn't matter if your BAC is only .08 or you just smoked a joint. Any DWI or DWAI drugs will be enhanced to the highest level crime in New York with a child in the car.

Felony Level DWI Can Be Charged Two Ways: A Second DWI in Ten Years or a Child Passenger


Usually a felony level New York State DWI is charged because this is a second time you have been arrested for DWI within the prior ten years. The prior can be from another state like Pennsylvania as well. 

First Offense New York Felony Level DWI Can Also Mean Felony Level Punishment


A first time felony level DWI will still be subject to up to 4 years in state prison. It is still a class E level felony under the law, even though it is still a first time offense. You are also subject to 5 years of probation monitoring and supervision. Sometimes with a first time felony DWI the judge or prosecutor wants Shock Probation.

Remember that Shock Probation means a term of jail plus probation. It is also referred to as a split sentence, splitting into some incarceration and then a term of probation. Sometimes judges may be amenable to alternatives to Shock such as electronic home monitoring or community service hours and/or using a a home Sobrietor (which measures your BAC) and sends it in to the county monitor. The Sobrietor requires a landline phone and works much like an in the car ignition interlock device. 

Can There Be Different Treatment For Those Charged with a First Time Felony DWI? 


If there was no accident and if you are addressing an underlying alcohol and/or drug problem these things can help mitigate (decrease) punishment by the court. Mitigation of punishment is not just lessening but the transformation of punishment into a rehabilitation focus.