Saturday, February 25, 2017

Ithaca DWI Lawyer: Is a Transfer of Misdemeanor New York DWI Probation Possible?



For all my years practicing law I have never seen or heard of a New York State misdemeanor DWI case with probation being transferred to another state. I had seen plenty of felony DWI cases get transferred but never ever a misdemeanor level case till this year.

In 2017, we have had out first request by a probation department to transfer a DWI case out-of-state. When is misdemeanor DWI probation transfer a possibility? How does it work to transfer a New York State misdemeanor probation?


All Transfers of New York State Probation Occur by the Interstate Compact On Adult Offender Supervision (ICAOS)



The ICAOS has been around roughly since the 1930s. It was brought about out of necessity. The states needed a mechanism to transfer those under it's supervision. This supervision was not only based upon probation but parole as well. As they say reciprocity rules the day, and the majority of states belong to this compact. Because if you want to send one of your people to another state you also have to take them from another state (jurisdiction). The modern compact came about after a state sent one of their parolees to a program in another state without the other state's knowledge. The loss of control of this parolee led to a young woman's rape and murder.

The Compact for Adult Offender Supervision is the main tool for managing the interstate movement of offenders subject to conditional release and/or community supervision. All people placed on probation or parole are conditionally released back into the community with local supervision.

Misdemeanor DWI Probation Transfer Can Either Be in One of Two Categories: Mandatory or Discretionary 


There is no constitutionally protected right to travel or to relocate once you are convicted. Remember a conviction for DWI and a guilty plea to DWI are the same thing in the end. Although I love and guard the rights enumerated in the declaration of independence, and it's right to life, liberty, and the pursuit of happiness those who are convicted of DWI lose them. 

Because what if your pursuit takes you someplace other than New York state? Well under the law you lose your right to travel or to relocate when you are convicted of a crime. Your life is no longer your own. It is the state's now, the government has a greater interest in protecting the public then yours. Public safety is in back of every transfer of probation. You can make a request of your probation officer to transfer if you have family and a job (means of support) waiting for you in another jurisdiction. This is in the complete discretion of probation whether to even consider a transfer request.

When can New York State mandate that a DWI probation transfer occur, in other words when does the receiving state have no choice but to accept it?


Very clear rules are in place for mandatory offender misdemeanor transfers. Firstly, which misdemeanor offenses meet the transfer criteria: 

A misdemeanant (convicted of a misdemeanor) provided they are subject to one year or more supervision and were convicted of one of the following offenses:

 An offense resulting in direct physical or psychological harm to another person(See, ICAOS Advisory Opinion 16-2006 for clarification); An offense involving the possession or use of a firearm; (See, ICAOS AdvisoryOpinion 1-2011 for clarification);A second or subsequent conviction of driving while impaired by drugs or alcohol; or (See, ICAOS Advisory Opinion 7-2006 for clarification); A sex offense requiring the offender to register as a sex offender under the laws of the sending state. (Rule 2.105)

For our purposes we will focus on New York State convictions for DWI (driving while intoxicated) or DWAI drugs (driving while ability impaired by drugs) offenses. The reason New York felony transfers are mandated are because the majority of felony DWI and felony DWAI offenses are because of two convictions for those offenses within a 10 year look back period.

The same mandatory criteria would be present for those DWI convictions where they had a prior conviction for a DWI or DWAI drugs longer than the 10 year look back window. Taking it out of the 10 year look back may prevent them from being charged and convicted of a felony in New York but under the Compact it would make misdemeanor probation transfer mandatory, and not discretionary.

So when is misdemeanor New York DWI probation transfer discretionary?

A receiving state can consent to accept supervision of an offender who does not meet the mandatory acceptance criteria. However, the acceptance of supervision under circumstances other than those above is discretionary with the receiving state. For example, the Commission has opined in ICAOS Advisory Opinion 4-2005 that an offender who is ineligible for mandatory transfer due to the nature of the offense or the offender’s failure to meet residency and employment requirements may be transferred under the discretionary provisions of the rules.
 Under such circumstances transfer may be warranted when in the opinion of both the sending and receiving states such a transfer is in the interests of justice and rehabilitation. It must be emphasized, however, that a discretionary transfer requires the consent of both sending and receiving states and the failure to obtain such consent prohibits the transfer of supervision.
                                                                                           ICAOS Manual



States can weigh out other factors other than whether you had a prior conviction for DWI in their decision to accept a transfer. They can consider whether you had a prior charge of DUI in Pennsylvania that has been since expunged. They can consider whether you had prior DWAI (violations) that began as DWI misdemeanors but were later reduced. They can consider the specific facts of this latest DWI conviction. They can consider all other relevant factors to the safety of the community and your place within it.

In the new connected world information abounds between the states. Things that were thought to stay in one place and never be seen or heard again pop up on computer screens daily. Discuss with your attorney all your options and what is in your best interests overall. There is usually not one right answer or choice these days, all things must at the very least be considered.