Aggravated DWI With Children in the Vehicle: NY VTL 1192.2-a(b)

As bad as any DWI arrest in New York may be, a felony charge for committing Aggravated DWI, VTL 1192(2-a)(b), is likely the most serious and egregious drunk driving offenses NY DUI attorneys defend. With children in a car or other vehicle driven by an intoxicated person – mom, dad, neighbor, coach, babysitter – no prosecutor, no judge and no jury will simply think an alleged violation of Leandra’s Law, is in any way acceptable. The risk to an innocent child is far too great.

Elements of the Crime

There are numerous ways you can violate Leandra’s Law or one of the many New York DWI laws. Before addressing each different potential violation of VTL 1192(2-a)(b), know that it matters not what type of vehicle you are driving, or, for that matter, whether you are in fact driving. The Vehicle and Traffic Law merely requires that you are operating a motor vehicle on a public highway. This “public highway” element has its own definition and meaning you should discuss with your own lawyer.

Assuming your conduct is in line with the above elements, what elevates misdemeanor Per Se crime involving a BAC of .08 or more, a Refusal arrest where you do not submit to a breath test, or a drug based violation to a felony Aggravated DUI, is if there is a child no older than fifteen with you while you operated the vehicle. The crime is raised to an even higher degree felony if the child or children sustain a “serious physical injury,” a legally codified term, or any of the children die.

Hypothetical and Example

You are driving along the Westside Highway, FDR Drive, Bronx River Parkway, or a local New York City, Scarsdale, Nanuet, or Brewster road. For that matter, you might be driving in a parking lot off Central Avenue in Yonkers that is accessible to the public. In your car, along with your spouse, is your 16-year-old son and his 15-year-old best friend. You get involved in a minor “fender bender” of little consequence, but upon the arrival of the police they notice the smell of alcohol on your breath, watery and bloodshot eyes, and your unsteadiness on your feet. Whether you blow into the portable breath test (PBT) or the Breathalyzer, Intoxilyzer or Alcosenor at the precinct, the police place you under arrest. In lieu of charging you with the misdemeanor VTL 1192.2 or VTL 1192.3, you are brought before a judge and arraigned on the felony offense of VTL 1192(2-a)(b), Aggravated DWI, because your son’s friend was under the age of sixteen.

Penalties and Punishment

What likely concerns defendants the most is the potential for incarceration at sentencing. Depending on what, if any injury occurs, the following is applicable:

• It is an “E” felony, punishable by up to four years in prison for a first-time offender, to simply drive while intoxicated or impaired by drugs when a child, fifteen years old or younger, is in the vehicle.
• It is a “C” felony, punishable by up to fifteen years in prison for this same offender, if a child sustains a “serious physical injury.”
• Even worse, it is a class “B” felony, punishable by up to twenty-five years in prison with a minimum of five years incarceration, if a child dies as a result of the intoxicated operation.

Outside of imprisonment or jail, the following penalties are also imposed:

• A fine up to $5,000, but no less than $1,000.
• Five years probation depending on whether the child sustained no or little injury.
• License revocation for at least a year
• Attendance at a Victim Impact Panel
• $520 surcharge and a three year DMV assessment totaling $750
• The installation, at a cost to you, of an ignition interlock device.

No matter the sentenced handed down by a judge, the ramifications are quite significant.

Collateral Consequences and Issues

In addition to the statutory penalties, if you are a parent, the police or prosecutors are “mandated reports” who must report your arrest and conduct to the Statewide Central Register of Child Abuse and Maltreatment. Whether this is a concern of yours as a parent, teacher, daycare provider, or your work with youth in other capacities, it is only one of multiple secondary issues you will face. You may be required to report you arrest or conviction to your licensing or certifying agency such as FINRA or a medical association. Similarly, if you are a foreign national, your legal status may be jeopardized if your conviction is deemed a Crime Involving Moral Turpitude or Aggravated Felony.

Your Case, Your Defense, Your Future

The evidence and allegations in your case determine the best defense and strategy. Can you challenge the probable cause for your arrest? Were you in fact operating your car or merely letting it warm up in the cold as it was parked in a space? How did the police administer the check point and was it legally compliant? Is there any video reflecting your alleged failure of any field sobriety tests? Were you properly advised of your rights when you made a statement or of the consequences of your refusal to submit to a chemical test to determine your BAC? Successful or not, the avenues to pursue are plenty if your counsel knows where to look and what he or she is seeking.

It should be overwhelmingly clear. Not only can operating a vehicle in a drunken state with a child passenger result in serious felonies, it can land in “upstate,” devastate your career and become an albatross upon your otherwise good name. Remember, good people make poor decisions and an allegation is by no means proof of any wrongdoing at all. With so much on the line, when arrested for a DUI crime in NYC or NYS, contact the criminal lawyers and former DWI prosecutors at Saland Law so experience, advocacy and knowledge can be your best defense.

Call the New York City DWI lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.