Topic:
DRUNK DRIVING; DRIVER LICENSES; ALCOHOL/DRUG EDUCATION; LEGISLATION; PRISONS AND PRISONERS; SENTENCING;
Location:
DRUNK DRIVING;

OLR Research Report


September 19, 2008

 

2008-R-0506

DUI LAWS IN CONNECTICUT AND NEW YORK

By: George Coppolo, Chief Attorney

You asked for a comparison of New York's and Connecticut's driving under the influence of alcohol or drugs laws (DUI) regarding punishment and treatment.

SUMMARY

There are many similarities as well as differences between New York and Connecticut's DUI laws. Regarding penalties, both states rely on a combination of license suspensions and revocations, prison, and fines with the severity of the punishment increasing significantly for repeat offenders. Both impose harsher penalties for offenders with high blood alcohol content (BAC). Connecticut establishes this level at .16%, New York sets the threshold at .18%. Both states rely on and mandate treatment as part of their approach and both states give the Department of Motor Vehicles Commissioner the authority to withhold driving privileges even after a mandatory suspension period has expired until the driver presents satisfactory evidence to the commissioner that his or her substance abuse problem has been dealt with.

Generally New York law carries a harsher possible maximum prison sentence especially for repeat offenders and a slightly higher possible maximum fine. Connecticut law establishes longer minimum prison sentences. It is not clear if the prison sentences the New York courts actually impose are harsher than those the Connecticut courts actually impose.

New York and Connecticut make it illegal for drivers under age 21 to operate a motor vehicle with a blood alcohol content (BAC) of .02 to .07. But Connecticut imposes much harsher penalties for this offense by imposing the same criminal penalties on these offenders as it does for drivers age 21 and over who operate with a BAC of .08 or higher, while New York makes this offense a civil violation punishable by fines and license suspension but not imprisonment.

Connecticut's criminal law imposes harsher minimum license suspension periods than New York. In addition Connecticut has an administrative per se license suspension system, which imposes mandatory license suspension periods for offenders that are in addition to those mandated by the criminal law. New York does not have an administrative license suspension system. Laws in each state require the permanent revocation of a license for certain multiple offenses during a specified time period and each state allows the offender to apply to the motor vehicles commissioner after a certain period of time to rescind this revocation.

Regarding treatment, both states include mandatory treatment in their penalties but the systems are different in certain important respects. First, Connecticut has a pre-trial alcohol education treatment program that first offenders can apply for. If the judge refers them to the program and they satisfactorily complete it, the criminal charge is dismissed and they do not face any possible prison time. (But they are penalized under the administrative per se law with mandatory license suspension.)

New York does not have such a pre-trial diversion system for DUI defendants. But it has provisions that appear to achieve a similar result for first offenders by allowing the court to accept a guilty plea to driving while impaired instead of DUI. This offense does not result in a jail sentence for first offenders, requires the successful completion of a treatment program, and carries a relatively short license suspension penalty. But it results in the defendant being considered a second offender for purposes of penalties that may be imposed for subsequent offenses. Connecticut law treats a driver subsequently convicted of DUI as a first offender instead of a subsequent offender for criminal law purposes. But it treats him or her as a second offender for purposes of the mandatory license suspension penalties that must be imposed under the administrative suspension program.

Connecticut law requires anyone whose license or nonresident operating privilege has been suspended for any DUI conviction or for two or more administrative per se suspensions for BAC test failures or refusals, to successfully complete a Department of Motor Vehicle (DMV)-approved substance abuse treatment program that includes an assessment of the degree of alcohol abuse and treatment deemed appropriate for the person. The program must be successfully completed before DMV may restore the offender's driver's license or nonresident operating privilege. The program must provide intensive treatment and continuing individual aftercare supervision and monitoring.

The offender may petition the commissioner for waiver of the program participation requirement on the grounds that (1) he or she is presently undergoing or has already completed an equivalent program subsequent to his most recent arrest either as a result of a Superior Court order or on a voluntary basis or (2) a Connecticut licensed physician attests that he or she does not have a current addiction problem that affects his ability to operate a vehicle safely.

New York law allows the termination of the license suspension penalty after the statutory minimum period is served if the defendant satisfactorily completes his or her treatment program. Also under New York law a person whose license has been suspended or revoked for a DUI related offense must apply to get his license back once the minimum suspension period has been completed and the commissioner can require proof that the applicant is fit to operate a motor vehicle.

CONNECTICUT

Driving While Under the Influence of Alcohol or Drugs

Connecticut law prohibits driving (1) while under the influence of alcohol or drugs or (2) with an “elevated blood alcohol content” (CGS 14-227a). A person is “under the influence” if his ability to drive is affected to an appreciable degree (Infield v. Sullivan, 151 Conn. 506 (1964)). This may be prosecuted with or without any direct evidence of his BAC. A person has an “elevated blood alcohol content” if his BAC is .08% alcohol by weight or above. The law also makes it illegal for someone under age 21 to drive with a BAC of .02% or more. While this is defined under a different statute (CGS 14-227g), most of the criminal drunk driving provisions apply by reference to anyone under age 21 violating the prohibition.

The DUI law applies to operating a motor vehicle anywhere, not just on a road or highway, including the operator's own driveway or other property. The DUI law also applies to the operation of snowmobiles and all-terrain vehicles.

The prosecutor cannot dismiss, nolle, or reduce a DUI charge without stating his reasons in court.

Criminal Penalties. A person convicted of DUI is subject to the criminal penalties listed in Table 1.

Table 1: DUI Criminal Penalties

Conviction

Jail Sentence

Fine

License Suspension

First

Either (a) up to six months with a mandatory minimum of two days or (b) up to six months suspended with probation requiring 100 hours of community service

$500- $1,000

One year

Second

Up to two years, with a mandatory minimum of 120 consecutive days and probation with 100 hours community service

$1,000-$4,000

Three years (or until age 21 if longer)

Third and subsequent

Up to three years, with mandatory minimum of one year and probation with 100 hours community service

$2,000-$8,000

Permanent Revocation

If the court sentence includes a period of probation, the court may require as a probation condition that the offender participate in a victim impact panel program approved by the Court Support Services Division. The panel must provide a non-confrontational forum for victims of alcohol or drug related offenses and offenders to share experiences on the impact of alcohol or drug related incidents in their lives. The nonprofit organization that conducts the panel may charge a participation fee of up to $25 for any offender ordered to participate.

In assessing these penalties, the law considers as a subsequent conviction one that occurs within 10 years of a prior conviction for the same offense. Also, any conviction that occurs in another state for an offense that the court determines has “substantially the same” essential elements as Connecticut's criminal drunk driving offenses, manslaughter in the 2nd degree with a motor vehicle, or assault in the 2nd degree with a motor vehicle will constitute a prior conviction of the same offense for purposes of determining someone's prior criminal history. (2nd degree manslaughter or assault with a motor vehicle involves driving while under the influence of liquor or drugs.)

The law allows someone whose driver's license has been revoked following a third conviction for DUI to seek restoration of driving privileges after six years, provided the DMV commissioner determines it does not endanger public safety, certain requirements are met, and the person submits to installation and use of a vehicle ignition interlock device.

For a driver under age 18, the suspension period is until he turns 18 or the period listed above, whichever is longer. For drivers driving under a work-only driving permit (described below) suspension periods are doubled. In addition to these penalties, the court can order a driver to participate in an alcohol education and treatment program.

The law requires the court to report DUI convictions to the DMV commissioner following established statutory procedures. The commissioner must suspend the license or nonresident operating privilege of anyone reported as convicted for the period the law requires. The commissioner must determine the period of the suspension required based on the number of convictions the person has had within the specified time period according to his driver history record maintained by DMV, notwithstanding the sentence imposed by the court for the conviction. Suspension for conviction of a criminal DUI charge is in addition to any previously imposed administrative license suspension under the implied consent law (see below).

Sixteen-and Seventeen-Year Old Drivers. A recent law, PA 08-32, establishes a 48-hour summary suspension of a 16- or 17-year-olds driver's license if the teenage driver is cited for DUI or with an elevated blood-alcohol level (which is 02% or more for anyone under age 21).

If the 16- or 17-year-old is cited for either of these violations, the police officer must seize the driver's license for 48 hours on behalf of the DMV commissioner and may have the vehicle removed. The license seizure begins on the date and time the arrest is made or the summons or infraction complaint is issued. The driver's license is considered suspended for 48 hours.

To regain the license, the 16- or 17-year-old and his or her parent or legal guardian must appear in person at the police department, state police barracks, or other designated location and sign a written acknowledgement of its return. (A subsequent act, PA 08-150, amends this provision to exempt an emancipated minor from the requirement for accompaniment by a parent or guardian when retrieving the license.) No restoration fee may be charged for return of the license. The police officer

who seized the license must make a written report of the violation and the suspension action to the commissioner on a form, and in a time and manner, that the commissioner prescribes.

Another recent law (PA 08-32), prohibits someone under age 18 who is arrested for DUI from being considered a youthful offender.

Persistent DUI Offenders

A person is considered a “persistent operating under the influence felony offender” if he or she (1) is convicted of manslaughter or assault in the second degree with a motor vehicle and (2) within the prior 10 years has been convicted of either of these offenses or of driving under the influence of alcohol or drugs, or of substantially similar offenses in other states (CGS. 53a-40f as amended by PA 08-1 Jan. Spec. Ses.).

Enhanced Penalty. The court may impose the prison sentence for the next higher degree of felony for a persistent operating under the influence felony offender. Thus, it increases, from 10 to 20 years, the maximum possible prison term for a persistent offender convicted of manslaughter in the second degree with a motor vehicle and, from five to 10 years, the maximum possible sentence for a persistent offender convicted of assault in the second degree with a motor vehicle.

Ignition Interlock Devices

Ignition interlock devices are special types of equipment installed in motor vehicles that require the vehicle operator to exhale into the device before starting the vehicle. If the device detects a BAC above a certain threshold level, it prevents the vehicle from being started. Interlock devices also require periodic breath samples while the vehicle is operating. The threshold BAC level can vary according to the requirements of the law (which in Connecticut is .025% BAC).

Under Connecticut law, anyone who has been arrested for DUI, 2nd degree manslaughter with a motor vehicle, or 2nd degree assault with a motor vehicle may be ordered by the court not to operate any motor vehicle unless it is equipped with an ignition interlock device. This order may be made as a condition of the offender's release on bail or of his or her application to participate in the Pretrial Alcohol Education System.

Also, an ignition interlock requirement may be imposed on someone convicted of DUI for a second time when the conviction was based solely on alcohol use. Second DUI offenders are subject to a three-year license suspension. When the court reports a second conviction to DMV and the conviction is based solely on alcohol use, the offender may apply, when appropriate, and, if he or she qualifies, DMV must permit use of an ignition interlock device on any vehicle he owns or will operate. The interlock requirement substitutes for two of the three years of the license suspension (CGS 14-227a).

Someone is ineligible for the interlock option if he has not enrolled in a Substance Abuse Treatment Program as required by law following a DUI conviction or has not received a waiver from that requirement as provided by the law, or if his or her license has been suspended by the commissioner for any other reason except for a DUI conviction based solely on alcohol use.

The interlock device option applies only when the second DUI conviction based solely on alcohol use occurs and is prosecuted in Connecticut. By law, DUI and other alcohol related criminal offenses that occur out-of-state and the essential elements of which are determined by the court to be substantially the same as Connecticut offenses constitute a prior offense for purposes of determining imposition of penalties for second or subsequent offenses. By federal and state law, states must record convictions for certain highway related offenses, including DUI, committed by nonresidents and report these convictions to the offender's state of residence for imposition of penalties. Thus if someone has a prior DUI conviction and is subsequently convicted for DUI in another state, DMV is informed of the out-of-state conviction and imposes the three-year license suspension required under Connecticut law for a second DUI offense. However, since the conviction did not occur for a violation of CGS 14-227a, the offender may not apply for the interlock option to substitute for two of the suspension years and must serve the full three-year suspension.

Administrative Per Se License Suspensions

The law requires an administrative license suspension process for drivers who refuse to submit to the test or whose test results indicate an elevated BAC (.08% or more or .02% or more if he or she is under age 21). In such cases, the police officer, acting on behalf of the motor vehicle commissioner, must revoke the driver's license for 24 hours and submit a report to the DMV, which among other things must contain any test results and the grounds the officer had for arresting the person. In cases of test refusals, a third party who witnessed the refusal must sign the report.

A different procedure applies when someone gives a blood or urine sample at a police officer's request and this requires a laboratory analysis to determine the results. In this case, the officer can not immediately take possession of the person's license or follow the other procedural requirements of the per se law. Instead, immediately upon receiving test results showing an elevated BAC, the officer must notify the DMV commissioner and submit the required written report.

The process followed once the commissioner receives the police report depends on the driver's circumstances. As long as the driver either (1) has not previously been suspended for a DUI conviction within the 10 years preceding the present arrest or (2) been involved in an accident that resulted in a fatality, the commissioner may suspend his or her license or nonresident operating privilege as of a date certain, but not more than 30 days after the person receives notice of his arrest by the police officer. In the case of someone with a prior DUI license suspension or who has been involved in a fatal accident, the commissioner may suspend his or her license or operating privilege on any date he specifies in the suspension notice. This can be immediate.

In either case, the driver is entitled to a hearing before DMV to contest the suspension. In the first case (no prior DUI suspension or fatal accident involvement), this must occur prior to the effective date of the suspension provided the person contacts DMV no later than seven days after DMV mails the suspension notice. In the latter case (prior DUI suspension or fatal accident involvement), the hearing can occur after the suspension occurs, but not more than 30 days after the person contacts the DMV to schedule a hearing (CGS 14-227b).

The hearing is limited to whether: (1) the police officer had probable cause to arrest the person, (2) he or she was arrested, (3) he or she was driving, and (4) he or she refused the test or had an elevated BAC. In the case of test results obtained from a blood sample taken from an apparently injured driver, the hearing must include an additional determination of whether the blood sample was obtained according to the statutory conditions for admissibility and competence as evidence. If the answer to any of these questions is no, the driver gets his license back.

If the answer to all of the questions is yes, the driver's license is suspended for the period specified in Table 2. Longer suspensions apply if the person's BAC was measured at .16% or more.

Table 2: Administrative Per Se License Suspension Periods

Per Se Offense

First Offense

Second Offense

Third or Subsequent Offense

Test Refused

6 months

One year

3 years

BAC of .08% or more

90 days

9 months

2 years

BAC of .16% or more

120 days

10 months

2 years, six months

The penalties also apply to someone who takes the initial test but refuses to take the second test. These provisions do not apply to someone whose condition makes such tests medically inadvisable. These administrative license suspension penalties are in addition to any suspension penalties imposed as a result of conviction on any criminal DUI charge (see Table 1 above).

Enhanced Administrative Penalties

By law, anyone under age 21 who does not contact DMV for a hearing, fails to show up for a scheduled hearing, or who receives an adverse hearing decision is subject to a license suspension that is twice as long as the period imposed on someone age 21 or older for a similar type of violation.

A recent law (PA 08-32) makes this enhanced administrative license suspension even longer for a 16- or 17-year-old for a first per se offense. Specifically, the suspension for a first per se violation by a 16- or 17-year-old is increased from: (1) one year to 18 months for a test refusal, (2) 180 days to one year for a test result of at least 02% but under .16%, and (3) from 240 days to one year for a test result of .16% or more.

Substance Abuse Treatment Program Participation

The law requires anyone whose license or nonresident operating privilege has been suspended for any DUI conviction, or for two or more administrative per se suspensions for test failures or refusals, to successfully complete a DMV-approved substance abuse treatment program that includes an assessment of the degree of alcohol abuse and treatment deemed appropriate for the person. The program must be successfully completed before DMV may restore the offender's driver's license or nonresident operating privilege. The program must provide intensive treatment and continuing individual aftercare supervision and monitoring.

The commissioner can approve one or more private organizations that meet his qualifications to provide the program, but the entire cost of the program must be paid from user fees. The fees are subject to the commissioner's approval.

The person may petition the commissioner for waiver of the program participation requirement on the grounds that (1) he or she is presently undergoing or has already completed an equivalent program subsequent to his most recent arrest either as a result of a Superior Court order or

on a voluntary basis or (2) a Connecticut licensed physician attests that he or she does not have a current addiction problem that affects his or her ability to operate a vehicle safely (CGS 14-227f).

Pretrial Alcohol Education System

Someone charged with DUI, operating a vehicle with a BAC of .02% or more if under age 21, operating a vessel or waterskiing while under the influence of alcohol or drugs, or reckless operation of a vessel while under the influence of alcohol or drugs, may apply to the court for admission to the Pretrial Alcohol Education System. The applicant must pay a $50 application fee and a $100 nonrefundable evaluation fee. The applicant also must make certain affirmations under oath before the court, one being that he or she has not had the program previously invoked on his or her behalf within the preceding 10 years, or, if under age 21 and charged with operating a vehicle with a BAC of .02% or more, that he has never had the program invoked on his or her behalf before.

The court can grant the application after considering the recommendations of the state's attorney and assessment and confirmation of the person's eligibility by the Court Support Services Division (CSSD). If the court grants the application, it must refer the defendant to CSSD for assessment and confirmation of eligibility and to the Department of Mental Health and Addiction Services (DMHAS) for evaluation.

Upon confirmation of eligibility, the person is referred to DMHAS for placement in either an appropriate alcohol intervention program or a state-licensed substance abuse treatment program.

Any person who enters the program must agree to:

1. the tolling of the statute of limitations with respect to such crime;

2. a waiver of such person's right to a speedy trial;

3. complete 10 to 15 counseling sessions in an alcohol intervention program or successfully complete a substance abuse treatment program of at least 12 sessions dependent upon the evaluation report and the court order;

4. upon completion of participation in the alcohol intervention program, accept placement in a treatment program upon recommendation of a provider under contract with DMHAS or placement in a state-licensed treatment program, which meets DMHAS standards if CCSD deems it appropriate, and if ordered by the court, to participate in at least one victim impact panel.

If the court makes a determination of ineligibility or if the program provider certifies to the court that the defendant did not successfully complete the assigned program or is no longer amenable to treatment, the court shall order the court file to be unsealed, enter a plea of not guilty for such defendant, and immediately place the case on the trial list.

If the person satisfactorily completes the assigned program, he or she may apply for dismissal of the charges. Upon a finding of satisfactory completion, the court must dismiss the charges (CGS 54-56g).

Anyone whose employment or residence makes it unreasonable to attend a program in Connecticut may attend, with the court's approval, a similar program in another state that has standards substantially similar to or higher than Connecticut's.

48 Hour Impoundment

An officer must impound for 48 hours the motor vehicle of anyone arrested for operating under the influence whose right to drive in Connecticut is under suspension or revocation. The owner may reclaim the vehicle after paying all towing and storage costs (CGS 14-227h).

Operating While License Suspended for DUI

Anyone who operates a motor vehicle during the period his or her license is under suspension or revocation for driving under the influence or for refusing to submit to a BAC test is subject to a fine of up to $1,000 and imprisonment of up to one year. The offense also carries a 30-day mandatory prison sentence unless the court specifies mitigating circumstances in writing (CGS 14-215(c)).

Work-Only Drivers' Permits

By law, anyone who has had a driver's license suspended, except a person (1) with a previous suspension, (2) who operated a vehicle while under suspension, (3) who failed to appear for trial, or (4) under suspension for refusing to submit to a DUI blood, breath, or urine test until at least 90 days of his mandatory six-month suspension has run, may apply for a special driving permit that allows certain work-related driving (CGS 14-37a).

DUI Related Laws

CGS 53a-56b establishes the crime of manslaughter in the second degree with a motor vehicle. A person commits this offense when, while operating a motor vehicle under the influence of alcohol or any drug, he or she causes the death of another person as a consequence of the effect of the alcohol or drugs. The penalty is a prison term of up to 10 years, or a fine of up to $10,000, or both. CGS 53a-60d establishes the crime of assault in the second degree with a motor vehicle. A person commits the offense when, while operating a motor vehicle under the influence of alcohol or drugs, he or she causes serious physical injury to another person as a consequence of the effect of the alcohol or drugs. The penalty is a prison term of up to five years, or a fine of up to $5,000, or both. The law defines a “serious physical injury” as one that creates a substantial risk of death, or causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ

NEW YORK

Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (NY Veh. & Tr. 1192)

New York has several separate offenses under its DUI law. Some of the specific offenses include:

Driving While Ability Impaired. This offense occurs when someone operates a motor vehicle while his or her ability to operate it is impaired by the consumption of alcohol ( 1192.1). The law specifies that a driver may be convicted of driving while impaired even if he is charged with driving under the influence or driving with a BAC of .08 or more.

Driving While Intoxicated - Per Se. This offense occurs when someone operates a motor vehicle with a BAC of .08% or above ( 1192.2).

Aggravated Driving While Intoxicated-Per Se. This occurs when someone drives with a BAC of .18% or more ( 1192.2a).

Driving While Intoxicated. This offense occurs when someone drives while in an intoxicated condition ( 1192.3).

Driving While Ability Impaired by Drugs. This occurs when someone operates a motor vehicle while the person's ability to operate it is impaired by the use of a drug ( 1192.4).

Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and Any Drug or Drugs. This occurs when someone drives while his or her ability to drive is impaired by the combined influence of drugs or of alcohol and any drug or drugs ( 1192.4a).

Commercial Vehicles. New York law also establishes separate standards and penalties for operating commercial vehicles under the influence. For example it establishes a lower BAC threshold of .04 instead of .08 for non-commercial vehicles.

Chemical Test Evidence 1195

Admissibility. The law requires courts to admit evidence of the amount of alcohol or drugs in the defendant's blood as shown by a blood, breath, or urine test ( 1195).

Probative Value. Evidence that there was a BAC of .05% or less is prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that the defendant was not in an intoxicated condition. (Prima facie evidence sufficient evidence for a party to prevail on the issue the evidence is offered to prove. This evidence must be refuted in some way by the other party for him or her to have a chance of prevailing at trial.)

Evidence that there was more than .05% but less than .07% of alcohol in the defendant's blood is prima facie evidence that he or she was not in an intoxicated condition. This evidence is relevant, but may not be given prima facie effect, in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol.

Evidence that there was .07% or more but less than .08% is prima facie evidence that defendant was not in an intoxicated condition. But such evidence must be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol.

Suppression of BAC Evidence. A defendant who has been compelled to submit to a chemical test pursuant to the DUI laws may move for the suppression of such evidence on the grounds that the order was obtained and the test administered in violation of the requirements of state law.

Plea Bargain Limitations

If a person is charged with any of the DUI offenses a guilty plea must include a plea of guilty to at least one of them. If the district attorney, upon reviewing the available evidence, determines that a DUI charge is not warranted, he or she may consent, and the court may allow a guilty plea of guilty to another charge. But the court must indicate on the record the basis for the disposition.

Required Treatment

A court may not accept a guilty plea in any case where a person is charged with driving while impaired, driving under the influence, driving with a BAC of .08 or more, or driving with a BAC of .18 or more, unless it includes as a condition the requirement that the defendant attend and complete the alcohol and drug rehabilitation program or a similar program also established by law. (The laws establishing each program are summarized below.)

Criminal Penalties

The following tables reflect the criminal penalties that apply to the various DUI offenses in New York. This information was taken directly from the New York Department of Motor Vehicles web site.

Table 3: AGGRAVATED DRIVING WHILE INTOXICATED
(.18% and higher BAC)

CONVICTION

FINE *

JAIL SENTENCE

LICENSE ACTION

1st Offense
(Misdemeanor)

Minimum $1,000
Maximum $2,500

Up to 1 Year

Minimum 1-year revocation

2nd Offense
Within 5 years
(Class E Felony)

Minimum $1,000
Maximum $5,000

Up to 4 Years; minimum 5 days jail or 30 days of community service

Minimum 18-month revocation

3rd Offense or more
Within 10 years
(Class D Felony)

Minimum $2,000
Maximum $10,000

Up to 7 Years; minimum 10 days jail or 60 days of community service

Minimum 18-month revocation

Table 4: DRIVING WHILE INTOXICATED
or
DRIVING WHILE ABILITY IMPAIRED BY A DRUG
)

CONVICTION

FINE *

JAIL SENTENCE

LICENSE ACTION**

1st Offense
(Misdemeanor)

Minimum $500
Maximum $1,000

Up to 1 Year

Minimum 6-Month Revocation

2nd Offense
Within 10 years
(Class E Felony)

Minimum $1,000
Maximum $5,000

Up to 4 Years; minimum 5 days jail or 30 days of community service

Minimum 1-Year Revocation, plus ignition interlock and alcohol assessment

3rd Offense or more
Within 5 years
(Class D Felony)

Minimum $2,000
Maximum $10,000

Up to 7 Years; minimum 10 days jail or 60 days of community service

Minimum 1-Year Revocation, plus ignition interlock and alcohol assessment

Table 5: DRIVING WHILE ABILITY IMPAIRED BY A COMBINATION OF ALCOHOL OR DRUGS

CONVICTION

FINE

JAIL SENTENCE

LICENSE ACTION**

1st Offense
(Misdemeanor)

Minimum $500
Maximum $1,000

Up to 1 Year

Minimum 6-Month Revocation

2nd Offense
Within 5 years
(E Felony)

Minimum $1,000
Maximum $5,000

Up to 4 Years

Minimum 1-Year Revocation

3rd Offense
Within 10 years
(D Felony)

Minimum $1,000
Maximum $5,000

Up to 7 Years

Minimum 18-Month Revocation

Table 6: DRIVING WHILE ABILITY IMPAIRED BY ALCOHOL

CONVICTION

FINE

JAIL SENTENCE

LICENSE ACTION**

1st Offense
(Traffic Infraction)

Minimum $300
Maximum $500

Up to 15 Days

90-Day Suspension

2nd Offense
Within 5 years
(Traffic Infraction)

Minimum $500
Maximum $750

Up to 30 Days

Minimum 6-Month Revocation

3rd Offense
Within 10 years
(Misdemeanor)

Minimum $750
Maximum $1,500

Up to 180 Days

Minimum 6-Month Revocation

Table 7: ZERO TOLERANCE
Drivers Under 21 (DMV administrative finding of .02% to .07% BAC)

 

CIVIL PENALTY

LICENSE ACTION

ADDED FEE

1st Offense

Minimum $125

6-Month Suspension

$100 Suspension Termination Fee

2nd Offense

Minimum $125

1-Year Revocation or until age 21, whichever is longer

$100 Re-Application Fee

A prior finding that a person under age 21 has operated a motor vehicle after having consumed alcohol has the same effect as a prior conviction solely for the purpose of determining the length of any license suspension or revocation required to be imposed (1192).

The DMV commissioner determines when a license can be returned. Its return or reinstatement is not automatic. The offender must reapply for his or her license and may have to take a test.

Permanent Revocations

The law mandates a permanent license revocation for a conviction for any DUI related offense carrying a possible prison sentence for offenders who:

1. during the prior four-years have been convicted twice of DUI related offenses at least one of which was punishable by a possible prison term ( 1193.2(b)(12)(a)) or

2. during the prior eight years have been convicted three times for DUI related offenses at least two of which were punishable by a possible prison term.

But the DMV commissioner can waive the revocation after five years if the person has not been convicted of a DUI offense or refused to take a BAC test during that time and if the driver:

1. provides acceptable documentation to the commissioner that he or she has voluntarily enrolled in and successfully completed an appropriate rehabilitation program; or

2. is granted a certificate of relief from disabilities by the court in which he or she was last sentenced.

The law specifies that the commissioner may, on a case by case basis, refuse to restore a license which otherwise would be restored in the interest of the public safety and welfare ( 1193.2(b) (12) (a)-(c)).

New York law also provides for a permanent revocation upon:

1. a finding of refusal to submit to a BAC test after having been convicted three times within four years of a DUI related offense within the prior four years,

2. a fourth conviction of any DUI related offense after having been convicted of any DUI related offense within the past four years;

3. a finding of refusal to submit to a BAC test after having been convicted four times within the prior eight years of a DUI related offense; or

4. a fifth conviction of any DUI related offense after having been convicted of four DUI related offenses within the prior eight years ( 1193.2(b)(12)(d)).

But the commissioner can waive the revocation after eight years if the person has not been convicted of a DUI offense or refused to take a BAC test during that time and if the offender:

1. provides acceptable documentation to the commissioner that he or she has voluntarily enrolled in and successfully completed an appropriate rehabilitation program; and

2. is granted a certificate of relief from disabilities by the court in which such person was last sentenced.

The commissioner may, on a case by case basis, refuse to restore a license which otherwise would be restored in the interest of the public safety and welfare ( 1193.2(b)(12)(e)).

(A Certificate of Relief from Disabilities restores most of the rights that are lost due to a felony conviction. Offenders are eligible if they have not been convicted of more than one felony.)

Restoration of License Prohibited. The law prohibits the restoration of a license to someone who has been convicted twice of driving while intoxicated, driving while impaired by the use of a drug, driving while impaired by the combined influence of drugs or of alcohol and any drug or drugs where physical injury has resulted in each instance.

Alcohol and Drug Rehabilitation Program

Program Establishment. New York established by law an alcohol and drug rehabilitation program within the department of motor vehicles (DMV) ( 1196). The DMV commissioner must establish, by regulation, the instructional and rehabilitative aspects of the program. The program must consist of at least 15 hours and include classroom instruction in areas the commissioner deems suitable. No person may be required to attend or participate in the program or any aspect of it for more than eight months except on recommendation of the Department of Mental Hygiene or appropriate health officials administering the program on behalf of a municipality.

Curriculum. The DMV commissioner sets the form, content and method of presentation of the various aspects of program. The commissioner may consult with the commissioner of mental health, the director of the division of alcoholism and alcohol abuse, the director of the division of substance abuse services, and any other state department or agency and request and receive assistance from them. The commissioner may also develop more than one curriculum and course content for the program in order to meet the varying rehabilitative needs of the participants.

Eligibility. Participation in the program is limited to people:

1. convicted of alcohol or drug-related traffic offenses or adjudicated youthful offenders for alcohol or drug-related traffic offenses, or

2. under age 21 found to have been operating a motor vehicle after having consumed alcohol, who choose to participate and who satisfy the criteria and meet the requirements for participation.

But the judge imposing sentence may prohibit the defendant from enrolling in the program. The commissioner may exercise discretion to reject any person from participating. Offenders do not have a right to be included in any course or program.

No person may participate if, during the five years immediately preceding an alcohol or drug-related traffic offense the person has participated in a program or been convicted of driving while impaired, under the influence, or with a BAC of .08% or more. The commissioner

may expel any participant from the program who fails to satisfy the program's requirements or satisfactorily participate in or attend any aspect of such program.

The law specifies that notwithstanding any contrary provisions in the DUI laws, satisfactory participation in and completion of a course in such program results in the termination of any sentence of imprisonment that may have been imposed for a conviction. But the law specifies that this provision does not delay the commencement of the sentence.

Effect of Completion. Except as noted below, upon successful completion of a course in the program as certified by its administrator, a participant may apply to the commissioner to terminate the suspension or revocation order issued as a result of the participant's conviction which caused the participation in the course. On receipt of the application, and on payment of any civil penalties for which the applicant may be liable, the commissioner may terminate the order or orders and return the participant's license or reinstate the privilege of operating a motor vehicle in New York. However, the commissioner may not issue any new license or restore any license:

1. until the minimum license suspension or revocation period specified by law has occurred,

2. where the violation was committed while driving a school bus, or

3. or to people holding a commercial driving license or a driver under age 21.

Fees. The law directs the DMV commissioner to establish a schedule of fees to be paid by or on behalf of each participant in the program, and authorizes the commissioner to modify it. The fees must defray the ongoing expenses of the program. But pursuant to an agreement with the department, a municipality may conduct a course in the program with all or part of the expense being borne by the municipality. The fee is not refundable, either for reasons of the participant's withdrawal or expulsion from the program or otherwise.

Special Procedures and Disposition Involving Alcohol and Substance Abuse Assessment and Treatment

Mandatory Screening. The law requires the court to order defendants accused of driving while impaired by alcohol, intoxicated, with a BAC of .08% or above but not more than .15%, or by drugs to submit to screening for alcohol or substance abuse and dependency using a standardized written screening instrument developed by the office of alcoholism and substance abuse services, to be administered by an alcohol or substance abuse professional ( 1198-a).

Mandatory Assessment. The law requires the court to order a defendant to undergo a formal alcohol or substance abuse and dependency assessment by an alcohol or substance abuse professional or a licensed agency

1. when the screening indicates that a defendant is abusing or dependent upon alcohol or drugs;

2. following the arraignment of any person charged with or, at the court's discretion, before the sentencing of any person convicted of a driving under the influence related offense, when the person has either been convicted of (a) one of the following crimes during the preceding five years or (b) two or more of the following crimes during the preceding ten years: driving under the influence related crimes, vehicular assault in the 1st or 2nd degree, aggravated vehicular assault, vehicular manslaughter in the 1st or 2nd degree, or aggravated vehicular homicide; or

3. following the arraignment of any person charged with or, at the discretion of the court, before sentencing of any person convicted of operating a motor vehicle while intoxicated or with a BAC .15% or more.

The assessment must be performed by an alcohol or substance abuse professional or a licensed agency, which must forward the results in writing to the court and to the defendant or his or her counsel within 30 days of the date of such order.

Authorized Disposition. When a sentence of probation or conditional discharge is imposed on a person who has been required to undergo an alcohol or substance abuse and dependency assessment and where the assessment indicates that the person is in need of treatment for alcohol or substance abuse or dependency, the court must require, as a condition of the sentence, that the person participate in and successfully complete treatment. The treatment must be provided by an alcohol or substance abuse professional or a licensed agency.

Relationship with Alcohol and Drug Rehabilitation Program Established Under 1196. Any case wherein a court has accepted a plea agreement that includes as a condition that the defendant attend and complete the alcohol and drug rehabilitation program established under 1196, (as described above) including any assessment and required treatment required thereby, is deemed to comply with the provisions of 1198a. 

Effect of Completion of Treatment. The law gives the court the same authority for defendants that complete this program as it does for those who complete the alcohol and treatment program under the alcohol and drug rehabilitation program established under 1196. This includes ending the license suspension after the minimum suspension period the law establishes.

Conditional Licenses

New York law allows the DMV commissioner to issue conditional licenses to DUI offenders under certain circumstances. Such a conditional license is valid only for use by the holder:

1. to and from the holder's place of employment;

2. if the holder's employment requires the operation of a motor vehicle then during working hours:

3. to and from a class or an activity, which is an authorized part of the alcohol and drug rehabilitation program and at which attendance is required;

4. to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training;

5. to or from court ordered probation activities;

6. to and from a motor vehicle office for the transaction of business relating to the license or program;

7. for a three hour consecutive daytime period, chosen by the administrators of the program, on a day during which the participant is not engaged in usual employment or vocation;

8. to and from a medical examination or treatment as part of a necessary medical treatment for the participant or member of the participant's household, as evidenced by a written statement from a licensed medical practitioner; and

9. to and from a place, including a school, at which a child or children of the holder are cared for on a regular basis and which is necessary for the holder to maintain such holder's employment or enrollment at an accredited school, college, or university or at a state approved institution of vocational or technical training.

Conditional licenses remain in effect during the term of the suspension or revocation unless revoked by the commissioner.

The law specifies that certain offenders cannot get a conditional license.

Revocation of the Conditional License. The commissioner may revoke the conditional license for sufficient cause including, but not limited to,

1. failure to register in the program;

2. failure to attend or satisfactorily participate in the sessions;

3. conviction of any traffic infraction other than one involving parking, stopping, or standing; or

4. conviction of any alcohol or drug-related traffic offense, misdemeanor, or felony

In addition, the commissioner, after a hearing, may revoke the conditional license upon receiving notification or evidence that the offender is not attempting in good faith to accept rehabilitation.

Violations by Conditional License Holder. It is a traffic infraction for the holder of a conditional license to operate a motor vehicle on a public highway for any use other than those authorized by law. When a person is convicted of this offense, the sentence is a fine of $200 to $500, or a prison term of up to 15 days, or both. Additionally, the commissioner must revoke the conditional license.

No Conditional License for Commercial Vehicles. A conditional license is not valid for the operation of any commercial motor vehicle or taxi cab.

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