Relates to operating a motor vehicle while under the influence of alcohol or drugs with a child passenger

Summary of provisions of the bill

Section 1 of the bill amends Vehicle & Traffic Law (VTL) § 1192(2-a) to add a new paragraph (b), creating the crime of aggravated driving while intoxicated with a child.

Section 2 of the bill amends VTL § 1192(12) to require a law enforcement officer to note when a child or person other than the offender has been killed or suffered serious physical injury; or when a child of fifteen years or under is present in the vehicle at the time of the arrest, and, when the operator of the vehicle is the parent, guardian, or custodian of such child, to make an appropriate report to the Department of Social Services.

Section 3 of the bill amends VTL § 1193(1)(b) and (c) to provide that aggravated driving while intoxicated with a child in violation of VTL 1192(2-a)(b) with a child is a class E felony. Section 3 of the bill also requires that, in addition to any fine or period of imprisonment for a conviction of subdivisions two, two-a or three of VTL §1192, the court shall also sentence such person to probation or conditional discharge, a condition of which shall be the installation and mainte- nance of an ignition interlock device for a period of at least six months. Any person charged with aggravated driving while intoxicated with a child would be prohibited from receiving a reduced charge to a non-criminal violation.

Section 4 of the bill amends VTL § 1193(1) to require the Department of Probation and Correctional Alternatives to promulgate regulations for the monitoring of compliance by persons who are ordered to install and maintain an ignition interlock device, which shall provide counties with options on how to do such monitoring.

Section 5 of the bill amends VTL § 1198(5)(1),(2), (3)(4) and (5)(a) to require that a court order a person convicted of a violation of VTL §1192 (2), (2-a) or (3) to install and maintain a ignition interlock device on any vehicle he or she owns or operates. This section also

provides that the cost of the ignition interlock device shall be borne by the offender unless such offender is determined by the court to be financially unable to afford the cost. Further, the circumvention of such a device or the operation of a vehicle in which an ignition inter- lock device has not been installed is a class A misdemeanor.

Section 5-a of the bill amends VTL § 1198(8) and (9) to make various offenses arising out of non-compliance with interlock requirements and tampering with such devices a Class A misdemeanor.

Section 6 of the bill amends VTL § 1198-a(2) to provide for the screen- ing and assessment for alcohol or substance abuse and dependency upon a charge of aggravated driving while intoxicated with a child in the second and first degrees.

Section 7 of the bill amends Penal Law § 120.04, vehicular assault in the first degree, a class D felony, to include a person who commits the crime of vehicular assault in the second degree and causes serious phys- ical injury to a passenger who is a child fifteen years of age or less.

Section 8 of the bill amends Penal Law § 120.04, aggravated vehicular assault, a class C felony, to include a person who commits the crime of vehicular assault in the second degree and engages in reckless driving and causes serious physical injury to a passenger who is a child fifteen years of age or less.

Section 9 of the bill amends Penal Law § 125.13, vehicular manslaughter in the first degree, a class C felony, to include a person who commits the crime of vehicular manslaughter in the second degree and causes the death of a passenger who is a child fifteen years of age or less.

Section 10 of the bill amends Penal Law § 125.14, aggravated vehicular homicide, a class B felony, to include a person who commits the crime of vehicular manslaughter, engages in reckless driving and causes the death of a passenger who is a child fifteen years of age or less.

Section 11 of the bill amends Executive Law § 259-c to require a person who is released on parole or conditional release, following a conviction for Penal Law §§ 120.03, 120.04, 120.04-a, 125.12, 125.13, 125.14 or a conviction for aggravated driving while intoxicated with a child, to install and maintain an ignition interlock device as a condition of that release.

Section 12 of the bill would amend Penal Law § 60.36 to provide that when a court orders the installation and maintenance of an ignition interlock device for a violation of VTL § 1192(2)(2-a) or (3), it may also impose any other penalty authorized under VTL § 1193.

Section 13 of the bill would add a new section 60.21 to the Penal Law to authorize the imposition of any applicable period of imprisonment upon a conviction for a violation of subdivisions two, two-a or three of section 1192 of the Vehicle and Traffic Law, including an indeterminate

term of imprisonment of up to four years if the conviction is for a class E felony, as well as any allowable term of probation or condi- tional discharge and to provide that such sentences shall run consec- utively. The addition of a new Penal Law §60.21 will ensure that persons convicted of driving while intoxicated and aggravated driving while intoxicated may be sentenced to the full range of penalties currently allowed for a misdemeanor or class E felony and must, additionally, be sentenced to a period of probation or conditional discharge in order to ensure the use and monitoring of ignition interlock devices.

Section 14 of the bill provides a severability clause.

Section 15 of the bill provides for an effective date within 30 days of enactment, provided however, that the amendments made by the bill concerning the ignition interlock device shall become effective 270 days after becoming law, and provided that the bill shall apply only to crimes committed after enactment, and to individuals sentenced after the effective date.

Existing law

Current law provides penalties when a person who drives while intoxicat- ed or while his or her ability is impaired by drugs or a combination of drugs and alcohol, however, an elevated penalty is not mandated when a child is a passenger in the vehicle.

Statement in support

While all persons who drive while intoxicated pose a danger to others, the person who knowingly chooses to drive drunk with children in the car has made a conscious decision to put those children at risk of harm or death. An adult can take steps to avoid riding with a drunk or impaired driver. But a child may not have that choice, particularly when the driver is a parent or guardian.

Currently a first DWI offense is a misdemeanor and may even be treated as a traffic infraction. This bill would make it a felony for an indi- vidual to drive while intoxicated or under the influence of drugs when a child fifteen years or younger is in the car. This bill would also prohibit a plea to a reduced, non-criminal charge for someone charged with DWI when a child is a passenger in the car. Finally, this bill will also require persons convicted of misdemeanor DWI offenses to install and maintain an ignition interlock device that will prevent such persons from driving under the influence of drugs or alcohol in the future. The use of such devices has proven an extraordinarily effective means of preventing recidivism by those who drive drunk.

Budget implications

This bill would not impose any costs on the State.

Effective date

This bill would be effective 30 days after enactment, provided however, that the amendments made by the bill concerning the ignition interlock device shall become effective 270 days after becoming law, and provided

that the bill shall apply only to crimes committed after enactment, and to individuals sentenced after the effective date.