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DWAI as a Misdemeanor

February 13, 2008

Driving While Ability is Impaired is a traffic infraction. As such, and in the usual situation, it is punishable not only by a fine, but by imprisonment in a penitentiary or county jail for a term of not more than 15 days. In the event that the motorist has been convicted of any violation of Vehicle and Traffic Law ' 1192, within the preceding five years, it remains an infraction but the fine goes up, this time to not less than $500 nor more than $750. The available term of imprisonment increases as well, this time to not more than 30 days.

When the motorist is convicted of Driving While Ability is Impaired on yet a third occasion, it becomes a crime. As a result of a 1994 amendment, [a] person who operates a vehicle in violation of such subdivision after having been convicted two or more times of a violation of any subdivision of section eleven hundred ninety‑two of this article within the preceding ten years shall be guilty of a misdemeanor, and shall be punished by a fine of not less than seven hundred fifty dollars nor more than fifteen hundred dollars, or by imprisonment of not more than one hundred eighty days in a penitentiary or county jail or by both such fine and imprisonment.

When one sits down and considers the fact pattern required to bring this provision into play, he or she will quickly realize that it is not an altogether uncommon scenario. Take for instance the following situation. In 1987 Charlie is charged with Driving While Intoxicated and registers a 0.15 on a Breathalyzer7 test given within two hours of his arrest. As a result of fairly liberal plea bargaining policies that were then in place, he is offered the opportunity and accordingly pleads guilty to Driving While Ability is Impaired. In 1992, Charlie is again arrested, this time following an accident. A blood test discloses a 0.21 and Charlie pleads guilty to Driving While Intoxicated as a Misdemeanor for which he receives the maximum fine. In 1996, Charlie is again charged, this time at a field sobriety checkpoint. This time Charlie refuses not only the chemical test, but the field sobriety tests as well. An experienced drinker, he doesn't look overtly intoxicated although as a result of his prior record the offer is six-months in the county jail upon a plea to the charge. Charlie, who by this time has gotten a rather good grasp of the ropes, sees it as a no brainer and proceeds to trial. The result, of course, is both expected and unexpected. The verdict was impaired but counsel's efforts go for naught as our hapless friend is led off to serve the same six-month sentence.

Surprisingly, this amendment is yet to garner any case law of its own, although perhaps it ought to.

The first issue that is presented is what is the mode of trial? Oddly enough, this depends upon where the Defendant is being tried. From a constitutional perspective, the Sixth Amendment does not require a jury trial for petty offenses punishable by a maximum of six months imprisonment (see, Baldwin v. New York, (1970) 399 US 66, 26 L Ed 2d 437). Even so, such is required outside of the City of New York when such is the potential sentence. CPL ' 340.40 provides that [i]n any local criminal court a defendant who has entered a plea of not guilty to an information which charges a misdemeanor must be accorded a jury trial, conducted pursuant to article three hundred sixty, except that in the New York city criminal court, the trial of an information which charges a misdemeanor for which the authorized term of imprisonment is not more than six months must be a single judge trial. In the context of DWAI, CPL ' 340.40 therefore creates a potential trap for both upstate Courts and counsel mandating that every effort be made to determine the motorist's prior record before undertaking a trial. What of the situation where the Defendant's record comes to light following the trail? Will simply sentencing the motorist as though he or she were simply a second time offender suffice? I think not. The difficulty here is that the motorist was statutorily entitled to a trial by jury. What he or she actually did was waive a trial by jury, albeit by accident or mistake. Such, of course, will not constitute a permissible waiver under the rigid terms of CPL ' 270.35 (see, People v. Page, (1996) 88 NY2d 1, 643 NYS2d 1, 3 NY DWI Bulletin 11). Therefore, even if sentencing is not a consideration, outside the City of New York, three in ten mandates a jury trial unless properly waived.

With that having been said, let's look at the more substantive issues. First, when the Defendant is tried for misdemeanor DWAI, are the prior convictions elements of the offense sought to be prosecuted? Let's begin our inquiry by returning to the Vehicle and Traffic Law. Driving a motor vehicle while in an impaired condition is proscribed by Vehicle and Traffic Law ' 1192(1). This section merely sets forth, with no indication as to classification, that [n]o person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol. Classification and sentencing are thereafter left to Vehicle and Traffic Law ' 1193(1)(a) which makes it either an infraction or a misdemeanor depending upon the number of prior convictions. While it is true that ' 1193(1)(a) merely pertains to sentence and not ostensibly to the elemental requirements of the statute, as we will see, this may be without consequence.

While no court has yet considered whether the two prior ' 1192 convictions within the preceding ten years are an element of the underlying misdemeanor offense, I submit that rather persuasive precedent says that it is. Let's consider the a felony under Vehicle and Traffic Law '' 1192(2) or 1192(3). Like its lowly impaired counterpart ' 1192(1), both of these substantive statutes merely set out the nature of the conduct sought to be prohibited. Section 1192(2) prohibits operation with 0.10 per centum or more of alcohol in the bloodstream while ' 1192(3) prohibits operation in an intoxicated condition. Importantly, nowhere do either of these subsections set fort the level of the offense. Just as with ' 1192(1), determination of the level of the offense is left to Vehicle and Traffic Law ' 1193. Moreover, one is not free to ignore the architecture of the respective sections. A third violation of Vehicle and Traffic Law ' 1192(1) is made a misdemeanor by virtue of the declaration contained in ' 1193(1)(a) that a person who operates a vehicle in violation of such subdivision after having been convicted two or more times . . . within the preceding ten years shall be guilty of a misdemeanor. When one looks to the felony provision, one finds the format to be indistinguishable. Vehicle and Traffic Law ' 1193(1)(c) declares a person who operates a vehicle in violation of subdivision two, three or four of section eleven hundred ninety‑two of this article after having been convicted of a violation of subdivision two within the preceding ten years, shall be guilty of a class E felony.

The identical nature of these two provisions is all important, if not dispositive of the character of Vehicle and Traffic Law ' 1193(1)(a). In discussing the elemental implications of this section's felony analog [Vehicle and Traffic Law ' 1193(1)(c)] the Court of Appeals has declared:

To make a prima facie showing that the offense of felony DWI (Vehicle and Traffic Law ' 1192 [3]; ' 1193 [1] [c]) has been committed, sufficient proof must be adduced before the Grand Jury to establish that the person charged has a prior conviction for driving while intoxicated or alcohol‑impaired within the last 10 years.

People v. Van Buren, (1993) 82 NY2d 878, 880, 609 NYS2d 170.


As we are well aware, when the charge is Driving While Intoxicated as a felony, the prior conviction raises the grade of an offense, and thus becomes an element of the higher grade offense (People v. Cooper, (1991) 78 NY2d 476, 478, 577 NYS2d 202). The identical statutory construction of Vehicle and Traffic Law ' ' 1192(1) and 1193(1)(a) similarly mandate proof of the prior convictions before a conviction for a misdemeanor may be had.

Not to be confused is the situation described by CPL ' 400.40. This section sets forth that it is applicable in instances where:

a conviction is entered for an unclassified misdemeanor or for a traffic infraction and the authorized sentence depends upon whether the defendant has a previous judgment of conviction for an offense, or where a conviction is entered for a violation defined outside the penal law and the amount of the fine authorized by the law defining such violation depends upon whether the defendant has a previous judgment of conviction for an offense, such issue is determined as provided in this section.


This provision has nothing to say about advancing the level of the offense which thereafter requires enhanced sentencing. Applicability is limited to those occasions where the conviction is for an unclassified misdemeanor and the sentence is enhanced as a result of the prior conviction. It is worth repeating at this point that in the situation under discussion, but for the prior offenses, the conviction would be for an infraction.

The elemental significance of the prior convictions appears to raise another problem for which the Criminal Procedure Law is unprepared. CPL ' 200.60 sets out the procedure to be followed [w]hen the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter[.] Commencing with the pronouncement that an indictment for such higher offense may not allege such previous conviction, it goes on to describe the well known technique where the special information is employed to place the prior conviction before the Court without placing it before the jury. The procedure is mandatory and requires that after commencement of the trial and before the close of the People's case, the Court, in the absence of the jury, must arraign the Defendant upon such special information[.] It is at this stage when the Defendant is given the opportunity to admit the previous conviction, deny it or remain mute. If the Defendant denies the conviction or stands mute, People v. Cooper, supra, mandates that it becomes an element to be proven during the course of the trial. If, on the other hand, the Defendant admits the prior conviction, Cooper dictates that when the Defendant admits the prior offense, he exercises the statutory right created by CPL ' 200.60 to keep all reference of his or her earlier conviction from the jury's knowledge Cooper at 482.

Simple and straightforward as the application of Cooper seems to be, difficulty can arise when one recognizes that CPL ' 200.60 pertains to indictments. Will this seeming limitation mean that the special information procedure set forth under that section will have no utility when the offense is charged by means of an information? In our opinion, two factors seem to say that it should not. First, there is the element of fundamental fairness. As noted by the Court in Cooper, the procedure set out by CPL ' 200.60 stems from the Judge Fuld's dissent People v. DeSantis (1953) 305 NY 44, 110 N.E.2d 549, wherein he declared: Patently unfair, unquestionably prejudicial, the practice of charging a defendant as a prior felony offender in the indictment and permitting proof thereof at the trial, should be condemned and outlawed. When ' 275‑b of the Code of Criminal Procedure, the predecessor of the present statute, was enacted, many District Attorneys recognized the potential for unfairness and supported this crucial piece of legislation (Bill Jacket, L 1957, ch 540, at 8). Moreover, in the present context of enhancing Driving While Ability is Impaired from an infraction to a misdemeanor, one should not ignore the dramatic increase in the severity of the potential period of incarceration. Whereas a motorist who is convicted of simple Driving While Ability is Impaired may only be incarcerated a period of 15 days, where the conviction is had for the identical offense, albeit as a misdemeanor, the maximum period of incarceration undergoes a more than ten-fold increase to 180 days.

Equitable arguments aside, even a quasi statutory basis can be found for imposing the procedures outlined in CPL ' 200.60. In matters of pleading, such as severance, consolidation and amendment of informations, the CPL exhibits a decided preference for following the statutory mandates established for indictments (see, CPL ' 100.45).

The lack of legislative specificity has also raised Due Process and other statutory considerations. As we observed last issue, CPL ' 30.30, as presently enacted, does not apply when the charge is one of Driving While Ability is Impaired. Likewise, where the charge is a misdemeanor the Defendant is entitled to be charged by information. Without specifying up front, so to speak, whether the sought after conviction will be a misdemeanor or a traffic infraction, these crucial issues will remain in statutory limbo.

While the issue of whether a special information is required to properly plead Driving While Ability is Impaired as a misdemeanor is one which is yet to be reached by the Courts of this state, it has arisen in a slightly different yet pertinent context. In People v. Denise L., (1994, NYC Crim Ct) 159 Misc2d 1080, 608 NYS2d 40, the Defendant was charged, inter alia, with loitering for the purpose of engaging in a prostitution offense (Penal Law ' 240.37[2]). This offense permits enhanced criminal exposure by elevating the grade of crime charged from a violation to a misdemeanor if the Defendant has been convicted previously of either loitering for the purpose of engaging in a prostitution offense (Penal Law ' 240.37[2]), prostitution (Penal Law ' 230.00), or patronizing a prostitute in the second degree (Penal Law ' 230.05). In Denise L., the Defendant had previously been convicted of a prostitution offense and accordingly was charged with a misdemeanor. The issue not uncoincidentally, was whether the prosecution must file a special information or second crime offender statement in those cases where exposure to enhanced criminal liability is sought.

Holding that it must, Judge Grosso commenced by noting that [n]either the Criminal Procedure Law nor any reported decisions . . . specifically establish or define the procedural mechanism for pleading and proving the prior conviction in cases such as this. Turning to CPL ' 200.60 and People v. Cooper, supra, the Court determined:

In view of the legislative intent in other enhanced pleading and sentencing provisions of the CPL and Penal Law favoring specific notice to a defendant by the prosecutor where a prior conviction is to be used either to increase the grade of the offense or increase the exposure to incarceration, I hold that in those cases where the People seek to prosecute Penal Law ' 240.37(2) as a class B misdemeanor that a special information pursuant to CPL ' 200.60 must be filed.


While we are absolutely of the belief that the special information procedure must be followed when the People seek a conviction for Driving While Ability is Impaired as a misdemeanor, even in those (incorrect we believe) instances when the Court holds that no such pleading is required, the People are not yet out of the woods. There remains the matter of CPL article 400. Broadly, the various sections within these constitutionally mandated sections mandate that the Defendant be confronted with his or her prior convictions if and when the People seek to impose a harsher sentence as a result of a prior conviction. Without question, none of the situations set forth in article 400 pertain to enhancement of an infraction. Even so, given the rather dramatic increase in the potential sentence, there is simply no reason not to require a similar procedure to be employed. Moreover, it may well be that serious constitutional questions may exist in those situations where the trial court does not undertake to determine whether the individual previously convicted and the Defendant are one and the same and whether or not there are constitutional impediments to utilizing the prior convictions in this fashion.

It would seem that some sort of legislative correction is required, not only for Driving While Ability is Impaired, but for offenses such as engaging in a prostitution offense as well. Ideally, such enactment would take the form of a misdemeanor analog to CPL ' 200.60. While conforming changes would be required to the precise text, the necessary change could largely be accomplished by substituting the term local criminal court accusatory instrument for indictment.

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