Fiandach & Fiandach (Rochester NY)
toll free: 585.244.8910

ny dwi . com

Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
Let us dare to read, speak, and write ~ John Adams
 
 

Special Vehicles

February 14, 2008

Last issue we looked at commercial drivers licenses and provisions relating to alcohol influenced operating offenses. Today we look at a similar yet uniquely different topic, Special Vehicles.

Our examination of special vehicles begins with Vehicle and Traffic Law ' 1193(1)(d). This section, as revised November 1, 1996, provides in pertinent part that:

[A] violation of subdivision one, two, three or four of section eleven hundred ninety‑two of this article wherein the violator is operating a taxicab as defined in section one hundred forty‑eight‑a of this chapter, or livery as defined in section one hundred twenty‑one‑e of this chapter, and such taxicab or livery is carrying a passenger for compensation, or a truck with a GVWR of more than eighteen thousand pounds but not more than twenty‑six thousand pounds and which is not a commercial motor vehicle shall be a misdemeanor punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.

 


The foregoing is the basic provision relating to the operation of special vehicles. What should immediately be apparent is that unlike provisions relating to commercial vehicles, no discrete violations are created. Sanctions relating to operation of a special vehicle are dependant upon the classic alcohol influenced operating offenses as defined in Vehicle and Traffic Law ' 1192 subdivisions (1), (2), (3) and (4). What should also stand out is that when the motorist is operating a taxicab or a livery and such taxicab or livery is carrying a passenger for compensation, or the vehicle is a truck with a GVWR of more than eighteen thousand pounds but not more than twenty‑six thousand pounds, there is no distinction between Driving While Ability is Impaired (Vehicle and Traffic Law ' 1192[1]) and the criminal offenses set forth in Vehicle and Traffic Law '' 1192(2), 1192(3) and 1192(4). Notwithstanding the subdivision under which the motorist is convicted, the initial offense will be a misdemeanor, and as set forth above, is punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law or by both such fine and imprisonment.

After describing the threshold sanction, Vehicle and Traffic Law ' 1193(d)(1) proceeds to offer various enhancements based upon the cargo and type of the vehicle. The initial and most obvious enhancement pertains to school buses. Inclusive of more than the term bus as we know it to be, a school bus is defined by Vehicle and Traffic Law ' 142 as:

Every motor vehicle owned by a public or governmental agency or private school and operated for the transportation of pupils, children of pupils, teachers and other persons acting in a supervisory capacity, to or from school or school activities or privately owned and operated for compensation for the transportation of pupils, children of pupils, teachers and other persons acting in a supervisory capacity to or from school or school activities.

 

Effective November 1, 1996, school buses, carrying at least one student passenger, became special vehicles. In this regard, Vehicle and Traffic Law ' 1193(1)(d)(1-a) diverges from the identical treatment afforded a violation of Driving While Ability is Impaired and Driving While Intoxicated, Driving While Intoxicated, per se or Driving While Impaired by Drugs. When the vehicle being operated is a school bus, a violation of Vehicle and Traffic Law ' 1192(1), Driving While Ability is Impaired, is a misdemeanor punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the penal law or by both such fine and imprisonment (Vehicle and Traffic Law ' 1193(d)(1-a). In the event that the vehicle is a school bus and the operator is charged with a violation of Vehicle and Traffic Law '' 1192(2), 1192(3) or 1192(4), Vehicle and Traffic Law ' 1193(1)(d)(4-a) declares that the offense is an E-Felony and is punishable by a fine of not less than one thousand dollars nor more than five thousand dollars or by a period of imprisonment as provided in the penal law.


Should the operator be convicted of any subdivision of Vehicle and Traffic Law ' 1192 and previously punished under subdivisions (1), (1-a), (2) or (3) of ' 1193(1)(d) [special vehicles], he or she shall be guilty of a class E felony punishable by a fine of not less than one thousand dollars nor more than five thousand dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. While this point can be easily lost, it should be emphasized that a second conviction for Driving While Ability is Impaired, which is punished under the provisions relating to special vehicles, is punishable as an E felony even though the predicate conviction was for Driving While Ability is Impaired if the operator was punished for the prior impaired under the provisions relating to special vehicles.

Should the vehicle being operated at the time of arrest have a gross vehicle weight rating of more than eighteen thousand pounds and be transporting a load which contains flammable gas, radioactive materials or explosives, a violation of Vehicle and Traffic Law ' 1192(1) is a misdemeanor and is punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment. In the event that such cargo is being carried at the time of arrest and the operator is convicted of a violation of Vehicle and Traffic Law '' 1192(2), 1192(3) or 1192(4), the conviction, like that of a school bus operator, shall be class E felony punishable by a fine of not less than one thousand dollars and such other penalties as provided for in the penal law (Vehicle and Traffic Law ' 1193[5]).


Worthy of comment is the disparity afforded a felony conviction for enhanced special cargo (flammable gas, radioactive materials or explosives) and school bus operators. Vehicle and Traffic Law ' 1193(5) contains a rather unusual qualification. It declares that a conviction for such violation shall not be considered a predicate felony pursuant to section 70.06 of such law, or a previous felony conviction pursuant to section 70.10 of such law. This qualifying language is lacking from Vehicle and Traffic Law ' 1193(1)(d)(4-a) which presumably makes such treatment available for one who has been sentenced under this section.

Naturally, in addition to penal sanctions there exist licensing sanctions as well. Vehicle and Traffic Law ' 1193(2)(b)(4) provides that when the vehicle being operated is any vehicle other than a school bus, the license to operate a motor vehicle must be revoked for a minimum period of one year where the operator is convicted of any subdivision of Vehicle and Traffic Law ' 1192 and sentenced pursuant to Vehicle and Traffic Law ' 1193(1)(d), the threshold special vehicles provision.[i] Unfortunately, poor draftsmanship has seemingly omitted any licensing sanction in the event that sentencing is had pursuant to Vehicle and Traffic Law '' 1193(1)(d)(4) and ' 1193(1)(d)(5). Moreover, the particularity with which the statute has been drafted makes it exceedingly difficult to tell what licensing sanction is going to be applied.


When the vehicle being operated at the time of arrest is a school bus and the operator is subsequently convicted of a violation of any subdivision of Vehicle and Traffic Law ' 1192, the license to operate any motor vehicle shall be revoked for a period of one year if the holder is sentenced pursuant to subparagraphs (1), (1-a) or (4-a) of paragraph (d) of subdivision (1) of Vehicle and Traffic Law ' 1193. In the event that a school bus driver is convicted of any subdivision of Vehicle and Traffic Law ' 1192 and is subsequently sentenced pursuant to Vehicle and Traffic Law ' 1193(1)(d)(4) and, at the time of operation, the motorist was operating a school bus and he or she has been previously convicted of a violation of Vehicle and Traffic Law ' 1192 subdivisions 1, 2, 3 or 4 and was punished under the provisions relating to special vehicles, the period of revocation shall be for three years. It is important to point out in reference to this provision that is not necessary that the predicate conviction be for operation of a school bus; any prior offense which was sentenced to provisions relating to special vehicles will suffice.

Does there exist a conflict between provisions relating to commercial motor vehicles and special vehicles? Possibly in at least one area. Vehicle and Traffic Law ' 501-1(4)(v), which defines the term commercial motor vehicle includes a vehicle of any size used in the transportation of materials found by the United States Secretary of Transportation to be hazardous under the hazardous materials transportation act and which requires the motor vehicle transporting such materials to be placarded under the hazardous materials regulation, 49 CFR part 172, subpart F.

Thus, it may be that when hazardous materials are the basis of the charge, those provisions of Vehicle and Traffic Law ' 1193 seeking to regulate such vehicles as special vehicles have been preempted by Federal law and Vehicle and Traffic Law '' 1192(5) and 1192(6).

Must the People plead and prove that the type of vehicle or cargo falls within the parameters of the statutory definition of a special vehicle? We believe they must. When the prosecution seeks enhancement of sentence because the defendant was operating a special vehicle, such is clearly an element of the offense. In this regard an analogy may be drawn to the two in ten felony provision of Vehicle and Traffic Law ' 1193(1)(c). Notwithstanding its inclusion in Vehicle and Traffic Law ' 1193, the Court of Appeals has declared that establishment of the prior is necessary to put forth a prima facie case (People v. Van Buren, (1993) 82 NY2d 878, 880, 609 NYS2d 170).


Don't forget the mode of trial. Notwithstanding that DWAI is normally a traffic infraction which is triable to the Court, in any situation where the proof will be that the defendant was operating a special vehicle, a conviction will, at the minimum, be a misdemeanor punishable by a maximum of one year. CPL ' 340.40 therefore declares that the defendant must be accorded a trial by jury.



[i].The court also has the discretionary power to revoke the vehicle registration as well.



« Go Back

We Get Results!

Don't take our word for it, check our DWI defense results, testimonials & client reviews

100 Allens Creek Road • Building 100, 1st Floor
Rochester, NY 14618
585.244.8910
Toll-free Outside of Rochester: 800-592-6006
 
 

Visit Ed Fiandach's YouTube Channel
Ed Fiandach's YouTube Channel
 

Affiliations
Edward L. FiandachClients' ChoiceAward 2018

Avvo - Rate your Lawyer. Get Free Legal Advice.

10 Best Award DUI
Board Certified Specialist
National College for DUI Defense
Best Lawyers
Super Lawyers
BBB Reliability Program
 

NYDWI Bulletin
 

Fiandach Speaks
 

Quotes

“The clients of EDWARD FIANDACH of Brighton, one of the best known DWI defense lawyers in New York, were convicted of the top count only 13 percent of the time.”

- Reprinted from the
Rochester Democrat & Chronicle

 
 
 
Fiandach & Fiandach | 100 Allens Creek Road | Building 100, 1st Floor | Rochester, NY 14618
585.244.8910 | Toll-free Outside of Rochester: 800-592-6006 | http://www.nydwi.com
Copyright 1998-2019 Fiandach & Faindach. All rights reserved. | Attorney Advertising