Fiandach & Fiandach (Rochester NY)
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Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Ignition Interlocks

Q. Where can I find the salient provisions?

A. The provisions governing the new enactment can be found in Vehicle and Traffic Law § 1193(1)[b][ii].

Q. Who does the interlock provision apply to?

A. Subject to the effective date, which is discussed below, the requirement is imposed upon all that are convicted of violating Vehicle and Traffic Law §§ 1192(2) Driving While Intoxicated per se, 1192(2-a) Aggravated Driving While Intoxicated or 1192(3) Driving While Intoxicated.

Q. I don't see Vehicle and Traffic Law § 1192(1) Driving While Ability is Impaired. Does that mean that it dies not apply to individuals convicted under that section?

A. Correct.

Q. I also note that it does not apply to Vehicle and Traffic Law § 1192(4), Driving While Ability is Impaired by Drugs or Vehicle and Traffic Law § 1192(4-a) Driving While Ability is Impaired by a Combination of Alcohol and Drugs.

A. Correct, and that creates an interesting opt out in terms of plea bargaining.

Q. And what is that?

A. Plead to something that has "impaired" in the title and not necessarily Vehicle and Traffic Law § 1192(1).

Q. Obviously in the usual case the facts will support Driving While Ability is Impaired, but that may not always be available due to plea bargaining limitations, then what?

A. Don't overlook the obvious. For years I have observed that the majority of our clients are not only consuming alcohol, but are consuming alcohol in combination with a plethora of drugs ranging from Ritalin to Oxycodone. More likely than not, these drugs are being taking pursuant to a lawfully issued prescription. Likewise, these drugs also have a well known symbiotic effect when simultaneously taken with alcoholic beverages.

Q. So?

A. Clearly, only a fool would raise the simultaneous use of these drugs as a "defense" since Vehicle and Traffic Law § 1192(4-a) dictates that the effects thus created are a separate and prosecutable offense. Even so, when there appears to be no way out of a conviction under Vehicle and Traffic Law§§ 1192(2) Driving While Intoxicated per se, 1192(2-a) Aggravated Driving While Intoxicated or 1192(3) Driving While Intoxicated, you may want to consider requesting that the prosecutor amend the accusatory instrument to charge Vehicle and Traffic Law § 1192(4-a) Driving While Ability is Impaired by a Combination of Alcohol and Drugs and plead guilty to that offense.

Likewise, recognize that when you client has been charged with Vehicle and Traffic Law § 1192(4), Driving While Ability is Impaired by Drugs as a result of marijuana located or suspected in combination with an alcohol based charge, he or she may actually have been handed a gift.

Q. Does it apply to those adjudicated Youthful Offenders?

A. This is interesting. Although Vehicle and Traffic Law § 1193(1)[b][ii] only speaks of convictions, of which a Youthful Offender Adjudication is not (see, CPL § 720.10[4]), 9 NYCRR § 358.3 (d) provides that "The term "conviction" shall mean the entry of a plea of guilty or a verdict of guilty to a crime or youthful offender adjudication for a crime involving a violation of [VTL § 1192(2), (2-a) or (3),] or any crime defined by the Vehicle and Traffic Law or Penal Law of which an alcohol-related violation of any provision of [VTL § 1192] is an essential element."

Q. What occurs when a defendant is sentenced to the interlock program?

A. Where a Court sentences a person to an interlock, the Court must notify the DMV of such condition. (See, Vehicle and Traffic Law § 1198(4)[b]). In addition, every County must:

[E]stablish a procedure whereby the probation department and any other monitor will be notified no later than [5] business days from the date an ignition interlock condition is imposed by the sentencing court, any waiver of the cost of the device granted by the sentencing court, and of any intrastate transfer of probation or interstate transfer of any case which either has responsibility to monitor. Such procedure shall also establish a mechanism for advance notification as to date of release where local or state imprisonment is imposed (9 NYCRR § 358.4(d)(5). See also 9 NYCRR § 358.7(a)[1]).

Further, the device must be installed within 10 business days of sentencing (9 NYCRR § 358.7(c)(1)) and the defendant must provide proof of completion within 3 business days of installation (9 NYCRR § 358.7(c)(1)).

Q. Will an entry appear on the motorist's driving record?

A. Yes (Vehicle and Traffic Law §§ 1198(4)(b), 1198(3)(f)).

Q. Can the interlock device totally disable the vehicle?

A. Yes. There is a mode known as "lockout mode". Lockout mode occurs with a "failed start-up retest, a missed start-up re-test, a failed rolling re-test or a missed rolling re-test within a service period, or a missed service visit." 9 NYCRR § 358.5(c)(2).

Q. What if the motorist disables the device?

A. Disabling an interlock device is a class A misdemeanor (see, Vehicle and Traffic Law § 1198(9)(a)-(e)).

Q. What about work related vehicles?

A. Where the defendant has to operate a motor vehicle owned by the defendant's employer for work-related purposes, the defendant is allowed to operate such vehicle without an ignition interlock device under the following conditions:

  1. Only in the course and scope of the defendant's employment;
  2. Only if the employer has been notified that the defendant is subject to the ignition interlock device requirement;
  3. Only if the defendant has provided the Court and the Probation Department with written proof indicating that the defendant's employer is aware of the ignition interlock device requirement and has granted the defendant permission to operate the employer's vehicle without an ignition interlock device only for business purposes; and
  4. The defendant has notified the Court and the Probation Department of his or her intention to so operate the employer's vehicle (Vehicle and Traffic Law § 1198(8); 15 NYCRR § 140.5(c); 9 NYCRR § 358.7(c)(5)).

Q. Must the motorist submit to regular service requirements?

A. Yes. Every defendant sentenced to the IID requirement must:

[S]ubmit to service visits within [30] calendar days of prior installation or service visits for the collection of data from the ignition interlock device and/or for inspection, maintenance, and recalibration purposes where the device does not automatically transmit data directly to the monitor; and submit to an initial service visit within [30] calendar days of installation and service visits within [60] calendar days of prior service visits where the device either automatically transmits data directly to the monitor for inspection, maintenance, or recalibration purposes or the device head is sent to the qualified manufacturer every [30] calendar days for such purposes, including data download.

9 NYCRR § 358.7(c)(2).

Q. Is a motorist entitled to see the data that is being reported by the device?

A. Again, the answer to that one is yes. An ignition interlock device manufacturer must:

[P]rovide, no more than monthly to the operator upon his or her request, the operator's usage history, including any report of failed tasks, failed tests, circumvention, or tampering. An operator may only make [1] request during any month for such information. Such request shall be in writing and provide either an email address or self-addressed stamped envelope.

9 NYCRR § 358.5(c)(6).

Q. Does the imposition of an interlock as a condition of probation in any manner limit the terms and conditions that a court might otherwise impose upon a sentence of probation?

A. No. Penal Law § 60.36 provides that "Where a court is imposing a sentence for a violation of [VTL § 1192(2), (2-a) or (3)] pursuant to [PL §§ 65.00 or 65.05] and, as a condition of such sentence, orders the installation and maintenance of an ignition interlock device, the court may impose any other penalty authorized pursuant to [VTL § 1193]. To a similar effect is Vehicle and Traffic Law §§ 1198(3)(e) which sets forth that "[n]othing contained herein shall prevent the court from applying any other conditions of probation or conditional discharge allowed by law, including treatment for alcohol or drug abuse, restitution and community service."

Q. What if the motorist is sentenced to jail or prison. Does the interlock requirement begin to run the day the defendant is sentenced?

A. No. Penal Law § 60.21 provides:

Notwithstanding [PL § 60.01(2)(d)], when a person is to be sentenced upon a conviction for a violation of [Vehicle and Traffic Law §§ 1192(2), (2-a) or (3)], the court may sentence such person to a period of imprisonment authorized by [Penal Law Article 70] and shall sentence such person to a period of probation or conditional discharge in accordance with the provisions of [Penal Law § 65.00] and shall order the installation and maintenance of a functioning ignition interlock device. Such period of probation or conditional discharge shall run consecutively to any period of imprisonment and shall commence immediately upon such person's release from imprisonment.

Q. When does the interlock law become effective?

A. The provisions became effective on August 15th, 2010.

The following are instructions given to motorists at sentencing who must install an interlock device.

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