First DWI Sentencing

 

What is the sentence if you are convicted of your first Misdemeanor DWI in Buffalo NY

First DWI Sentencing Buffalo NY DWI Attorney

DRIVING WHILE INTOXICATED- 1ST OFFENSE, in violation of Vehicle and Traffic Law 1192 (03), an UNSPECIFIED MISDEMEANOR The following assumes that the defendant was operating an ordinary motor vehicle rather than a special or commercial vehicle. The sentence must include either a fine, or imprisonment, or both a fine and imprisonment. VTL 1193(1). The sentencing possibilities are:
1) A definite sentence of imprisonment of up to 1 year. VTL 1193(1)(b),

2) Intermittent imprisonment for any term that could be imposed as a definite sentence, if the court is not imposing any other sentence of imprisonment upon the defendant at the same time, and if the defendant is not under any other sentence of imprisonment having a term in excess of 15 days imposed by any other court. Penal Law 60.01(2)(a)(ii) and 85.00,

3) Probation for 3 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through probation supervision, and (iii) such disposition is not inconsistent with the ends of justice. Penal Law 60.01(2)(a)(i) and 65.00. The conditions of probation must include the installation and maintenance of an ignition interlock device. VTL 1193(1)(b),

4) If the conditions of probation include a condition that the defendant not operate a motor vehicle or apply for a license to operate a motor vehicle during the period of the condition, then the commissioner of motor vehicles may not restore the defendant's license until the period of the condition has expired. VTL 1193(2)(e)(5),

5) Conditional discharge for 1 year, if the Court having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate. Penal Law 60.01(2)(a)(i) and 65.05,

6) Any sentence of probation or conditional discharge must be accompanied by a sentence to pay a fine. VTL 1193(1)(e),

7) A split sentence including both imprisonment and either 3 years of probation or 1 year of conditional discharge. The imprisonment may be either a definite sentence of imprisonment of up to 60 days, or intermittent imprisonment of up to 4 months. Penal Law 60.01(2)(d),

8) A fine of not less than 500 dollars nor more than 1,000 dollars. VTL 1193(1)(b),

9) A fine may be imposed by itself or in addition to imprisonment, probation, or conditional discharge. VTL 1193(1)(b) and Penal Law 60.01(2)(c),

10) If a victim is seeking restitution or reparation, the court must consider ordering it, and if not ordered, the court must state its reasons on the record. If restitution is ordered, the amount will be increased by a 5 percent surcharge that goes to the collection agency. Penal Law 60.27(1); CPL 420.10(8),

11) An additional surcharge of up to 10% may be collected upon the filing of an affidavit by the collecting agency and approval by the sentencing court. Penal Law 60.27(8); CPL 420.10(8),

12) In almost all cases the collecting agency will be the local County Probation Department,

13) The defendant must pay a mandatory surcharge of 395 dollars (or 400 dollars if the proceeding is in a town or village court) and a crime victim assistance fee of 25 dollars, unless restitution or reparation has been made,

14) The Court must revoke the defendant’s driver’s license, and may revoke his registration, for 6 months. VTL 1193(2)(b),

15) If the defendant was under 21 when the offense was committed, his driver’s license must be revoked for one year, but if the defendant had previously been found to have consumed alcohol in violation of VTL 1192-a or had previously been convicted of, or adjudicated a youthful offender for, a VTL 1192 offense, then the revocation must be for one year or until the defendant reaches 21, whichever is longer. VTL 1193(2)(b)(6-7),

16) Upon sentencing, the court must issue an order revoking the license, and the defendant shall surrender the license to the court. The court may issue an order making the revocation effective twenty days after sentencing, if the defendant has not been convicted of any violation of VTL 1192 or of any violation of article 120 or 125 of the Penal Law within the preceding five years, and if the defendant was not charged with any such violation of the Penal Law in the present case. VTL 1193(2)(d),

17) The new law, Leandra's Law, also requires upon conviction that the Defendant install an Ignition Interlock Device on his or her vehicle and any vehicle that the Defendant has access to for a period of one year,

18) The court may require the defendant, as a part of or as a condition of the sentence, to attend a single session conducted by a victims impact program concerning the impact of operating a motor vehicle while under the influence of alcohol or drugs. VTL 1193(1)(f),

19) Minimum additional penalties apply to persons who violate VTL 1192, subdivision (2) or (3), within 5 years after being convicted of either of those subdivisions. If there was one such previous conviction within 5 years, then, in addition to any other penalties imposed, the sentence must include 5 days of imprisonment or 30 days of community service. If there were two or more such previous convictions within 5 years, then, in addition to any other penalties imposed, the sentence must include 10 days of imprisonment or 60 days of community service. In either case, the court must order installation of an ignition interlock device on each motor vehicle owned by the defendant, to remain installed during any period of license revocation required to be imposed, and, upon termination of the revocation period, for an additional period as determined by the court.

20) Additionally, the court must order that such person receive an assessment of the degree of their alcohol abuse, and where the assessment indicates the need for treatment, the court is authorized to impose treatment as a condition of sentence. VTL 1193(1-a),

21) In addition to any other fines, fees, penalties and surcharges, any person convicted of violating any subdivision of VTL 1192 must pay a driver responsibility assessment of 250 dollars per year for three years. The Department of Motor Vehicles, not the Court, is responsible for notifying the defendant of this obligation and collecting payment. Failure to pay will result in suspension of the defendant's driver's license until payment is made. VTL 1199.