October 17, 2013

The Law and You: Oct. 17, 2013

By PENNY CLUTE, The Law and You

---- — Perhaps you’ve noticed news items about someone being arrested for driving while intoxicated (DWI) in New York, and the story includes that there was a child in the vehicle. 

Now, the presence of a child who is 15 or younger raises a DWI charge to a felony.

In the past, a first DWI or driving while ability impaired by drugs (DWAI Drugs) would be a misdemeanor. 

However, now any misdemeanor DWI or DWAI Drugs, even a first offense, is automatically raised to a felony if there is a child younger than 16 in the motor vehicle. 

The felony is charged if there is a blood alcohol (BAC) of .08 or higher or if there is other evidence of intoxication by alcohol or impairment by drugs.


This new crime, Aggravated DWI/Child in Vehicle, is part of Leandra’s Law, which became effective in August 2010. It is also called the Child Passenger Protection Act, named so after an 11-year-old-girl who was killed while riding in a car driven by a friend of her mother; six other kids were injured in that crash.

This new felony applies to every alcohol-intoxicated or drug-impaired driver with a child in the vehicle. 

Parents who consume alcohol and then drive their kids anywhere are risking a felony. So are teenagers driving under the influence of alcohol or drugs with a 15-year-old in the car. 

If the defendant is convicted of a felony, the sentence options include up to four years in state prison, up to one year in county jail or five years of probation with or without jail time, as well as a mandatory $5,000 fine and other fees.


If a child passenger suffers serious injury in such an accident, a driver under the influence of alcohol or impaired by drugs can be charged with a higher-level felony that carries up to 15 years in state prison. 

If a child passenger is killed while riding with a person driving under the influence of alcohol or drugs, that is a felony requiring mandatory state prison, with a maximum sentence of 25 years.

When a parent, guardian, custodian or other person legally responsible for the child is charged with Aggravated DWI/Child in Vehicle, the police must make a report to New York’s statewide Central Register of Child Abuse and Maltreatment.


Separate from the child-passenger protection, Leandra’s Law also requires that all drivers convicted of misdemeanor or felony DWI must install an ignition interlock device for at least six months on all vehicles that the person owns or operates. 

This law was recently strengthened by adding defendants who have been granted Youthful Offender status to those required to install the device. 

In addition, now all ignition interlock devices must include a camera for positive photographic identification. 

With the device in place, the car will not start until the driver blows into the device and no alcohol is detected. The installation fee and monthly charges are the defendant’s responsibility.

When a court has ordered an interlock device and a defendant drives a vehicle without one, that is a new misdemeanor charge. 

Any person who assists someone in avoiding the interlock, for example by blowing into the device for the defendant so the vehicle will start, can also be charged with a misdemeanor punishable by up to one year in jail.


The intoxicated driver in Leandra’s case was taking the girls to a slumber party. Even here in Plattsburgh, we have seen parents arrested for DWI while driving their kids to school in the morning, on the way to the store or to a friend’s house. 

They made the erroneous calculation that, since they were only going a short distance, they wouldn’t get caught.

People who have been drinking or using drugs often think they are just fine. They do not recognize that their perceptions, judgment and physical reactions are impaired. 

Those driving in this condition are dangerous, both to others on the road and to passengers in their vehicles, as well as to themselves. 

New York law recognizes the extra risk to children in these situations.

Penny Clute has been an attorney since 1973. She was the Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until she retired in January 2012.