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Aggravated Per Se DWI: NY VTL 1192.2(2-a)

Whether you’re arrested by the NYPD and prosecuted by the Manhattan or Brooklyn District Attorney, or by the respective police agency in Somers, White Plains, Harrison, Brewster, Carmel, Nyack or New City, knowledgeable DWI lawyers know that all misdemeanor drunk driving crimes are not equal. Per Se Aggravated DWI, VTL 1192.2(2-a), one of multiple Leandra’s Law crimes including the felony drunk driving with a child in the car, is such an offense. This enhanced Driving While Intoxicated or Driving Under the Influence misdemeanor involves a BAC of .18 or greater and exposes you to far more significant penalties at your sentencing. As dictated by statute, however, not only are the increased punishments associated with this offense more serious, but prosecutors are limited in their ability to offer you the non-criminal infraction of VTL 1192.1, Driving While Ability Impaired, even if they wanted to reduce your case as a first-time offender. In other words, the best possible offer from an Assistant District Attorney, barring dismissal of the Aggravated DWI charge or an acquittal at trial, is another misdemeanor.

Elements of the Crime

Really no different than the more common .08 Per Se DUI crime of VTL 1192.2 other than how it relates to your BAC, Aggravated DWI criminalizes operating a motor vehicle of any type on a public highway where you had a .18 of one per centum or more by weight of alcohol in your blood as determined by a chemical test. Usually identified through a Breathalyzer, Alconsensor, or Intoxylizer through blowing into the respective machine, the law allows a test of not only your breath, but your blood, saliva or urine.

Keep in mind that driving in a parking lot or even a private road may nonetheless expose you to criminal liability if accessible to public vehicles.

Penalties and Punishment

Should you be convicted of VTL 1192.2(2-a), the following penalties and punishments are possible:

  • Up to one year in jail
  • Probation for up to three years
  • A fine no less than $1,000 and up to $2,5000
  • A one year license revocation
  • Attendance at a Victim Impact Panel
  • Installation of an ignition interlock device on your vehicle

Other non-criminal penalties include:

  • A $250 per year assessment through the DMV for three years
  • A $395 surcharge in court

In the event you are convicted a second time for this offense, your counsel will certainly need to diligently and zealously advocate as jail will likely be part of any sentence. Moreover, your license revocation will be eighteen months as opposed to one year.

Your Case, Your Defense, Your Future

While not a felony like Aggravated DWI with a child in the car, VTL 1192.2(2-a) is an heightened misdemeanor that prosecutors, as a mater of law, are limited in reducing. If your lawyer is going to succeed in convincing law enforcement to dismiss this offense to allow for a non-criminal plea or secure an acquittal at trial, he or she will need to relentlessly pursue all viable strategies. For example, did the police operate a legal checkpoint? If not, did they lack probable cause to ultimately make the arrest? Has your counsel examined the records certifying the maintenance of the Portable Breath Test (PBT), Alconsensor, or other device? Were you properly advised both or your rights and Mirandized? Is there a video of what transpired? If so, does it accurately reflect what the NYPD, NYS Police or County Police is asserting in the accusatory instrument? Were you actually operating the vehicle as a matter of law? There may be many viable defenses, but you need to take the time to identify them if you are to succeed.

Whether you are in a car accident, the police find you stopped on the side of the road, you are pulled over for allegedly failing to signal when changing lanes or you were “caught” in a checkpoint, any conviction can wreck your life from your career to everyday activities – school, medical treatment, work, and family responsibilities. Indelible and permanent, avoiding a conviction and its consequences is priority number one.

Take the initiative. Protect your rights. Pursue your options. Educate yourself about DWI crimes in New York as well as their direct and collateral consequences. Let the former DUI prosecutors and criminal defense team at Crotty Saland PC represent with their advocacy, knowledge and experience.

Call the New York Aggravated DWI defense attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today.

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