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Issues In NY Criminal Law--Vol. 3, #1©

Issue: How to compute the time period with a prior DWI conviction, for purposes of a felony DWI charge.

Driving While Intoxicated is one of the most serious misdemeanor charges in New York State. In addition to possible fines and jail, as well as the effect on one's drivers license, a second DWI charge within 10 years may result in it being prosecuted as a felony.

It should be noted that prosecuting the second charge as a felony is discretionary. This is in contrast to predicate felony (or second felony offender) status, which by statute the DA must pursue. CPL 400.21; People v Scarbrough, 66 NY2d 673, 496 NYS2d 409 (1985); Muldoon and Feuerstein, Handling a Criminal Case in New York, 21:106 (West Group 2000).

Both predicate felony offender status and felony DWI involve a conviction within 10 years. See Handling, 21:94 et seq.; 21:156 et seq. But the language of the two statutes differs.

In calculating the time for a predicate felony, the Penal Law states that "sentence must have been imposed more than ten years before commission of the felony . . .." Penal Law § 70.06(1) (b) (iv). In contrast, the felony DWI statute refers to committing the new offense "after having been convicted of" the predicate crime. Veh & Traf L § 1193(1) (c) (i).

Do these two phrases mean the same thing? That is, should the sentencing date be used to compute the 10-year period to determine whether felony DWI status may apply? Or is the date of conviction at trial or plea?

The term "conviction" is defined in the Criminal Procedure Law as "the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument . . .." CPL 1.20(13). See also, CPL 1.20(15) (definition of "judgment" as being the conviction as well as sentence imposed). Thus, where the defendant was sentenced on the prior DWI occurred within the 10-year limit, but the defendant pled guilty or was convicted at trial more than 10 years ago, felony DWI status should not apply. See also, Fiandach, New York Driving While Intoxicated, 2d ed., § 2:31. So, where sentencing was adjourned, e.g., for a Presentence Investigation, the time delay should not be used at a later point to increase a second DWI as a felony. The judgment of conviction, offered by the prosecutor as proof, which refers to the date of judgment, may not establish when the actual "conviction" took place.

There is no case law on all fours. The construction of the term "conviction" in one decision, People v McCright, 107 AD2d 766, 484 NYS2d 604 (2d Dept 1985), supports the above analysis, but the case is factually not on point. See also, People v Maldonado, 173 Misc2d 612, 661 NYS2d 937 (Sup Ct 1997) (dictum). Application of the term conviction" to statutes outside the CPL and Penal Law is proper. Gunning v Codd, 49 NY2d 495, 427 NYS2d 209 (1980).

The issue is not limited to felony DWI. Construction of this term may come up with other drinking-driving offense levels, e.g., two prior DWAIs within 10 years raising the current DWAI to a misdemeanor. Veh & Traf L §1193 (1) (a). It may also arise with other "enhanced" crimes that are under the Penal Law, e.g., Stalking 3rd, Unauthorized Use Motor Vehicle 2nd, and Criminal Contempt 1st. Like the DWI statute, these sections employ language that differs from the "predicate felony" statute.

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