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Aggravated DWI (With a Child)

Leandra's Law established VTL §1192(2b), which prohibits a person from operating a motor vehicle under the influence of alcohol or drugs while a child fifteen years or younger is a passenger in the vehicle.  Violation of this law is a class E felony. This law is commonly referred to as "aggravated DWI with a child."

Leandra’s Law strengthened DWI penalties by requiring that a person sentenced under VTL §1192(2b) on or after August 15, 2010, have an ignition interlock device (IID) installed on any vehicle they own or operate, and the driver have an IID restriction added to their driver’s license.

New York Lawyer for Lendra's Law DWI Offenses

If you are charged with a violation of VTL §1192(2b) in New York City or any of the five boroughs then call Attorney Rochelle Berliner. Ms. Berliner is experienced in representing men and women with this serious felony offense for driving DWI with a minor child who was 15 years or younger in the vehicle.

Call 718-261-5600 for a phone consultation or schedule a visit at the office conveniently located in Queens, N.Y.


Overview of Aggravated DWI with Child Charges


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History of Leandra's Law under VTL §1192(2b)

Leandra's Law was passed by the New York State Assembly and the New York State Senate and signed into law by Governor David Paterson on November 18, 2009.

In 2009, an 11-year-old named Leandra Rosado was killed in an accident, when the SUV in which she and six other children were passengers, crashed on the Henry Hudson Parkway in Manhattan. This law was enacted because  the mother of one of Leandra's friends was allegedly driving the car while intoxicated. 

Leandra's Law provides four seperate ways to commit the offense including the following: 

AGGRAVATED DRIVING WHILE INTOXICATED (WITH A CHILD) 1192(2-a)(b) .08 with Child Passenger
1192(2-a)(b) Intoxicated with Child Passenger
1192(2-a)(b) Combination Alcohol/Drugs with Child Passenger
1192(2-a)(b) Drugs with Child Passenger

 


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Provisions of Leandra's Law

Leandra's Law enhances the penalties for DWI with a child in the car and required ignition interlock devices for those convicted of DWI in the State of New York. The law includes the following provisions:  

  • It is a class E felony punishably by up to 4 years in New York State Prison for any first time offender who is DWI (with a .08 or higher Blood Alcohol Content (BAC) or impaired by drugs) to drive while a child fifteen years old or younger is in the vehicle.
  • To automatically have their license suspended pending prosecution for the offense of driving with a BAC of .08 or greater with a child under the age of 16 in the vehicle.
  • The Court is required to order all drivers convicted of a misdemeanor or felony DWI to install and maintain an ignition interlock on any vehicle owned and operated by such driver for at least 12 months, in addition to any term of imprisonment.
  • If the driver is DWI or impaired by drugs and causes serious physical injury to a child in the vehicle may be charged with the Class C felony, punishable by up to 15 years in prison.
  • If the driver is DWI or impaired by drugs and causes the death of a child 15 years old or younger may be charged with a Class B felony which is punishably by up to 25 years in prison.

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Impact of Prior DWI Convictions

Although all first offenses of DWI with a child passenger can be charged as a felony, a prior convicion or two or more prior convictions come with enhanced penalties. The standard jury instructions explained the enhanced penalties as follows: 

If the defendant has within the previous ten years twice been convicted of any of those crimes, a conviction of aggravated driving while intoxicated is a class D felony. Vehicle and Traffic Law § 1193(1)(c)(ii).

For the gradation of the offense for “special vehicles” see Vehicle and Traffic Law § 1193(1)(d). 

Thus, an additional element of this crime when charged as a Class D or E felony is that the defendant has previously been convicted of one or more specified crimes. 

That element must be charged in a special information, and after commencement of trial the defendant must be arraigned on that special information. If, upon such arraignment, the defendant admits the element the court must not make any reference to it in the definition of the offense or in listing the element s of the offense. 

But if the defendant denies the element or remains mute, the court must add the element to the definition of the offense and the list of element s. CPL § 200.60. See People v. Cooper, 78 N.Y.2d 476 (1991).

See Standard Jury Instructions (formatting added).


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Additional Resources

Alcohol, Drugs and DWI Page - Learn more about Leandra's Law from the NYS Governor's Traffic Safety Committee.

Wikipedia Page on Leandra's Law - Learn more about the history of Section 1192(2b) and its provisions.


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Finding an Attorney for a Violation of Section 1192(2b)

If you were accused of a violation of Aggravated DWI with a Child (also known as Section 1192(2b)), in the five boroughs throughout the greater New York City area, then contact Rochelle Berliner at 718-261-5600. The Law Office of Rochelle S. Berliner can help you mount an agressive defense to fight drunk driving charges.

These charges involving children and DWI are extremely serious felony charges even for a first offense. Hiring a Queens criminal defense lawyer as early in the case as possible can often lead to a better outcome. Call Law Office of Rochelle S. Berliner today at 718-261-5600 or submit an online form for a free consultation to discuss the specific facts of your case. 

Free Consultation

Submit your information using this form to schedule a free consultation with attorney Rochelle Berliner.

Name* Phone* Email* Subject* Message*

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