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Aggravated DWI (With a Child)

A DWI conviction can have disastrous repercussions in your life and even to the lives of your loved ones. However, an aggravated DWI is punished much more harshly than any other type of driving while intoxicated offenses. Leandra's Law, also known as Aggravated DWI with a child, established VTL §1192(2-a)(b), 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. 

Leandra’s Law strengthened DWI penalties by requiring that a person sentenced under VTL §1192(2-a)(b) 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. A violation of this law is a felony, even if it is a first offense. Due to the severity of the penalties, it is highly recommended to retain an experienced attorney if you are facing charges. Whether you are a parent, work with children, or a foreign national a conviction can hinder your custody rights, employment opportunities, and/or your legal status.

New York Defense Lawyer for Lendra's Law DWI Offenses

If you are charged with a violation of VTL §1192(2-a)(b) in New York City or any of the five boroughs, then it is in your best interest to seek legal expertise. An experienced DWI defense lawyer can help identify any issues with your case and develop a defense strategy based on the facts of your case. At Law Office of Rochelle S. Berliner, we are here to assist you.

Ms. Berliner is an experienced DWI lawyer, she has represented men and women with this serious felony offense for driving DWI with a minor child who was 15 years or younger in the vehicle. Every case is unique, and Rochelle S. Berliner devotes her time and resources to analyzing the specific details surrounding your charges.

Call Law Office of Rochelle S. Berliner at 718-261-5600 to schedule a consultation.


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 separate 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 conviction 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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What are some collateral consequences and issues if charged?

Leandra’s Law requires that a law enforcement officer reports any qualifying DWI charge. Therefore, if you are a parent driving under the influence with your child present in the car, the police and prosecutor are mandated to report your arrest and conduct to New York’s Statewide Central Register of Child Abuse and Maltreatment.

A conviction for a violation of VTL §1192(2-a)(b) has serious life-changing repercussions for anyone. For instance, if you are a teacher, daycare or medical professional you may have to report your arrest and conviction to the licensing or certifying agency. Additionally, if the defendant is charged with other related offenses and/or violations he/she may face harsher penalties. In some cases, the defendant may have their driver’s license revoked. Once a person’s driver’s license is revoked, he and/or she losses the privilege to drive as a resident of New York State for their lifetime. However, some revocations have a specified period, and once it is over the individual must request approval from the DMV before applying for a new license.

Other collateral consequences include educational, housing, and employment barriers that arise from being convicted as a felon. An individual may have difficulty finding employment because of their criminal record. Also, if you are currently in any family legal dispute such as divorce proceedings, the court may award custody to the other parent.


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Additional Resources

Governor's Traffic Safety Committee (DWI) – Follow the link to learn more about Leandra's Law from the NYS Governor's Traffic Safety Committee. The website provides information on child passenger safety training and events, resources to educate young drivers, programs and resources for individuals who have been in a crash, fatality, or sustained any injuries from a DWI or DWAI.

New York Courts | Child Passenger Protection Act – Visit the link to the NY Courts site to read in detail Leandra’s Law and the changes that were made to the Vehicle and Traffic Laws (VTL). The website also provides information for virtual court appearances, court visitors that have tested positive for COVID-19, and much more.

STOP-DWI New York Program – The Special Traffic Options Program for Driving While Impaired (STOP-DWI) was created by the state legislature in 1981. The program is meant to reduce alcohol and drug related traffic accidents, promote DWI prevention, and collaborates with other local law enforcement agencies to help educate others. Additionally, the program focuses on community and saving lives by coordinating their local efforts with Rehabilitation centers, Probation, etc. Visit the link to view upcoming events, safety training, resources, and more.


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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 aggressive 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. 

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Rochelle Berliner
Rochelle Berliner

Rochelle Berliner grew up in Queens, NY. She started New York Law School in January 1989 and graduated in June 1991. Immediately after law school, she started working at the New York County District Attorney’s Office, where she stayed for approximately 14 years...

  • National Police Accountability Project
  • National Association of Criminal Defense Lawyers
  • National Organization for the Reform of Marijuana Laws
  • New York State Association of Criminal Defense Lawyers
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