By Mathew B. Tully
A downstate district attorney office’s attempt to push the envelope on how severely drunk drivers can be punished for driving while intoxicated with a conditional license failed when New York’s highest court shot down the effort.
DWI offenders should be relieved that the New York State Court of Appeals recently dismissed the Westchester County District Attorney’s office attempt to prosecute Peter Rivera on a charge of aggravated unlicensed operation of a motor vehicle in the first degree. This charge stemmed from an early morning incident on Feb. 10, 2008, in which Rivera was arrested for DWI. He had three months earlier been arrested for DWI for the first time, and he was driving with a conditional license at the time of his second offense.
Although Rivera was indicted on several other offenses, the aggravated unlicensed operation charge was the central focus of this case. Rivera argued he could not be prosecuted for that charge because he had a valid driver’s license, albeit a conditional one. The prosecutor saw things differently: he argued Rivera had two licenses, namely a conditional license that was effective for certain periods, such as when he drove to work or to school, and a revoked license that was effective the rest of the time.
This dispute over the charge came because the maximum penalty for a violation of the terms of a conditional license, which is issued as part of a DWI rehabilitation program, is a fine up to $500, 15 days imprisonment and the conditional license’s revocation. An assistant district attorney argued this maximum penalty was too weak and a stronger one was needed to send a stern message to drunk drivers. Aggravated unlicensed operation of the first degree is a felony punishable by a fine up to $5,000 and up to four years in prison.
In the end, the court favored Rivera’s single conditional license argument over the DA’s two-license theory. Lower courts confronted with similar DWI cases have likewise subscribed to the one-license argument.
“We hold that a driver whose license has been revoked, but who has received a conditional license and failed to comply with its conditions, may be prosecuted only for the traffic infraction of driving for a use not authorized by his license, not for the crime of driving while his license is revoked,” Judge Robert S. Smith said in the majority opinion.
People arrested for DWI or aggravated unlicensed operation should contact a criminal defense attorney.