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One too many DWIs may cost you more than your no-fault benefits or a short stint in prisonNovember 27, 2009

Should you violate any portion of the DWI statute (except VTL Section 1192.1) and get into an accident where there is evidence that the alcohol impariment was a proximate cause of the accident, then you may lose your no-fault benefits, provided the bills are timely denied.  11 NYCRR 65-1.1; 11 NYCRR 65-3.8.

Get caught 8 times while driving drunk, six of them being felonies under New York’s DWI recidivist statute (VTL Section 1193), and you have a lot more to worry about then losing your no-fault benefits or even doing a small jail or prison stint.

While People v Travis 2009 NY Slip Op 08851 (2d Dept. 2009)  is also a business record case, the following is what caused me to post this decision.

“We also reject the defendant’s contentions that he was denied equal protection regarding his sentence, and that the sentence was an abuse of discretion and constituted cruel and unusual punishment. A sentence imposed within the statutory limits ordinarily is not cruel and unusual punishment in the constitutional sense (see People v Jones, 39 NY2d 694, 697). In our view, the imposition of the enhanced sentence in the instant case corresponds to defendant’s long and unwavering criminal history. A sentence of 15 years to life for a persistent felony offender convicted of operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(3) [driving while intoxicated] and aggravated unlicensed operation of a vehicle in the first degree has previously been upheld (see People v Turner, 234 AD2d 704; People v Bowers, 201 AD2d 830). Here, the County Court noted the defendant’s extensive criminal background. In the 23 years prior to sentencing, the defendant had been arrested and convicted of eight previous charges of operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(3) [driving while intoxicated], six of which were felonies. Based upon the defendant’s continued drinking and his continued failure to refrain from mixing alcohol and the privilege of driving an automobile, we find no reason to disturb the County Court’s treatment of the defendant as a persistent felony offender. The sentence imposed was not excessive (see People v Adams, 55 AD3d 616; People v Suitte, 90 AD2d 80).”

There was a dissent as to the sentence:

“I highlight the facts that struck me as particularly significant and that distinguish this case from People v Bowers (201 AD2d 830) and People v Turner (234 AD2d 704), the Appellate Division, Third Department, cases on which my colleagues rely.

Unlike in Bowers, the defendant here, who has a record of alcohol-related offenses, has no history of violence and has never caused physical injury or property damage through these accidents. [*3]His most recent felony conviction for driving while intoxicated was 10 years ago, in 1999, for which he received an indeterminate sentence of 1½ to 4½ years of imprisonment. In Bowers, the Court affirmed the defendant’s sentence of 15 years to life based on the defendant’s 50-year criminal history, 13 previous alcohol-related driving offenses, at least one of which occurred after his arrest on the current charge, and the fact that the defendant was involved in an accident.

This case also may be distinguished from Turner, in which the defendant was observed driving erratically and repeatedly crossing the yellow lines on the roadway.

With respect to the underlying incident, the defendant was not observed driving recklessly, erratically, or otherwise. The defendant was observed while parking his vehicle, which he drove less than 100 feet. He was traveling at the posted speed limit of 30 miles per hour, and the arresting officer did not observe a moving violation. The defendant was approached by police officers on the basis that one of the headlights of his truck was not working. The arresting officer testified that the vehicle came to a stop in a normal fashion.

In my estimation, the facts of this case demonstrate that, while the defendant is certainly suffering from long-term alcoholism, he did not possess the requisite culpability to warrant a sentence of incarceration of 15 years to life. This Court should exercise its discretion by reducing the defendant’s sentence and imposing the maximum sentence for a class E felony (see Vehicle and Traffic Law § 1193[1][c]), an indeterminate sentence of 1 to 4 years of imprisonment (see Penal Law § 70.00[2][e]). On the basis of the sentence alone, I respectfully dissent in part.”

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