Defending Multiple DWI Convictions
A second DWI charge within 10 years could be prosecuted as a felony. This felony prosecution is discretionary unlike a predicate felony — second felony offender, that the prosecution must pursue.
Both predicate felony offender status and felony DWI invlove a conviction within 10 years.
Predicate Felony
In calculating the time for a predicate felony, the law states that “sentencemust have been imposed more than 10 years before the commission of the felony” PL 70.06(1)(b)(iv).
Felony DWI Law
The felony DWI statute refers to committing the new offense “after having been convicted of” the predicate crime. VTL 1193(1)(c)(i).
This is an important distinction. It is very important in either a DWI felony sitiuation or a Felony under the Penal Law to know this difference.
A “conviction” is defined in the Criminal Procedure Law (CPL) as “the entry of a plea of guilty to, or a verdict of guilty upon an accusatory instrument” CPL 1.20(13). A judgment is the conviction AND the sentence imposed. Sometimes in criminal court the conviction will be months before the sentence. Usually this occurs when the Court orders a pre-sentence report from the Department of Probation.
Felony DWI Example
Where a motorist was sentencedon the prior DWI and occurred within the 10 year limit, but the motorist plead guilty or was convicted at trial more than10 years ago, felony DWI status should not apply. Therefore, where sentencing is adjourned this time delay should not be used at a later point to increase a seconf felony DWI to a felony.
Misdemeanor DWI
In any DWI offense this rule will apply. For example, two prior DWAIs within 10 years raises the current DWAI to a Misdemeanor from a violation.
Defense of a Felony DWI
In order to present the best criminal defense a criminal defense attorney in Westchester, Orange, Rockland, Putnam counties or elsewhere need to be aware of the date of arrest, conviction and sentence in order to properly defend a DWI felony charge.
