BILL NUMBER:S4177              REVISED 05/16/11

TITLE OF BILL:
An act
to amend the vehicle and traffic law, in relation to the offense of
aggravated unlicensed operation of a motor vehicle in the first degree

PURPOSE:
To include operating a motor vehicle with a conditional
license while intoxicated under the crime of aggravated unlicensed
operation of a motor vehicle, a class E felony.

SUMMARY OF PROVISIONS:
Section 1. Amends subparagraph (iii) of
paragraph (a) of subdivision 3 of section 511 of the vehicle and
traffic law by adding new subparagraph (iv)

Section 2. Effective date

JUSTIFICATION:
The Legislature enacted VTL § 1196(7) to set forth the
conditions under which a driver with a conditional license (issued
after a DUI offense) can operate a vehicle. Any operation outside
those conditions ennumerated in § 1196(7) is an infraction; a
prohibition against driving while intoxicated or impaired is not an
ennumerated condition. Section 511 of the VTL provides for penalties
              

for persons driving with a suspended or revoked licenses; driving
under the influence with a suspended of revoked license is class E
felony. The Court of Appeals, in People v. Rivera (2010), found that
though the privileges of a person with a conditional license remain
suspended, that person is not driving with a suspended license for
purposes of §511.
The Court found instead that in adopting § 1196(7) the Legislature
intended to set forth all conditions for driving with a conditional
license. Therefore, a person who is granted the privilege of a
conditional license faces a far lighter penalty for continuing to
drive under the influence than does a person with a suspended license.

The sample set of facts below illustrates this disparity in charging:

Sample Facts:
Two drivers are arrested for driving with a blood
alcohol concentration of .12. Both are convicted of DWI and their
licenses are revoked. Driver A receives the benefit of a conditional
license. Driver B does not. One month later both drivers are stopped
for Driving While Ability Impaired by Alcohol (DWAI) and both
register a BAC of .07. If a conditional license terminates the
revocation, the following disparity in charging occurs:

Driver A (Conditional)          Driver B (No Conditional)

If DWAI (Traffic Infraction)    If DWAI (Traffic Infraction)

Then Operating Outside the      Then VTL §511(3)(a) (E FELONY)
Conditional


VTL § 1196(7)(f) (Traffic Infraction)

LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.