People v. Prescott2/13/2001
1193 [revocation for period of six months for first time offender of §1192(2),(3) or (4)] with Vehicle and Traffic Law § 1193 [4-a] [revocation for a period of one year for school bus driver who has violated any subdivision of §1192 and has at least one bus passenger]).
The Legislature placed great significance on the enforcement of specific statutory penalties for drunk driving . The statute provides that sentences for special vehicle offenses must be imposed despite contrary provisions in the Penal Law (see, Vehicle and Traffic Law §1193 ). Moreover, a sentencing court is prohibited from imposing an unconditional discharge for a §1192 violation, and conditional discharges or probation sentences must be accompanied by a fine (see, Vehicle and Traffic Law §1193 ) When a person is convicted of a felony under the Vehicle and Traffic Law where a minimum fine has been established, the sentencing court is authorized to impose the minimum notwithstanding the fines schedule established for Penal Law felonies (see, Penal Law §§ 80.00 ; 80.05 ; see also, Penal Law §80.15). Thus, the Legislature has made it clear that the courts must look to §1193 for the appropriate penalties and sentencing options for drunk driving offenses.
By charging defendant with attempted drunk driving , the People are asking the courts to create an offense not contemplated by the detailed statutory scheme . Indeed, it is difficult, if not impossible, to ascertain what punishment could be imposed for the crime of attempted driving while intoxicated. The Vehicle and Traffic Law certainly does not provide for it. Under Penal Law §110.05, an attempt to commit a crime is generally classified one grade below the completed crime (see, Penal Law §110.05). While, under §110.05, attempted drunk driving could theoretically be punished under Article 70 of the Penal Law, this would not comport with the intent of Article 31 of the Vehicle and Traffic Law which, as noted, has its own mandatory set of criminal and administrative penalties for drunk driving offenses (compare, Vehicle and Traffic Law § 1193 with Penal Law §§ 70.15; 80.05; see also, Penal Law § 55.10 ). Surely, if the Legislature had contemplated a separate crime of attempted drunk driving, it would have provided penalties for these offenses as well.
Although the statute itself does not recognize attempt liability, the breadth of conduct prohibited by Vehicle and Traffic Law §1192, as interpreted by our courts, is sweeping. Our courts have long recognized that the definition of operation is broader than that of driving and that "' person operates a motor vehicle within the meaning of [the statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle"' (People v Alamo, 34 NY2d 453, 459 [quoting Matter of Prudhomme v Hults, 27 AD2d 234, 237] ; see also, People v O'Connor, 159 Misc 2d 1072, 1074-1075) Thus, criminal liability under §1192 can attach to conduct "dangerously close" to driving, as long as that conduct occurs upon locations covered by the statute (see, e.g., People v Mahboubian, 74 NY2d 174, 190; see also, Vehicle and Traffic Law §1192 ).
Notably, in all its Vehicle and Traffic Law amendments, the Legislature has made no effort to narrow the definition of "operate" (see, Sheehy v Big Flats Community Day, 73 NY2d 629, 635 [Legislature must be presumed to have been aware of long standing judicial construction]). Given the broad, all-or- nothing definition of operation, it is understandable that the Legislature has not seen the need to expand penal sanctions to include attempted drunk driving. Indeed, the curre
Page 1 2 3 4 5 New York DUI Attorneys
DUI Lawyers
|