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People v. Prescott2/13/2001
nt state of the law appears to make such a crime unnecessary.
In sum, we conclude that, in light of the distinct nature of Article 31 of the Vehicle and Traffic Law, the statute's exclusive penalties, and the highly integrated statutory scheme, the Legislature did not contemplate the offense of attempted driving while intoxicated A determination otherwise would only lead to judicial and administrative confusion.
II.
For the same reasons, we hold that there can be no offense of attempted aggravated unlicensed operation of a motor vehicle in the first degree pursuant to Vehicle and Traffic Law §511(3). A person is guilty of aggravated unlicensed operation in the first degree under Vehicle and Traffic Law § 511(3) when a person operates a motor vehicle "knowing or having reason to know that such person's license or privilege of operating such motor vehicle in this state" has been "suspended, revoked or otherwise withdrawn;" the suspension is based on a §1192 violation or other qualifying reasons not relevant here; and such person is operating a motor vehicle in violation of §1192 of the Vehicle and Traffic Law (Vehicle and Traffic Law §§ 511 ; , , ; ).
The People contend that in this case the strict liability portion of the offense -- the operation of a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law §§ 1192(2) and (3) -- is nothing more than an aggravating circumstance and thus there can be attempt liability under the statute (see, People v Fullan, 92 NY2d 690, supra; People v Miller, 87 NY2d 211, supra). While that may well be true in theory, we conclude that, like drunk driving , the Legislature did not contemplate an attempted offense under Vehicle and Traffic Law §511.
Like Article 31, §511 is part of an integrated statutory scheme. It is found within Article 20 of the Vehicle and Traffic Law which governs suspension, revocation and reissuance of licenses and registrations. Section 511 classifies and provides specific penalties for each degree of the offense of operation of a motor vehicle while one's license is suspended or revoked (compare, Vehicle and Traffic Law § 511 [aggravated unlicensed operation of a motor vehicle in the third degree is a misdemeanor the sentence of which must be a fine of not less than $200 nor more than $500, or a term of imprisonment of not more than thirty days or both] with Vehicle and Traffic Law §511 [aggravated unlicensed operation of a motor vehicle in the first degree is a class E felony the sentence of which must be a fine not less than $500 nor more than $5000, a term of imprisonment as provided in the penal law, or where term of imprisonment is not required, sentence of probation, or a term of imprisonment as a condition of probation as provided in the penal law]). Section 511 limits guilty pleas and allows a court to require participation in an alcohol or drug treatment program as a condition of probation (Vehicle and Traffic Law §511 , ). Given the specific and well-defined nature of the offense and the penalties to be accorded, we conclude that this is another area in which the Legislature did not intend to expand attempt liability.
Finally, we note that, like Article 31, this section employs "operation" of a motor vehicle in the definition of the conduct proscribed. Thus, the statute prohibits drunk unlicensed operators who have lost their privilege to drive from engaging in conduct that comes dangerously close to driving.
Accordingly, the Appellate Division order should be reversed, and defendant's motion to dismiss counts four, five and six of the indictment should be granted.
Order reversed and defendant's motion
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