Pre-2006 out-of-state convictions ineligible for DWI elevation

VTL § 1192(8) does not allow
consideration of an out of state conviction, occurring prior to November, 1
2006, for purpose of elevating a charge of DWI from a
misdemeanor to a felony.

In People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.)
(7-0), the defendant was charged with Driving While Intoxicated as a
felony.  The People elevated the DWI
charge to a felony on the basis that the defendant had a 1999 conviction for
Driving with an Unlawful Alcohol Concentration from the state of Georgia, which
would have been a violation of VTL § 1192(2) had it
occurred in New York.  The defendant argued
that the date of the Georgia conviction rendered it ineligible to act as a
predicate for elevating the charge to DWI as a felony.  The trial court denied the motion, finding
that the legislative intent behind VTL § 1192(8) was to
treat prior out-of-state convictions as if they were prior convictions in New
York.  Subsequently, the defendant pleaded
guilty to DWI as a felony and then appealed. 
The Appellate Division reversed, determining that the language of the
2006 amendment to Vehicle and Traffic Law § 1192(8) and its enabling language
indicated that convictions occurring prior to November, 1 2006, could not be
used to raise a DWI offense from a misdemeanor to a felony.  Both parties appealed.

The statute, as amended, reads:

A prior out-of-state conviction for operating a motor
vehicle while under the influence of alcohol or drugs shall be deemed to be a
prior conviction of a violation of this section for purposes of determining
penalties imposed under this section . . . provided, however, that such
conduct, had it occurred in this state, would have constituted a misdemeanor or
felony violation of any of the provisions of this section.

VTL § 1192(8).  The enabling language accompanying the amendment specifies that "[t]he provisions of [VTL § 1192(8)], as it existed prior to the amendment made by … this act, shall apply only to convictions occurring on or after November 29, 1985 through and including October 31, 2006 and provided, further, that the provisions of [Vehicle and Traffic Law § 1192(8)] as amended by … this act shall apply only to convictions occurring on or after November 1, 2006." The amendment took effect on November 1, 2006.

The Court of Appeals unanimously affirmed the Appellate
Division’s interpretation of the statute. 
Looking to the plain language and history of these sections, the court concluded that the Legislature intended to include only out-of-state offenses after November 1, 2006, within the statute's reach.  (MM/LC)

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