DWI with a conditional license not a violation of the conditional license

Violating terms of a conditional license is a traffic violation and not considered driving with a revoked license. In People v. Rivera (Ct. App. 5/3/2011) (Smith, J.) (5-2) the Court of Appeals affirmed the dismissal of the charge of Aggravated Unlicensed Operation of a Motor Vehicle 1º.  The Defendant, on November 14, 2007, was convicted of DWI and had his license revoked for a minimum of six months. As a first-time offender, the Defendant was able to get a conditional license that allowed him to drive to and from work, school, the rehabilitation program and from noon to 3 P.M on Saturdays. The Defendant was arrested for driving while intoxicated at 1:04 A.M. on February 20, 2008. He was charged with aggravated unlicensed operation of a motor vehicle in the first degree, under VTL § 511(3).

The Supreme Court granted the Defendant's motion to dismiss the charge prior to trial. The Appellate Division affirmed. The People appealed and the Court of Appeals affirmed 5-2.

The Court held that the Defendant had violated VTL § 1196(7)(f) by operating a motor vehicle in violation of his conditional license. The People had argued that the Defendant violated VTL § 511(3)(a)(i), a class E felony, by operating a motor vehicle knowingly with a revoked license, that the license was previously revoked for DWI, and committed the current crime while driving while intoxicated. The Court supported the Defendant's argument that he could not be charged with driving with a revoked license since he had a conditional license, holding that the argument was logical and supported by the legislative history of the statute.

The Legislature enacted VTL § 1196(7)(f) to address violations of use of a conditional license, increasing the maximum fine allowed from $100 to $500, keeping the maximum prison term limited to 15 days, and revocation of the conditional license. The Court held the amendment made such violations a more serious traffic infraction, and had it wanted to, the Legislature could have amended § 511 to specifically criminalize what the Defendant did. The majority stated that without a change to the rules, the maximum punishment for driving while violating terms of a conditional license is controlled by VTL § 1196(7)(f).

Judge Graffeo dissented, joined by Judge Pigott, arguing that the District Attorney should have the discretion to charge either VTL § 1196(7)(f) or § 511(3)(a)(i) and that the majority's holding punishes a person who drives drunk with the same penalty as someone who violates his conditional license with a minor infraction. The dissent pointed out that in order to have a conditional license, the Defendant must first have had his license revoked and that any operation of a motor vehicle outside of the terms of the conditional license, should be treated as operation with a revoked license. The dissent goes on to argue that because two different statutes cover the illegal conduct, either one can be used, at the People's discretion, and that the existence of the lesser crime, under VTL  § 1196(7)(f) does not preclude use of  § 511(3)(a)(i). Since the Legislature did not eliminate the higher, class E felony, statute, the People should be able to use it. The dissent argued that the holding allows the Defendant more lenient treatment because he had a conditional license, something they believe the Legislature had no intention of doing when they created the conditional license.  (JMM/LC)


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