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Aggravated Driving While Intoxicated With A Child


Vehicle & Traffic Law 1192(2-a)(b)

Under New York State law, no person shall operate a motor while such person has a blood alcohol content of .08 or greater as shown by chemical analysis of such person’s blood, breath, urine, or saliva and while a child who is fifteen years of age or less is a passenger in such motor vehicle. If the defendant has been convicted of a crime in violation of Vehicle and Traffic Law Section 1192(2), 1192(2-a), 1192(3), 1192(4), 1192(4-a) or in violation of Penal Law Section 120.03, 120.04, 125.13, or 125.14 within the previous ten years, a conviction of aggravated driving while intoxicated with a child is a class E felony. If the defendant has been convicted of a crime in violation of any of the previously listed crimes twice in the previous ten years, a conviction of aggravated driving while intoxicated with a child is a class D felony.

To find a defendant guilty of Aggravated Driving while Intoxicated with a Child, the prosecution must be able to prove beyond a reasonable doubt three elements: (1) that on the alleged date, the defendant operated a motor vehicle; (2) the defendant operated the motor vehicle while his or her blood alcohol content was .08 as shown by a chemical analysis of such person’s blood, breath, urine, or saliva; and (3) that the defendant did so while a child who was fifteen years of age or less was a passenger in that motor vehicle.

Under New York State law, no person shall operate a motor vehicle while in an intoxicated condition while a child who is fifteen years of age or less is a passenger in such motor vehicle. A person is in an intoxicated condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess as a reasonable and prudent driver. If the defendant is convicted of aggravated driving while intoxicated with a child it will result in a class E felony.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

To find a defendant guilty of Aggravated Driving while Intoxicated with a Child, the prosecution must be able to prove beyond a reasonable doubt three elements: (1) that on the alleged date, the defendant operated a motor vehicle; (2) the defendant operated the motor vehicle while in an intoxicated condition; and (3) that the defendant did so while a child who was fifteen years of age or less was a passenger in that motor vehicle.

Under New York State law, no person shall operate a motor vehicle while the person’s ability to operate a motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs while a child who is fifteen years of age or less is a passenger in such motor vehicle. A person’s ability to operate a motor vehicle is impaired by the combined influence of drugs or of alcohol and a drug or drugs when a combination of drugs or alcohol and a drug or drugs has actually impaired, to any extent, the physical and mental abilities which her or she is expected to possess as a reasonable and prudent driver. If the defendant is convicted of aggravated driving while intoxicated with a child it will result in a class E felony.

To find a defendant guilty of Aggravated Driving while Intoxicated with a Child, the prosecution must be able to prove beyond a reasonable doubt three elements: (1) that on the alleged date, the defendant operated a motor vehicle; (2) the defendant operated the motor vehicle while his or her ability to operate a motor vehicle was impaired by the combined influence of drugs or of alcohol and any drug or drugs; and (3) that the defendant did so while a child who was fifteen years of age or less was a passenger in that motor vehicle.

A motor vehicle as defined by this statute means every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power. A person operates a motor vehicle by driving it or when he or she is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion. A person may be considered to be operating a vehicle even if the vehicle is not moving but the engine is running.

The device used to measure blood alcohol content as well as the following must be considered when determining the accuracy of the results of a chemical test: (1) the qualifications and reliability of the person who gave the test; (2) the lapse of time between the operation of the motor vehicle and the giving of the test; (3) whether the device used was in good working order at the time the test was administered; and (4) whether the test was given properly. Evidence that the test was administered by a professional possessing a valid New York State Department of Health permit allows for the presumption that the test was done properly.

Determining whether a person is intoxicated is not dependent upon any particular chemical or physical test. Instead, to determine whether the defendant’s ability to operate a motor vehicle was impaired, all surrounding facts and circumstances must be considered. This includes the following: (1) the defendant’s physical condition and appearance, balance and coordination, and manner of speech; (2) the presence or absence of an odor of alcohol or drug; (3) the manner in which the defendant operated the motor vehicle; (4) testimony regarding the defendant’s sobriety; (5) circumstances of an accident; and (6) the results of any test of blood-alcohol content or drug content in the defendant’s blood.

For more information on Aggravated Driving While Intoxicated With A Child, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (212) 500-3273 today.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

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