Guides on DUI

What is the NDR? The NDR is part federal legislation and part federal regulation. Contained in 23 C.F.R. Part 1325 and 1327, the NDR as we know it includes a Problem Driver Pointer System (PDPS), a national driver computer database, and rules for states to follow. All 50 states adhere to the NDR. Under the NDR, states are required to report various driving convictions and accompanying actions (such as suspensions) to the NDR database, and home states are required to check the NDR database prior to renewing licenses, issuing new licenses, or issuing duplicate licenses. Drivers convicted of DUI, or other traffic violations, are most concerned with 23 C.F.R. Section 1327.5(b)(1), which requires a home state to check the NDR database for each driver before issuing a license, renewing a license, or issuing a duplicate license. Why PennDOT is wrong about the NDR As of the writing of this article, when a Pennsylvania driver goes to renew his or her license, and has a pending DUI suspension in another state, PennDOT instructs the driver that they cannot renew their license (or get a duplicate license) because the NDR prevents it. This is false. The NDR does not prohibit home states from issuing licenses, duplicate licenses, or renewals for drivers who are suspended by another state. 23 C.F.R. section 1327.5(b)(1) only requires home states to check the NDR database before issuing a license, renewing a license, or issuing a duplicate license. Section 1327.5(b)(1) states: [T]he chief driver licensing official of a participating state shall submit an inquiry to both the NDR and the Commercial Driver's Licensing Information System for each driver license applicant before issuing a license to that applicant. The issuance of a license includes but is not limited to any original, renewal, temporary, or duplicate license that results in a grant or extension of driving privileges in a participating State." Nothing in the NDR prohibits, stops, or prevents the home state (such as Pennsylvania) from issuing a license. The NDR only requires the home state to check the NDR first. DUI, NDR, and PennDOT The NDR doesn't prevent PennDOT from renewing a license for a driver who is DUI suspended in another state, but Pennsylvania law does. 75 Pa.C.S. Section 1503(a)(1) states that PennDOT shall not renew the driver's license of any person "whose operating privilege is suspended or revoked in another state." This is a legal Catch 22 for Pennsylvania drivers, who may not be suspended under Pennsylvania law due to an out of state DUI conviction, but cannot renew their license under Section 1503. Drivers caught in this predicament must consult with legal counsel. There is an old legal principle: "The law abhors an absurd result." This is an absurd result. NDR, PennDOT, Duplicate Licenses Neither the NDR, nor Pennsylvania law, prevents PennDOT from issuing a duplicate license to a PA driver who is suspended in another state. In fact, 75 Pa.C.S. Section 1513 requires PennDOT to issue a duplicate license to drivers- regardless of any other condition such as a suspension in another state. Out of state drivers, points, Pennsylvania, NDR If you are an out of state driver facing a Pennsylvania traffic ticket, be sure to contact a Pennsylvania lawyer versed in the NDR. You should take precautions to mitigate any Pennsylvania traffic ticket that could be reported to the NDR (or companion program AAMVAnet) and result in license repercussions in your home state. Practical information for PA Drivers on NDR Before pleading guilty or accepting a deferred adjudication program for DUI or a traffic offense in another state, Pennsylvania drivers should check to see when their PA license will expire. Work with your attorney to plan court dates or effective dates of suspension that will enable you to renew your PA license or obtain a duplicate license. Disclaimer Nothing in this guide should be construed as legal advice- regardless of the website tab above. Every case has unique facts that must be discussed in consultation with an attorney in order to obtain proper legal representation.

1. Reduced DL suspension for DWI with law Expanding Use of Ignition Interlock Devices P.L.2019, c.24 On 8/23/2019 new laws signed expanding the use of ignition interlock device for those convicted of drunk driving offenses and of refusing breath tests. The legislation (S824) also reduces the length of license suspension and forfeitures for these offenses. This law requires that first time offenders install ignition interlock devices (IID), at a cost to the offender. IIDs and suspensions from then on are based upon the severity of the offense. . Police false promise of no jail and leniency required suppression of confession State v. L.H. . Police false promise of no jail and leniency required suppression of confession State v. L.H. The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court. (A-59-17)

A helpful guide on choosing the right attorney to defend you against a DUI / DWI charge.

Start Early Registering with the Board as a 1L saves money. A discounted registration fee is very appealing when you consider how much you’re borrowing to pay for school. Every dollar helps, and if you wait until your 3L year, you’re paying ten times more. A chart on the FAQs page of the Board’s website shows how quickly the window closes on the opportunity for the discounted fee (hint: it’s well before the end of your first year). Early registration also starts the ball rolling on your background character & fitness investigation, giving those who take the time a better shot at getting cleared before graduation. Once you’re cleared, internships, externships and clinic opportunities open that remain unavailable to those who've waited. Early registrants have a leg-up after converting to a regular application at the start of 3L year because their preliminary background investigation is out of the way. The Board can wrap up its final investigation stages much sooner and you have only two things left to focus on after graduation: passing the Bar exam and finding a job. Putting off filing your Bar application until your 3rd year, or worse, filing it after you graduate rockets stress levels off the charts. You’re now studying for the Bar exam AND dealing with even greater unemployment risks because you’re competing with those who’ve been cleared and sworn in. Most employers are looking for attorneys who can walk right into a courtroom on day one, and here’s where postponing the application process probably hurts most. Treat registering with the Board as an assignment that’s due before the end of the first semester. In hindsight, you'll be really happy you did. Take Your Time We’re used to Amazon Prime-style gratification that doesn’t take much thought or effort. That’s not where you want your mind to be when completing your student registration or converting it to a regular application. Students spend thousands of dollars in Bar prep courses. They take months to prepare for the Bar exam. Completing the Bar application should be approached with no less diligence and care. Don’t Guess Too many applicants have told me that they dove into answering application questions unprepared, estimating and glossing over details just to meet a filing deadline. Filing your Bar application isn’t a race and guessing invites grief. You probably already know that lack of candor, even if it's unintentional, is the primary reason for admission denial. At the Bar registration/application phase, the candor ball is still in your court before you file. You have total control over the quality of your responses, and the Board expects nothing less than the truthfulness that results from due diligence. You need to carve out the time it takes to gather any documents that will help with drafting the most balanced, complete and honest answers. For example, if you’ve missed paying a few bills on time, pull a credit report on yourself. Read it very carefully. You may be surprised to find delinquencies, collections, or other problems that you had no idea existed. Knowing about those problems enables you to accurately report them on your Bar application. Investigating your background also gives you an opportunity to resolve any problems you discover before the Board discovers them for you. A response on your application that includes not only a thorough explanation of a problem but also describes its resolution is priceless. The Board pulls your credit report and compares it with your application responses. If you didn’t take the time to investigate and there's a problem...you've heard of what can happen. The Board accepts no excuses because their website contains a link to very detailed checklists specifically designed as references for completing your registrant Bar application. Following the checklist alone should help an applicant avoid most of the problems encountered when relying on a less-than-perfect memory.

1. Reduced DL suspension for DWI with New Expanding Use of Ignition Interlock Devices. 1. Reduced DL suspension for DWI with New Expanding Use of Ignition Interlock Devices. On 8/23/2019 new laws signed expanding the use of ignition interlock device for those convicted of drunk driving offenses and of refusing breath tests. The legislation (S824) also reduces the length of license suspension and forfeitures for these offenses. This is the most significant change to DWI law in 40 years. This law requires that first time offenders install ignition interlock devices (IID), at a cost to the offender. IIDs and suspensions from then on are based upon the severity of the offense. First-time offenders with BAC of: 0.08 to 0.10 - must install ignition interlock at own cost, use for six months. License suspension of 30 days. 0.10 to 0.15 - must install ignition interlock at own cost, use for six months to a year. License suspension of 45 days. Higher than 0.15 - must install ignition interlock at own cost, use for one year to 18 months. License suspension of 90 days. Mandatory interlock for refusal School zone DWI eliminated Drunk Driving - New Law effective December 2019 For a first offense of drunk driving, the offender's driver's license is to be forfeited until an IID is installed in one motor vehicle owned, leased, or principally operated by the offender, whichever the person most often operates. If the offender's blood alcohol concentration (BAC) was 0.08% or higher, but less than 0.10%, or the offender was convicted of operating a motor vehicle while under the influence of intoxicating liquor without a BAC reading, the current three-month license forfeiture is replaced with mandatory IID installation for three months; If the offender's BAC was 0.10% or higher, but less than 0.15%, the current license forfeiture of seven months to one year is replaced with the requirement that an IID is to be installed for seven months to one year; If the offender's BAC was 0.15% or more, the current license forfeiture of seven months to one year is replaced by four to six months license forfeiture and an IID is to be installed during the period of license forfeiture, as well as for not less than nine months or more than 15 months after the period of license forfeiture. For second drunk driving offenses, the current driver's license forfeiture is two years and for third and subsequent offenses, the forfeiture is for 10 years; the IID requirement is for one to three years. Under the new law, license forfeiture is reduced to one to two years for second time offenders and to eight years for third and subsequent offenders; the requirement that IID be installed in one motor vehicle owned, leased, or principally operated by the offender, whichever the person most often operates, is increased to two to four years. The license forfeiture period for first-time offenders of driving under the influence of drugs is not changed by the substitute. Further, installation of an IID is not required for first offenses of drugged driving. The provision establishing enhanced penalties for a conviction of driving while intoxicated in a school zone is removed. Refusing a Breath Test For a first offense, the committee substitute requires the offender's license to be forfeited until the person installs an IID in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, rather than requiring the current seven months to one year. The IID is to remain installed during the license forfeiture and for the following nine to 15 months. For a second offense, the bill decreases the period of license forfeiture from the current two years to one to two years. The offender's license is to be forfeited until an IID is installed and is to remain installed for two to four years. For a third or subsequent offense, the committee substitute decreases the license forfeiture from the current 10 years to eight years. An IID would be required during the license forfeiture and remain installed for two to four years. The provision establishing enhanced penalties for a conviction of refusing to submit to a breathalyzer occurring in a school zone is removed. The new DWI, refusal and interlock laws will be addressed at the NJ Bar seminar Handling Drug, DWI and Serious Cases in Municipal Court Seminar October 7, 2019 5:30PM-9:05PM NJ Law Center, New Brunswick, NJ Reserve now before sold out. Seminar ISBN :ON150718 https://tcms.njsba.com/PersonifyEbusiness/Default.aspx?TabID=1607&productid=37948443 2. Recent Cases: Police False Promise of no Jail and Leniency Required Suppression of Confession State v. L.H. The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant's statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court. (A-59-17)

1. Weapons Search not Permitted here after DV TRO State v. Hemenway. NJ LAWS EMAIL NEWSLETTER E569 Kenneth Vercammen, Attorney at Law October 2, 2019 E569 In this issue: 1. Weapons Search not Permitted here after DV TRO State v. Hemenway. 2. For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented State v. Patel. 3. Next Event. 4. Free Community Events. 5. Fun Upcoming Running Races & Charity Events Participated by Kenneth Vercammen- Ken V is running 60 races in 2019. 6. Professional Space For Rent, 2045 Woodbridge Avenue. Recent cases: E569 Recent cases 1. Weapons search not permitted here after DV TRO State v. Hemenway. The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion. (A-19-18) 2. For DWI PCR on prior uncounseled DWI proceeding 2. For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. State v. Patel. To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel. Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: "(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time." Here, Patel's unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion. (A-13-18) 3. Next event: Webinar: Estate Planning for the "Difficult" Adult Child - How to Plan in Cases of Addicted, Perpetually Out of Work and Unhappily Married Children. Location: Online or NJ Law Center One Constitution Square New Brunswick, NJ 08901 [next to Rutgers Cook campus] Date: October 10, 2019 Time: 12:00 PM - 1:40 PM ET https://tcms.njsba.com/personifyebusiness/njicle/CLEPrograms/NJICLEEventsCalendar/MeetingDetails.aspx?productId=49471222 4. Next Community Events. 10/5/19 Metuchen Fair [not a race] 10am-4pm, then North Brunswick Heritage day with band Parkway Soul Productions https://www.facebook.com/events/619072458618435/ WILLS & ESTATE ADMINISTRATION seminar October 8 Edison Main Library Tuesday 7pm Edison Library 340 Plainfield Ave. Edison, NJ 08817 October 21 at 6:00 PM Monday WILLS & ESTATE ADMINISTRATION seminar Clara Barton Branch Edison Library 141 Hoover Avenue Edison, NJ 08837 Edison Elks Community Breakfast 10/13/19, and 11/10/19 - Breakfast 8:30-11AM All you can eat breakfast buffet $8 adults, $4 kids (6-12) children under 5 will be our guests. Edison Elks #2487 - Edison, NJ375 Old Post Road, Edison, New Jersey 08817 (732) 985-2487 Oct 31 Spooky Thursday on 7-9:30 Edison Elks November 16th, Miracle Madness Kickoff Party. Save the date! Edison Elks November 21st Thirsty Thursday Edison Elks 5. Fun Upcoming Running Races & Charity events participated by Kenneth Vercammen- Ken V

Introduction Criminal lawyers like the one Matthew McConaughey played in the Lincoln Lawyer represent people accused of all types of crimes. Defense attorneys work very hard to protect your Constitutional Due Process rights i.e., your right against self-incrimination, your right to counsel, and your right to a trial. Criminal lawyers also protect you during the “investigative” phase of your case. If you’re in need of a criminal because you have been arrested or are under investigation, this page will answer many of your questions. Why You Need A Criminal Lawyer Criminal defense attorneys have two objectives. First, they protect you from going to jail. And second, they prevent you from getting a criminal record. If you’re under investigation, a criminal defense attorney will protect you against self-incrimination. If the police arrest you, your defense attorney will fight to protect your innocence. Criminal charges in New Jersey are complex and have serious consequences. Your defense attorney will guide & protect you throughout this lengthy and intimidating process. When Should You Hire A Criminal Lawyer? Ideally, you should hire a criminal defense attorney in 3 situations. 1) If you believe you have committed a crime but are uncertain. For example, you used your employer’s credit card without permission. (Theft) 2) If you are under investigation.NJ Criminal lawyer For example, a detective calls you and either asks you questions or invites to the police station. 3) Following an arrest. No example is necessary. Criminal Lawyers Protect You While Under Investigation If the government suspects you of a crime, it is necessary to hire a criminal defense attorney. Your criminal defense attorney will protect your Constitutional rights. Your attorney will act as a shield between you & the government. Criminal cases are often won or lost during the government’s “investigation phase”. Do not wait until the government brings criminal charges against you. Hire a criminal defense attorney to protect you before it’s too late. Criminal Lawyers Protect You When You've Been Arrested Your defense attorney will review the criminal charges and will explain the fines & penalties you are facing. Next, you will have an opportunity to explain your side of the story. Once your criminal defense attorney receives the government’s evidence against you, he will identify the key issues in your case. Lastly, your defense attorney will support you in your decision to accept a Plea Bargain or go to trial. How To Choose A Criminal Lawyer Near You Since your future is at stake, the criminal defense attorney you choose should be the right one. It is important to hire a criminal defense attorney who fits your needs. Remember, when you hire a defense attorney, you are entering into a relationship. And like any other relationship, you need to trust the person who represents you. You must feel comfortable with the defense attorney with whom you will be working. Read the next section for important tips on choosing your lawyer. Tips On Finding The Right Attorney For You First impressions are everything. So, during your first meeting, keep these questions in mind: “Does this lawyer strike me as honest or is there a weird vibe?” For example, is the attorney listening to you and answering your questions? Or, do you feel ignored and judged? If there’s bad energy or you don’t feel at ease, consider this a red flag. If something is off or just “not right” keep searching. Remember: Like us, there are plenty of caring defense attorneys who offer Free Consultations. Do Your Research, Again If you have a criminal matter, you need a criminal defense attorney. As discussed, there are many things to understand about the role of a defense attorney. It is important to find a lawyer who is right for you. Since it’s such an important decision, take the time to do some basic research. Once you’ve found a few lawyers you’d like to meet, check to see if they have any client reviews. At our firm, before a client hires us, we always encourage them to visit this our Client Reviews. Take advantage of free consultations and see how that lawyer makes you feel. When you trust your gut, you never go wrong. Choosing the criminal defense attorney that is right for you is an important decision. So take your time and choose wisely. Final Thoughts If you're facing a felony conviction, your life can get real complicated, real fast. Instead of rushing out and hiring the first attorney you meet, or the lowest priced attorney, find the lawyer that's right for you. This decision is an important one. It should be approached carefully and intelligently.

What to do when pulled over? Traffic stops by the police can be stressful and frightening. Sometimes at traffic stops, people are not treated fairly or even legally by the police. At a traffic stop, you have the right to remain silent, and you have the right to have an attorney present during any interrogation. When an officer signals for you to stop, safely pull over to the right side of the road entirely away from any traffic. If you drive in California, know your rights, so that you can use them when you need to. Know your rights: Keep your hands in plain view on top of the steering wheel. Wait until you are asked to produce your license, registration, and proof of insurance. As soon as it seems appropriate, politely and calmly ask the officer if you are free to go. If you are not free to go, politely ask, “For what reason are you detaining me?” Exercise your right to remain silent and politely say, “I choose to exercise my right to remain silent.” You cannot be arrested or detained for exercising your right to remain silent. Do not consent to a search. The police may conduct a search anyway, but it is important to state clearly, “I do not consent to a search.” If you are receiving a ticket, cooperate. Give the officer your name and date of birth, and sign the ticket. Your failure to cooperate regarding a ticket could get you arrested. Do not express disrespect or attitude. Do not try to run. Do not physically resist a “pat-down” or body search. Simply say “I do not consent to a search,” but otherwise be cooperative. Do not tell lies to the police. Instead, simply and politely exercise your right to remain silent. Be aware that police officers may legally lie to and to attempt to intimidate you. If you are arrested, ask the officer if you can park your car safely or have a friend drive it away, otherwise, you will pay impound and towing fees. Should I agree to be tested for DUI? Yes. If the police want to test you for driving under the influence (DUI), submit to the test. California law does not require you to submit to a DUI test until you are formally taken into custody (unless you are under 21 or currently on probation for DUI), but in practice, refusal to submit to DUI testing will give a police officer a reason to arrest you. Submit to the test, and your attorney can dispute the results later. In California, the refusal to submit to a DUI test after a formal arrest will lead to a one-year driver’s license suspension.

Driving with a Suspended Driver’s License or Registration in Connecticut For a first-time offense of driving while your license or registration is refused, suspended, or revoked, Connecticut law provides for a criminal penalty of $150 to $200, up to ninety days of imprisonment, or both pursuant to Conn. Gen. Stat. §14-215. For a subsequent offense, as in one occurring within three years of the arrest that led to the prior driving with a suspended license or registration conviction, Connecticut law provides for a fine of $200 to $600, up to one year imprisonment, or both. However, the criminal penalties are more severe if the underlying reason your license was suspended was for a conviction for one of the following alcohol related offenses: (1) driving under the influence of alcohol or drugs; (2) per se drunk driving with a blood alcohol content of .08% or more; (3) manslaughter in the second degree with a motor vehicle; or (4) assault in the second degree with a motor vehicle. Therefore, according to Conn. Gen. Stat. §14-215, if you are found to be driving while your license was suspended for one or more of the alcohol related offenses described above, the penalties are a fine of $500 to $1,000 and up to one year of imprisonment, thirty consecutive days of which may not be suspended or reduced should the court determine that there are no mitigating circumstances to rule otherwise. Of note, the court shall specifically state in writing for the record the mitigating circumstances, or the absence thereof. Also, a police officer must impound a vehicle for 48 hours when the driver is arrested for operating a vehicle under the influence when his or her license is under suspension or revocation. The owner may reclaim the vehicle after paying all towing and storage costs. Additionally, according to Conn. Gen. Stat. §14-111(b), Connecticut law requires the Department of Motor Vehicles to suspend your license, without a hearing, for at least one year for a first conviction for driving while your license has been refused, suspended or revoked. For any subsequent violation, the mandatory period of suspension is at least five years. Driving while under a Suspended License in New York Driving with a suspended license in New York is considered aggravated unlicensed operation of a motor vehicle and can be classified in the third, second, or first degree, depending on the circumstances. Frequently, licenses are suspended for failing to answer a court appearance ticket or failing to timely pay the fine associated with a ticket. Additionally, license suspensions can also be mandated pursuant to violations of certain laws. Licenses can be suspended by municipal magistrates and judges, supreme court justices, county judges, district court judges, the superintendent of state police, and the commissioner of motor vehicles. Third Degree Aggravated Unlicensed Operation of a Motor Vehicle in New York Pursuant to Vehicle and Traffic Law § 511, third degree aggravated unlicensed operation of a motor vehicle is a misdemeanor. This charge occurs when someone operates a motor vehicle when he or she knows or has reason to know that his or her license or privilege of operating such motor vehicle is suspended, revoked, or otherwise withdrawn by the commissioner. When a person is convicted of such offense, the sentence of the court must be a fine of $200 to $500, up to thirty days imprisonment, or both. If the unlicensed driver is operating a vehicle with a registered gross weight of more than 18,000 pounds, the fine then becomes $500 to $1,500. Second Degree Unlicensed Operation of a Motor Vehicle in New York Second degree unlicensed operation of a motor vehicle is also a misdemeanor. To be convicted of second degree unlicensed operation, the driver has to have been guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree as described above and: (1) have been previously convicted of third degree unlicensed operation within the preceding eighteen months; (2) has in effect three or more suspensions, imposed on at least three separate dates, for failure to answer, appear, or pay a fine, pursuant to statute; (3) the suspension or revocation is based upon a blood-alcohol test refusal, driving under the influence of alcohol or after having consumed alcohol, or any other alcohol related violation; or (4) the suspension was a mandatory suspension pending prosecution for certain alcohol-related or other specific offenses pursuant to statute. If the second degree charge resulted from having been previously convicted of third degree unlicensed operation within the preceding 18 months, the penalty is a minimum fine of $500 and imprisonment for up to 180 days, or, where appropriate, a sentence of probation or a term of imprisonment as a condition of probation. If the second degree charge was for any other reason as described in (2) through (4) above, the penalties must be a fine of $500 to $1,000 and imprisonment for a minimum of seven and a maximum of 180 days, or, where appropriate, probation or imprisonment as a condition of probation. First Degree Unlicensed Operation of a Motor Vehicle in New York First degree unlicensed operation of a motor vehicle is a felony. First degree unlicensed operation occurs when someone: (1) previously has committed the second degree offense for the above specified reasons, except for a prior offense in the third degree, and is operating while under the influence of alcohol or drugs; (2) commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree as described above and is operating a motor vehicle while such person has in effect ten or more separate suspensions, imposed on at least ten separate dates for failure to answer, appear, or pay a fine; (3) commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree as described above and is operating a motor vehicle while under permanent revocation; or (4) operates a motor vehicle on a public highway, while holding a conditional license, under the influence of alcohol or a drug. The penalties for first degree unlicensed operation are a fine of $500 to $5,000 and a term of imprisonment appropriate for Class E felonies, with a maximum sentence of four years, or, if appropriate, probation or a term of imprisonment as a condition of probation. Of note, the vehicle the person was driving at the time of the offense is subject to confiscation and forfeiture.

Does the officer have to see the driver drive the vehicle? When the officer arrived at Mr. Smith's vehicle in response to an ambulance driver reporting that the car had crashed into a ditch, Mr. Smith told the officer his 13 year old son had been driving.  However, the officer inspected the driver's seat of the vehicle and found that the seat was pushed too far back for the son to have been driving.  He charged Mr. Smith with an OWI, and after trial and appeal, the First Circuit of Louisiana determined that it was a good charge for OWI.  What law supports this decision? (1)  Operating is different from driving: In State v. Lindinger, the Louisiana Supreme Court emphasized that, under La. R.S. 14:98, the State must prove the accused operated a vehicle while intoxicated.  However, the statuet does not require proof that the defendant was driving the vehicle, and the jurisprudence recognizes that the term "operating" is broader than the term "driving." (2)  Some control or manipulation: In State v. Johnson, the court stated that in order to operate a motor vehicle, the defendant must have exercised some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion.  It is not necessary that the car move in order for the State to prove the element of operation. (3)  DWI not limited to state highways: Ultimately, in State v. Leory Smith, the court determined the DWI statute does nto limit the prohibition of driving while intoxicated to driving on state highways, and evidence of operating a vehicle while intoxicated, even in the ditch, constitutes evidence of the offense. Important Cases: State of Louisiana v. Leory Smith, Sr., 638 So.2d 1212 (La. App. 1 Cir. 1994); State v. Lindinger, 357 So.2d 500 (La. 1978); City of Bastrop v. Paxton, 457 So.2d 168, 169 (La. App. 2d Cir. 1984); State v. Johnson, 580 So.2d 998, 1001 (La. App. 3d Cir. 1991); State v. Brister, 514 So.2d 205, 207 (La. App. 3d Cir. 1987); State v. Layssard, 310 So.2 107, 110 (LA. 1975)