27 Jul 23

NY DWI – Children in the Car – Leandra’s Law VTL 1192.2-a(b)

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Last Updated on: 8th August 2023, 10:53 pm

Driving while intoxicated (DWI) is a serious offense and has even more significant consequences if you have children in the vehicle. Known in New York as Leandra’s Law, persons charged DWI with children in the car are treated harshly by prosecutors and judges. Because of this, if you are facing a DWI you should seek out legal representation from a New York DWI lawyer to represent you.

What does Leandra’s Law prohibit?
According to Leandra’s Law VTL 1192.2-a(b), it is unlawful to operate a motor vehicle while under the influence of drugs or alcohol, while having a child under the of 16 in the vehicle.

This law is named after Leandra Rosado, an 11 year old who was killed after being a passenger in a vehicle driven by an intoxicated adult. After this incident, the New York legislature revised the law to include stricter penalties in DWI cases where children were placed at risk by being in the vehicle.

Leandra’s law is broken down into different categories with varying penalties, which include:

  • Class E felony–Those who drive while intoxicated with a child younger 15. This could result in 4 years in prison.
  • Class B felony–Those who drive while intoxicated with a child under 15 who is killed as a result. This could result in up to 25 years in prison.
  • Class C felony–Those who drive intoxicated with a child 15 years old or younger and the child sustains a physical injury. This could result in a 15 year prison sentence.

What other penalties may be imposed?
In addition to the prison terms discussed above, a person convicted of a DWI with children in the car could face substantial fines and restitution costs. There could be court-mandated treatment and probation. A driver’s license suspension would also likely result if you are convicted.

A conviction could also result in a report being filed with Statewide Central Register of Child Abuse and Maltreatment who could conduct an investigation. An order of protection could be entered to prohibit contact between certain family members.

Because of these potential consequences, it is important that you seek out representation from an experienced DWI lawyer who can contest the charges or help you negotiate a plea agreement that is just.

Are there any defenses to DWI with children in the car?
Because DWI cases involving children are treated harshly by prosecutors, judges and even juries, it is important to raise any defenses that may be available. Some defenses that may exist in a DWI case include:

  • Errors in the collection and testing procedures used to determine intoxication (e.g., breath alcohol tests, blood test results, etc)
  • Lack of evidence that the driver was intoxicated
  • Violation of constitutional rights (e.g., unreasonable search and seizure, Miranda violations, right to legal counsel, right to remain silent, etc)
  • Lack of probable cause for an arrest or search
  • Errors in the conduct of law enforcement

Each case is unique and may have defenses available that are not readily apparent. A DWI lawyer can review a case to determine if there are defenses that need to be raised. An attorney will know the proper procedure to raise the defense and how to present it to the court in a way that complies with procedural rules.

Overall, the prosecution must be able to prove the elements of a DWI with children case beyond a reasonable doubt. If doubt can be raised, then it may be possible to have the charges dismissed or reduced.

How can a New York DWI attorney help?
By retaining a DWI attorney, you will have an advocate to fight for a just result. They will ensure that you understand your rights and that your rights are not violated. They will take the necessary action to address any issues identified in your case. They will argue on your behalf at all stages of the case, including investigation, bond/bail hearings, preliminary hearings, pretrial conferences, motion hearings and trial.

If you have been charged with DWI with children in the car in New York, then contact us immediately to schedule an appointment.

Don’t deal with NY DWI – Children in the Car – Leandra’s Law VTL 1192.2-a(b) alone. Speak to the Spodek Law Group today.

It is well-known among Driving While Intoxicated (DWI) attorneys in New York that one of the most severe crimes (in terms of DWI offenses) is when an individual drives under the influence of drugs or alcohol with children in the vehicle. Prosecutors, judges, and jurors are unforgiving when it comes to those who drive intoxicated with children passengers, and those charged with this crime could face severe penalties for placing an innocent child at risk.

According to VTL 1192.2-a(b) Leandra’s Law, it is a crime for an individual to operate a motor vehicle when children who are 15 or younger are present in the vehicle. Leandra’s Law was incorporated on November 18, 2009 to honor Leandra Rosado. Leandra was an 11 year old child who was killed when she was a passenger in a vehicle driven by her mother’s intoxicated friend. There were six other children in the vehicle, and when the driver lost control at 70 mph, several children were thrown from the vehicle. When the driver was taken into custody, she had a blood alcohol level of 0.12%, which is significantly higher than New York’s legal limit of 0.08%.

Because of Leandra’s death, the New York Legislature made several adjustments to the Vehicle and Traffic Law (VTL). The amended law made criminal penalties against those who drink and drive with children in the car more severe, and the law now mandates that any indiviudal who is charged with a DWI (after August 15,2010) install an ignition interlock device in their vehicle.

Because Leandra’s Law offenses are considered felonies, an individual charged with any of these offenses may face incarceration in a state prison as well as fines ranging from $1,000-$5,000.

What acts of a DWI are Part of Leandra’s Law?
According to New York Penal Laws, the following acts of a DWI encompass Leandra’s Law offenses:

Class E Felony
If an individual is charged with an E felony, he or she could face a four year prison sentence if it was a first time offense. Those who drive while intoxicated by drugs or alcohol and have a child who is younger than 15 years old will be charged with an E felony.

Class B Felony
If an individual is charged with a B felony, he or she could face up to 25 years in prison for a first time offense. When a child under the age of 15 years old is killed as a result of an intoxicated driver, the motorist will be charged with a B felony.

Class C Felony
A first time offender who drives intoxicated with a child younger than 15 years old, which resulted in the child sustaining serious physical injury, will be charged with a C felony.

Furthermore, parents who face one of these convictions will be reported (by police or prosecutors) to the Statewide Central Register of Child Abuse and Maltreatment. Child Protective Services will order a detailed investigation of the individual who was driving as well as family members who reside with the motorist. An Order of Protection will be issued against the motorist in favor of the child at an arraignment. As a result, it is likely the motorist will not be allowed to have any contact with the child passenger. If an individual wants to modify an Order of Protection, he or she will have to file an application in Family Court.

Aside from putting a child at serious risk, those who drive intoxicated with a child in the vehicle could face ridicule from their community. However, it is important to remember that humans are not perfect. There are many good people who make bad choices, and a Leandr’s Law violation can result in serious consequences. These offenses are difficult to fight, so those facing a Leandra’s Law offense should contact a New York DWI attorney immediately.

Why Proper Defense is Crucial for DWI Cases That Involve Child Passengers
Judges and jurors are more likely to take extremely harsh views on those who are accused of driving while intoxicated with children passengers and will typically impose the maximum punishment. Furthermore, prosecutors are usually reluctant to accept a plea bargain with these types of cases. It is imperative that alleged offenders contact a DWI attorney who is qualified to help those who have been arrested for violating Leandra’s Law.

An experienced DWI attorney may be able to fight allegations with defenses that include:

  • Errors in Blood Alcohol Content [BAC] testing
  • When the driver was stopped illegally
  • A lack of probable cause
  • Other procedural faults made by law enforcement

Furthermore, individuals who were legally prescribed the drug, which allegedly caused the intoxication, will need to seek legal representation.