Drunk Driving Accident

June 10, 2003

For DWI Victims NY Governor & Legislation Stiffens DWI Penalties, Allows for Consecutive Sentences, and Creates New Crimes for Driving Under the Influence of Drugs and Alcohol

Governor George E. Pataki today joined Mothers Against Drunk Driving (MADD) National President Wendy Hamilton and families of victims killed in DWI-related crashes to urge passage of comprehensive legislation that would toughen penalties for driving while intoxicated (DWI).

The Governor's Pena-Herrera DWI Omnibus Bill would stiffen penalties for crimes related to driving while intoxicated, allow for consecutive sentences, create new crimes for driving while under the influence of alcohol and drugs, and enhance the penalties for the evasion of a police officer. The proposed legislation was in part, drafted in response to the terrible loss of the Herrera family members in Sunset Park, Brooklyn, at the hands of Police Officer Joseph Gray.

"This comprehensive life-saving legislation sends a clear message that New York will not tolerate drunk or drugged driving," Governor Pataki said. "We can not afford to wait another year for the Assembly to act on this critical legislation that will improve the safety of our roadways and prevent DWI-related fatalities.

"New York has made tremendous gains in the battle against DWI, but there is still more work to be done. By enacting tough new DWI legislation that will help our law enforcement professionals crack down on reckless and irresponsible drivers, we can prevent needless tragedies," the Governor said.

Lt. Governor Mary Donohue said, "We have made monumental changes in our criminal justice system during the past several years with the goal of protecting our citizens and saving lives. This legislation is just another step toward that goal."

Senator Patricia McGee said, "I along with the Governor urge the Assembly to take up this important legislation and move forward with the DWI Omnibus Act. As Chair of the Senate committee on Alcoholism and Drug abuse, I believe that this comprehensive piece of legislation will certainly help in preventing the horrific consequences of driving while under the influence of alcohol and drugs. This legislation ensures that drunk drivers who cause personal injury or death to others are sufficiently punished for their selfish actions. This legislation will create new crimes and make important reforms to the crimes of Vehicular Assault and Vehicular Manslaughter by allowing for the imposition of consecutive sentences. These tough new penalties will ultimately save lives by removing drunk drivers from our highways. The Governor is to be commended for his leadership on this comprehensive package of life saving legislation.

Raymond P. Martinez, Commissioner of Motor Vehicles and Chair of the Governor's Traffic Safety Committee said, "Governor Pataki is fighting for the safety of all New Yorkers by calling for stiffer penalties for crimes involving DWI, which are included in the Pena-Herrera Omnibus bill. We will continue to work in partnership with law enforcement to help prevent needless tragedies from occurring and to ensure that New York State roadways continue to be among the safest in the nation."

MADD National President Wendy Hamilton said, "In 2001, there were 498 alcohol-related traffic fatalities in New York, which could have been prevented. With Governor Pataki's new anti-drunk driving legislation, lives will be saved because of the powerful combination of strict laws, empowered law enforcement officers, stern sentences and public awareness that drunk driving is a serious crime."

Joining the Governor at the press conference were Dean and Anne Bodnar, and Anna Russo. Dean and Anne Bodnar, Troy residents, are the parents of Allison Bodnar, a teenager who was killed in 1998. Allison Bodnar was hit by drunk driver as she stood on a road in Troy talking to friends. The driver, Michelle Tracey, did not undergo a breathalyzer test, however, she admitted to police that she had at least 10 to 12 drinks over the course of four hours before getting behind the wheel. She is currently serving a sentence of 2 ? to 8 years.

Anna Russo's four-year old daughter, Gabriella and five-year-old nephew, Nicholas Esposito were killed by a driver under the influence of both alcohol and marijuana in Colonie in 1989. Her sister-in-law, Susan Esposito, sustained injuries from the crash and survived. The driver, Joseph Hope, served a 2 ¾ to 5 year sentence. Dean Bodnar said, "We applaud the Governor's initiative in fostering the rights of victims, making the punishment more suitably fit the seriousness of the crime, and restoring balance to the scales of justice."

Anna Russo said, "I applaud Governor Pataki for proposing this legislation. Every life is so important. People should come to realize that when they drive under the influence of alcohol or drugs that their actions may have fatal consequences. When more than one person is injured or dies as a result of drunk driver, the driver must realize the consequences of their recklessness, which is why I support the Governor's legislation one hundred percent."

New York State Director of Criminal Justice Chauncey G. Parker said, "The Governor's tough and common-sense DWI legislation will help protect New York's roadways from drunk, drugged and reckless drivers. This legislation will help law enforcement apprehend individuals who drive drunk and under the influence of drugs before even more lives are lost needlessly."

State Police Superintendent James W. McMahon said, "The New York State Police is committed to preventing needless tragedies through education and enforcement. We must never forget the pain and grief caused by impaired drivers through their wanton disregard for safety. Governor Pataki's legislation addresses the risks presented by these callous drivers who leave a totally unnecessary wake of victims, such as the Herreras."

Pena-Herrera DWI Omnibus Bill

The Governor's legislation combines elements of his previously proposed Pena-Herrera legislation and his DWI Omnibus bill into one comprehensive package. The Pena-Herrera DWI Omnibus bill allows for consecutive sentences and stiffer penalties for vehicular manslaughter resulting from DWI. The bill also creates new offenses for aggravated driving while intoxicated, and new penalties for driving while ability impaired by drugs and alcohol.

The Senate passed legislation in 2002 and again this year, that sought to toughen penalties for DWI and included provisions similar to the new Pena-Herrera bill. Highlights of the Governor's Pena-Herrera DWI Omnibus bill include:

Consecutive Sentences and Stiffer Penalties for DWI/Vehicular Manslaughter

Allow for consecutive sentences if more than one person is injured or killed as a result of a single criminal act.
Increase penalties for first-degree Vehicular Manslaughter from a Class C felony, punishable by up to 15 years in prison, to a Class B felony, punishable by up to 25 years in prison, and increase penalties for second-degree Vehicular Manslaughter from a Class D felony, punishable by up to 7 years in prison, to a Class C felony, punishable by up to 15 years in prison.
Remove the requirement under current law that prosecutors prove criminal negligence when prosecuting cases of Vehicular Manslaughter in the Second Degree and Vehicular Assault in the Second Degree for causing death or serious physical injury while driving in an intoxicated condition.
Create a new Class B felony, punishable by up to 25 years in prison, committed when a person operates a vehicle in violation of the speed limit, knowing that he or she is being pursued by a police officer, and thereby causes the death of another person.
Create a new Class C felony, punishable by up to 15 years in prison, committed when a person operates a vehicle in violation of the speed limit, knowing he or she is being pursued by a police officer, and causes serious physical injury to another person.
Even the scales of justice by extending to the prosecution the right to appeal bail decisions, comparable to the right long-enjoyed by defendants. Federal prosecutors and most other state prosecutors have this right.
Under current law, when a criminal injures or kills more than one victim through a single act or omission -- such as driving a vehicle while intoxicated, setting a fire, exploding a bomb or firing a pistol or rifle -- judges have no discretion to direct that the sentences imposed for the crimes committed against different victims be made to run consecutively.

As a result, the maximum penalty that can be imposed on a criminal who seriously injures, maims or kills two, five or ten innocent victims through a single criminal act is no greater than the maximum sentence for one victim. Under the Governor's proposal, when persons are charged with killing several innocent people by a single act, like in the case of the Pena-Herrera tragedy, judges would be empowered to impose consecutive sentences upon conviction.

Current law is also inadequate because it fails to define criminal offenses targeted at those who speed away from pursuing police officers and seriously injure or kill innocent persons.

Creation of New Offenses for Aggravated Driving While Intoxicated

Studies reported by the National Highway Traffic and Safety Administration (NHSTA) conclude that virtually all drinkers have some level of impairment in critical driving tasks at .08 percent BAC levels. Research also shows that the higher the BAC levels, especially over .08 percent, the greater the risk of involvement in a motor vehicle crash.

Logic dictates that a motorist who drives with a BAC at .20 or higher, more than double the legal BAC limit in the State, should be charged with a more serious crime, and subject to more significant punishment, than a driver with a BAC of .08. Under this proposal, if a person drives with a BAC of .20 or more, he or she would be guilty of a new crime, aggravated driving while intoxicated, which carries the weight of a Class E felony and is punishable by up to 4 years in prison.

Already 30 other states have enacted similar provisions to toughen penalties for aggravated DWI.

Creation of New Offenses for Driving While Ability Impaired by Alcohol and Drugs

Driving under the influence of alcohol or illegal drugs has serious and often fatal consequences. However, driving while impaired by the combined effects of alcohol and illegal drugs also leads to tragic results -- even if a driver's BAC level is within the legal limit.

Several states have passed legislation prohibiting the operation of a motor vehicle while under the combined influence of alcohol and illegal drugs, thereby recognizing that motorists who ingest both alcohol and drugs at the very least pose the same level of risk to public safety as motorists who ingest one but not the other. By creating the new offense of driving while ability impaired by alcohol and drugs, the bill will help make our roads and highways safer.

Evasion of Police Officer

In addition to working to reduce the number of drunk-driving tragedies, New York State strives to keep its roadways free from other unsafe drivers as well. Too many fatalities have occurred by drivers who display an outrageous disregard for the well-being of others by traveling in excess of the speed limit and refusing to comply with police officers.

Currently a motorist who evades a police officer is subject to merely a traffic infraction. Motorists who drive at unsafe speeds while evading a police officer, greatly jeopardize the safety of other motorists and pedestrians. The Governor's proposal would make evading a police officer a crime, and when that evasion causes death or serious injury to another person, the penalty would be an E Felony.