Can You Vacate a New York DWI Plea if the Court Failed to Advise You of Possible Felony Consequences of a Second DWI Arrest?

Most people are familiar with New York DWI laws and crimes on a general level. That is, if you drive drunk in Manhattan, drive under the influence in Brooklyn or drive while intoxicated in White Plains, the potential crimes that you face are only one of a few set forth in New York’s Vehicle and Traffic Law. If you “blow” a .08 or higher you will likely be arrested and charged with DWI pursuant to VTL 1192(2) or VTL 1192.2 and if you refuse to give a BAC sample in an intoxilyzer or you display the characteristics of intoxication such as blood shot eyes and slurred speech, you will be arrested for DUI pursuant to VTL 1192(3) or VTL 1192.3. Regardless, each of these crimes are misdemeanors punishable by jail, probation, the Drunk Driver’s Program (DDP) a fine and license suspension.

What is less known by many people including those legal professionals who are not New York DWI lawyers or DUI attorneys, is that a second DWI arrest (actually a conviction) is punishable as a felony offense with a sentence of up to four years in prison. This second drunk driving arrest in New York must be within ten years of the previous arrest and conviction. It is important to recognize that an arrest for VTL 1192.2 or VTL 1192.3 is not enough to establish the basis of the felony DWI crime. Further, if a lesser plea offer is accepted to the violation of Driving While Ability Impaired is accepted (VTL 1192.1 or VTL 1192.(1)), this non criminal disposition will also not be form the foundation of a felony DUI conviction.

Keeping all of these statutes and drunk driving laws in mind, if you plead to a misdemeanor DWI crime such as VTL 1192(2) or VTL 1192(3), must the court advise you that a future arrest for the same otherwise misdemeanor DWI crime within the statutorily recognized period will result in a new felony DWI arrest? If , for example, you are not advised of immigration consequences of your plea, you may have a ground to appeal your conviction? Logically then, if the court fails to advise you of a future potential felony, were your due process rights compromised? Did you knowingly enter a proper plea? For better or worse, the answer to these questions is that your plea, even without the information of potential future felonious acts, is legal and proper.

In People v. Seth Lofton, 12088C-2012, NYLJ 1202593900024, at *1 (Sup., BX, Decided March 21, 2013), the defendant faced the exact same circumstances and questions addressed above. Less than one year after his conviction for DWI, Lofton was again arrested for the same offense and charged with VTL 1192.3 and VTL 1192.2. Obviously within ten years of his first conviction, the second misdemeanor arrest was then bumped up to a felony crime. Arguing he was stripped of his due process rights and did not voluntarily plea because he was unaware of the future and potential collateral consequences of that plea, Lofton sought to vacate his plea.

As decided by the court:

“Certainly, a defendant is entitled to an explanation by the court of a plea’s direct consequences, meaning those that have definite, immediate, and largely automatic effects on his punishment. He is not, however, entitled to an explanation of potential collateral consequences of a conviction (People v. Catu, 4 NY3d 242, 244 [2005]). The reason is that collateral consequences are peculiar to the defendant, and generally result from actions that the court does not control (Ford, 86 NY2d at 403). Requiring otherwise would place an impractical and unjustified burden on the courts (see People v. Wilson, 81 Misc 2d 739, 741 [Dist Ct, Nassau County 1975, Fertig, J.])….As such, the court’s failure to disclose that he may be subject to a felony prosecution and sentence enhancement for a second DWI offense does not render his plea involuntary, or entitle him to vacatur of his conviction.”

Unfortunately, for Lofton, a second DWI arrest within ten years of one’s first arrest is grounds for a felony DUI charge. Lofton’s ignorance of the law is of no consequence to his earlier misdemeanor plea. There is no substitute for knowing the law.

To read about the intricacies of New York DWI laws and DUI crimes, including Hardship Hearings, Refusal Hearings, VTL 1192(3), VTL 1192(2), VTL 1192(1), Leandra’s Law, felonies, misdemeanors, legal decisions and cases in the news, review the DWI & DUI crimes section of There you will find links and other content related to the NewYorkCriminalLawyerBlog.Com as well.

Founded by two former Manhattan Assistant District Attorneys who served in the DUI Unit, Saland Law PC is a New York criminal defense firm located in lower Manhattan. The New York criminal lawyers and New York DWI attorneys at Saland Law PC represents clients in all drunk driving related matters throughout the New York City and suburban region.

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