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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 24060
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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ONLY NYS Lic Lawyer Please: My daughters boyfriends aunt and

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ONLY NYS Lic Lawyer Please: My daughters boyfriend's aunt and uncle just learned their 16 yr old daughter has an aggressive and deadly form of cancer. In his younger years - the dad had several dui's on his record. He however has not had any issues over the past 12 years.
Last night, distraught over his daughter he made a bad decision, was stopped and blew a .13. His family is now beside themselves concerned that he will go to jail because of his past record. We were looking at the NYS DMV laws for DUI and they explain the fines and penalties for 1st, 2nd, 3rd offense over the past TEN YEARS.
Will this be viewed as the first offense in ten years? or is at the descretion of the judge if they go back to the prior dui's when he was younger? Hope you can help.
Hello Jacustomer,

New York has a 10 year lookback period. So if his last conviction was 12 years ago, this should count as his first DWI. The wording is found in 1192.3 of the Vehicle and traffic Law, which gives the sanctions for DWI.

The section of the law is the felony section of 11.92.3:

(c) Felony offenses. (i) A person who operates a vehicle (A) in violation of subdivision two, two-a, three, four or four-a of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, two-a, three, four or four-a of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 and aggravated vehicular assault as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 and aggravated vehicular homicide as defined in section 125.14 of such law, within the preceding ten years, or (B) in violation of paragraph (b) of subdivision two-a of section eleven hundred ninety-two of this article shall be guilty of a class E felony, and shall be punished by a fine of not less than one thousand dollars nor more than five thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.

This would be a misdemeanor and not a felony.
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