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March 14, 2011

Notable little Second Circuit ruling on DWI as criminal history

The Second Circuit has an important and interesting little criminal history ruling today in US v. Potes-Castillo, No. 07-5518 (2d Cir. March 14, 2011)(available here), which starts this way:

This appeal raises the question whether a conviction for driving while ability impaired in violation of New York law must categorically be counted when calculating a defendant’s criminal history score.  Because we conclude that Walter Gonzalez-Rivera’s prior sentence for violating New York’s driving while ability impaired law should not be counted toward his criminal history calculation if it is similar to an offense listed in United States Sentencing Guidelines section 4A1.2(c)(1), we remand to the District Court for determination in the first instance whether Gonzalez-Rivera’s conviction is similar to careless or reckless driving.

March 14, 2011 at 11:30 AM | Permalink


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There is a huge difference between DWI (a crime) and DWAI (a traffic infraction). Under NY law, to be convicted of DWAI, the government only has to prove that the defendant was impaired TO ANY EXTENT. This means that if you drink two glasses of wine and drive, you are probably violating the law. I would not consider such conduct to be wrong or immoral -- indeed 90% of adults have probably driven after a drink or two, including many federal judges. But this technically is DWAI.

DWI on the other hand is driving when one is intoxicated, which is considered to be much greater impairment. And most wold agree that such conduct is wrong.

Posted by: Mike | Mar 14, 2011 1:11:42 PM

so what it SHOULD count. Based on this other threat EVEN your dreams should count for sentencing enhancement


the laws need to apply the same to EVERYONE if they are gonna keep up the illegal shit with sex crimes it long past time to apply those same illegal actions to ALL crimes.

Then maybe the illegal stupidity would stop!

Posted by: rodsmith | Mar 14, 2011 1:43:15 PM

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