You had the kids in the car. Maybe it was the drive home from a barbecue, or a dinner that ran long. One drink more than you realized. Now an officer is at your window, and what would have been a misdemeanor on any other night just became a felony, because there is a child in the back seat.
I am Ed Palermo, and in 31 years of defending DWI cases on Long Island, these are some of the most frightening calls I take. Good, careful people, parents and grandparents and babysitters, suddenly facing a felony and terrified about two things at once: prison, and losing their children. So let me give you the honest answer, and then let me tell you what can actually be done about it.
Is a DWI with a child in the car a felony? Yes, automatically.
Under what is known as Leandra’s Law, driving while intoxicated or impaired by drugs with a child 15 years old or younger in the vehicle is charged as a Class E felony in New York. It does not matter that it is your first offense. It does not matter that you have a spotless record. The presence of the child turns a misdemeanor DWI into an automatic felony.
- Felony Automatic on a first offense
- 4 yrs Maximum state prison
- Age 15 Or younger triggers it
The law is codified at Vehicle and Traffic Law § 1192(2-a)(b). It is named for Leandra Rosado, an 11 year old girl killed in 2009 while riding in a car driven by an intoxicated adult, and it took effect that December. A first-offense conviction is a Class E felony carrying up to four years in state prison and fines from $1,000 to $5,000. The consequences climb sharply if a child is hurt. If a child suffers serious physical injury, the charge can rise to a Class C felony. If a child dies, it can become a Class B felony carrying up to 25 years. You can read the state’s own summary on the New York Courts Leandra’s Law page.
Arrested with a child in the car?
Tell me what happened and I will tell you where you really stand.
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Suffolk (631) 265-1052
Nassau (516) 280-2160
How this compares to a standard first DWI
The jump from a regular first DWI to a Leandra’s Law charge is not a small step up. It is a different category of case.
| Standard first DWI | DWI with a child 15 or under | |
|---|---|---|
| Charge level | Misdemeanor | Class E felony, first offense |
| Maximum incarceration | Up to 1 year in county jail | Up to 4 years in state prison |
| On your record | Misdemeanor | Felony |
| Ignition interlock | Required | Required |
| Separate child-welfare case | No | Yes, a parallel CPS investigation if you are responsible for the child |
It is not only parentsThis law applies to any driver, not just a mom or dad. A grandparent, an aunt or uncle, a coach, a neighbor, or a babysitter driving someone else’s child is charged the same way. The child does not have to be related to you.
The part almost nobody sees coming: the second case
Here is what catches people completely off guard, and it is the reason these cases are so much more than a criminal charge. When the driver is a parent, guardian, custodian, or otherwise legally responsible for the child, the arresting officer is required by law to report the incident to the Statewide Central Register of Child Abuse and Maltreatment. That report opens a separate Child Protective Services investigation that runs on its own track, completely apart from the criminal case in court.
So you are not fighting one case. You are fighting two. One is about your freedom. The other is about your family. And at arraignment, the court can issue an order of protection on behalf of the child, which in some situations can restrict or limit your contact with your own child while everything plays out. I have seen the family side frighten clients more than the prison exposure, and they are right to take it seriously.
Two separate cases, two separate clocksThe criminal court case and the CPS investigation move independently. Handling one well does not take care of the other. You need a defense that accounts for both from day one.
Worried about your kids and the criminal case both?
That is exactly what I handle. Text me today.
click here to text my cellTEXT ED NOW
Suffolk (631) 265-1052
Nassau (516) 280-2160
These charges can be fought, and they can be reduced
An automatic felony is not an automatic conviction. I have taken these cases apart by going at the things the prosecution has to prove. Was the stop lawful in the first place. Was the chemical test reliable, properly administered, and the machine properly calibrated. Do the officer’s observations actually hold up. In some cases the child’s age is genuinely in question near the cutoff. When the evidence has weaknesses, a Leandra’s Law felony can be negotiated down to a misdemeanor DWI, and in the right case even to a non-criminal DWAI. My piece on getting a DWI reduced to a DWAI explains how those reductions actually work.
Featured ResultI represented a practicing attorney in Suffolk County charged under Leandra’s Law and with felony Aggravated DWI after she was stopped with a child passenger and an elevated chemical test reading. A felony conviction threatened her with disbarment, the loss of her license to practice law, and possible state prison. I worked through the procedural history of the case piece by piece and negotiated directly with a senior supervisor in the Suffolk County District Attorney’s Office. The felony was reduced to a misdemeanor that seals after 36 months. Her legal career and her livelihood were saved.
A bad decision on one night should not cost you your family and your freedom both. My job is to make sure it does not.
Edward A. Palermo, Esq.Long Island Criminal & DWI Defense
Why Long Island takes these cases so seriously
This matters where you are. Long Island, and Suffolk County in particular, has historically led the entire state in arrests under Leandra’s Law, with Nassau among the highest as well. Local prosecutors and judges treat child-passenger DWIs as a priority, and felony files are handled in the more serious courts, the Cromarty Court Complex in Riverhead in Suffolk and Nassau County Court in Mineola. That is exactly why local experience matters here. I know how these specific bureaus and judges approach these cases, because I have stood in those courtrooms for three decades.
What I do when you call me
I treat the whole picture as one problem, because for you it is. I defend the criminal felony in court, I account for the parallel child-welfare side, and I go after every weakness in the state’s proof to push the charge down and keep you out of prison and with your family. I am honest with you from the first call about what is realistic, because you have far too much riding on this to be told only what you want to hear.
I have done this across Nassau County, Suffolk County, and the East End for more than 31 years. I have never been a prosecutor. My entire career has been spent defending people like you. For related reading, see my pages on felony DWI defense, aggravated DWI, and Long Island DWI defense generally.
Charged under Leandra’s Law? Let’s protect your family and your future.
This is a felony, and there is a second case you may not even know about yet. Text or call my cell directly, any time, day or night.
click here to text my cellTEXT ED NOW
Suffolk (631) 265-1052
Nassau (516) 280-2160
Frequently Asked Questions
Is a first-offense DWI with a child in the car really a felony?
Yes. Under Leandra’s Law, VTL § 1192(2-a)(b), driving while intoxicated or impaired by drugs with a child 15 or younger in the vehicle is a Class E felony even on a first offense, punishable by up to four years in state prison and fines from $1,000 to $5,000.
Does the child have to be mine?
No. The law applies to any driver transporting a child 15 or younger, related or not. A grandparent, relative, coach, neighbor, or babysitter faces the same felony charge. The mandatory child-welfare report applies specifically when the driver is a parent, guardian, custodian, or person legally responsible for that child.
Will Child Protective Services get involved?
Often, yes. When the driver is legally responsible for the child, the arresting officer must report the incident to the Statewide Central Register of Child Abuse and Maltreatment, which opens a CPS investigation that runs separately from the criminal case. The court may also issue an order of protection on behalf of the child at arraignment.
Can a Leandra’s Law felony be reduced?
It can be, depending on the facts. When there are weaknesses in the stop, the chemical test, the officer’s observations, or other elements the prosecution must prove, these felonies can be negotiated down to a misdemeanor and, in the right case, to a non-criminal DWAI. An automatic felony charge is not the same as an automatic conviction.
What happens to my license?
Your license is typically suspended at arraignment while the case is pending. A conviction carries a lengthy revocation and a mandatory ignition interlock device. There may also be a separate DMV proceeding, particularly if you refused the chemical test.
What should I do right now if I was just arrested?
Get a defense lawyer involved immediately. There are two cases moving at once, the criminal felony and the child-welfare investigation, and the decisions made in the first days shape both. Do not talk to investigators about the incident before you have spoken with your attorney.
