Whether New York State law recognizes the offenses of attempted driving while intoxicated and attempted aggravated unlicensed operation of a motor vehicle.

No. When it drafted the Vehicle and Traffic Law, the Legislature did not contemplate the inclusion of attempt in charges of driving while intoxicated and aggravated unlicensed operation of a motor.

Defendant attempted to start a third party's truck while allegedly intoxicated. The state charged Defendant with multiple offenses, including attempted driving while intoxicated (New York Penal Law § 110.00; New York Vehicle and Traffic Law § 1192[2], [3]) and attempted aggravated unlicensed operation of a motor vehicle in the first degree (Penal Law § 110.00; Vehicle and Traffic Law § 511[3]). The trial court granted Defendant's motion for dismissal of the attempt counts reasoning that the charges were legally impossible. The Appellate Division unanimously reversed the trial court's holding. On appeal, the Court of Appeals reversed.

The Court of Appeals agreed with the Appellate Division that the penal statutes concerning driving while intoxicated and aggravated unlicensed operation of a motor vehicle impose strict liability for engaging in a certain conduct as opposed to creating a certain result. The Court therefore reasoned that attempt for these charges was possible. However, the Court determined that the Legislature did not contemplate criminal liability for attempted driving while intoxicated and attempted aggravated unlicensed operation of a motor vehicle.

The Court examined three aspects of the statute. First, the Court found it significant that the Legislature wanted Article 31 of the Vehicle and Traffic Law and § 511 to be fully integrated, thus encompassing all matters concerning drunk driving and operation of a motor vehicle with a suspended or revoked license, respectively. The Court noted that neither Article 31 nor § 511 address attempted driving while intoxicated or attempted aggravated unlicensed operation of a motor vehicle. Second, the Court explained that courts should only look to § 1193 of the Vehicle and Traffic Law to determine the appropriate penalties and sentencing options for drunk driving offenses and to § 511 for charges of unlicensed operation of a motor vehicle. These sections do not include any mention any penalties or sentencing for attempted driving while intoxicated or attempted aggravated unlicensed operation of a motor vehicle. Finally, the Court noted that inclusion of attempt for the two offenses is unnecessary since the broad definition of "operation" of a motor vehicle could reach the targeted conduct and thus bring it under Vehicle and Traffic Law § 1192 itself.