Presence of a Minor Passenger and Crash Elevates a First-Offense DWI to Suspension-Level Misconduct in Attorney Discipline

Introduction

In Matter of Furber (2025 NY Slip Op 04786), the Appellate Division, Second Department, imposed a six-month suspension on an attorney following his conviction for driving while intoxicated (DWI) under Vehicle and Traffic Law (VTL) § 1192(3), an unclassified misdemeanor. The case arose from a single-vehicle accident in which the respondent, William James Furber III, was driving with his minor daughter as a passenger. The proceeding was conducted under the post-conviction disciplinary framework of 22 NYCRR 1240.12(c)(3)(iii).

The central issues were: (1) the nature and degree of professional discipline appropriate where a lawyer convicted of a non-serious crime (a misdemeanor DWI) drove while intoxicated with a child passenger and crashed; (2) whether the respondent’s extensive mitigation and rehabilitation efforts warranted a private admonition or censure rather than suspension; and (3) the allocation of the burden at a 22 NYCRR 1240.12(c)(3)(iii) “show cause” hearing.

The decision clarifies that, in attorney disciplinary proceedings, the presence of a minor passenger and an actual crash are powerful aggravating factors that can warrant suspension even for a first-offense misdemeanor DWI, notwithstanding substantial mitigation. It also reiterates that, in a show-cause posture under Part 1240.12, the respondent bears the burden of demonstrating why a final order of discipline short of suspension or disbarment should be avoided.

Summary of the Judgment

The respondent pleaded guilty to VTL § 1192(3) (DWI). He had been initially charged, among other counts, with aggravated DWI with a child under VTL § 1192(2‑a)(b), a felony, but ultimately pled to the misdemeanor count.
Following the conviction, the Court issued an order to show cause under 22 NYCRR 1240.12(c)(3)(iii) and referred the matter to a Special Referee (Hon. Arthur J. Cooperman) for a hearing on sanction.
After hearing, the Special Referee concluded the respondent did not demonstrate why a final order of suspension, censure, or disbarment should not be made.
The Grievance Committee moved to confirm; the respondent cross-moved to disaffirm and requested a private admonition or, alternatively, a public censure.
The Appellate Division confirmed the Special Referee’s report, denied the cross-motion, and imposed a six-month suspension, emphasizing the totality of circumstances, particularly that the respondent drove intoxicated with his minor daughter and crashed into a tree, causing the vehicle to spin and strike a curb.
The suspension commences September 26, 2025, with earliest reinstatement application permitted on February 26, 2026, contingent on compliance with the rules governing suspended attorneys.

Analysis

Procedural Framework and Governing Standards

The proceeding was governed by 22 NYCRR Part 1240, specifically 1240.12(c)(3)(iii), which allows the Court, upon notice of conviction of a crime that is not a “serious crime” under Judiciary Law § 90(4)(d), to direct the respondent to show cause why a final order of discipline should not issue and to conduct a hearing before a Special Referee. Several rules and statutes shaped the outcome:

22 NYCRR 1240.12(c)(3)(iii): Show-cause procedure following conviction of a non-serious crime; places the onus on the respondent to demonstrate why a final disciplinary order should not be entered.
Judiciary Law § 90: General authority for attorney discipline and interim/ final orders, including the directive to desist and refrain during suspension.
22 NYCRR 1240.15 and 1240.16: Compliance obligations for suspended attorneys and the standards for reinstatement applications, including proof of non-practice and adherence to suspension terms.
VTL § 1192(3): The misdemeanor DWI conviction that triggered the disciplinary process.
VTL § 1192(2‑a)(b): Aggravated DWI with a child (initial felony charge not pursued to conviction), relevant as factual aggravation even without a felony conviction.
VTL § 1194(1)(b): Refusal of a preliminary breath test (traffic infraction), part of the factual matrix.
Penal Law § 260.10(1): Acting in a manner injurious to a child (initial misdemeanor charge), again part of the initial charging context.

Notably, the Court did not cite prior case law; the decision is grounded in these rules and statutes and in the Court’s evaluation of aggravating and mitigating facts under the “totality of the circumstances.”

Factual Aggravation and Mitigation

Aggravating factors highlighted by the Court:

Intoxicated driving with a minor child as a passenger.
An actual crash—into a tree causing airbag deployment and subsequent impact with a curb.
Observable indicia of intoxication: odor of alcohol, slurred speech, watery eyes, confusion, and poor performance on field sobriety testing.
Refusal to submit to a preliminary breath test on scene.
Factual admission at hearing that the respondent had more to drink than initially told police.

Mitigating factors the Court expressly considered:

Long record of public service (Assistant District Attorney for approximately nine years) and subsequent community involvement.
Significant and sustained rehabilitative efforts: weekly counseling for alcohol use disorder, continued treatment after completion; participation in an accountability group; psychiatric treatment for anxiety; complete abstinence from alcohol since the incident (per testimony).
Completion and exceeding of community service obligations, including 180 hours with a food pantry and board service.
Compliance with criminal court conditions (interim probation, MADD panel, parenting skills program, ignition interlock, and Impaired Drivers Program).
Child Protective Services investigation resulting in a “no finding.”
Remorse and acceptance of responsibility.

Precedents and Authorities Cited

The opinion does not cite prior judicial decisions. Instead, it applies the disciplinary rules and statutes noted above. The absence of case citations suggests that the Court viewed the matter as one governed by established procedural rules and principled sanctioning discretion, rather than by a close question controlled by precedent.

That said, the decision aligns with broad patterns in New York attorney discipline: first-offense misdemeanor DWIs without aggravation have often resulted in public censures, whereas aggravating circumstances—especially those elevating risk to the public, such as a crash, refusal to test, or the presence of a child passenger—have drawn suspensions. This case concretely situates “child passenger + crash” as a combination sufficiently aggravating to warrant a six-month suspension even amid robust mitigation.

Legal Reasoning

Burden in show-cause posture: Under 22 NYCRR 1240.12(c)(3)(iii), the Court framed the issue as whether the respondent demonstrated why a final order (including suspension) should not be made. The Special Referee found that burden unmet, and the Court confirmed this conclusion.
Totality-of-the-circumstances sanctioning: The Court expressly weighed extensive mitigation but concluded that the respondent’s conduct—driving while intoxicated with his minor daughter, culminating in a crash—warranted a suspension. The decision reflects the protective purpose of attorney discipline: safeguarding the public, preserving confidence in the bar, and deterring similar conduct, rather than punishing the lawyer for its own sake.
Consideration beyond the conviction’s elements: Although the felony “aggravated DWI with a child” charge did not result in conviction, the Court considered the underlying facts (child passenger, crash) as aggravating. This confirms that, in disciplinary matters, the Court may consider the factual record surrounding the conviction, not just the statutory elements of the offense to which the plea was entered.
Sanction calibration: The suspension length—six months—reflects a middle course: more serious than censure (which the respondent requested as the maximum alternative) but measured in light of substantial mitigation, sustained sobriety efforts, and community service. The Court rejected a private admonition as incompatible with the gravity of the conduct.

Impact and Prospective Significance

For future attorney discipline cases in New York:

Baseline expectation: A first-offense misdemeanor DWI may result in censure in the absence of aggravation, but where a minor passenger and an actual crash are present, a suspension is likely—even with robust mitigation.
Charge reductions do not cabin disciplinary facts: Pleading down from aggravated DWI with a child to a simple DWI does not insulate the respondent from disciplinary aggravation based on the presence of a child and crash.
Burden allocation matters: In 1240.12(c)(3)(iii) proceedings, respondents should assume they must affirmatively justify why a sanction short of suspension is appropriate and marshal mitigation accordingly. Absent compelling evidence, suspensions can follow when public-safety aggravators are present.
Rehabilitation helps but may not avert suspension: Early treatment, abstinence, accountability work, and significant community service are important and may limit the duration of suspension—but may not reduce the sanction to censure when endangerment of a child and an accident are involved.
Administrative compliance highlighted: The order underscores strict compliance requirements during suspension (e.g., refraining from practice, returning secure passes, filing an affidavit of compliance) and that reinstatement is not automatic at the end of the suspension period.

For criminal practitioners advising attorneys facing DWI charges:

Advising a plea from an aggravated child-passenger felony to a misdemeanor does not end the disciplinary risk; the disciplinary court can and will consider the underlying conduct.
Immediate and sustained remediation enhances mitigation; nevertheless, when a child was in the car and a crash occurred, counsel should set client expectations toward a likely suspension and prepare accordingly.

Complex Concepts Simplified

“Serious crime” vs. “non-serious crime” (Judiciary Law § 90(4)(d) and 22 NYCRR Part 1240): A “serious crime” (often a felony or specified misdemeanors) triggers expedited processes and potential interim suspension. A misdemeanor DWI under VTL § 1192(3) is generally treated as a non-serious crime, but the Court still may impose final discipline after a show-cause hearing.
Order to show cause under 22 NYCRR 1240.12(c)(3)(iii): The Court orders the attorney to explain why discipline (including suspension) should not be imposed. The attorney bears the burden.
Special Referee: A judicial officer appointed to conduct hearings, take evidence, make findings, and recommend outcomes. The Appellate Division may confirm, modify, or reject the report.
Sanction types:
- Private admonition: Non-public discipline issued by a Grievance Committee; the Court here declined to direct it.
- Public censure: Formal public reprimand.
- Suspension: Temporary removal from practice; reinstatement requires application and proof of compliance.
- Disbarment: Removal from the bar, with stringent conditions for any future readmission.
Ignition Interlock Device (IID): A device requiring a breath sample before a vehicle can be started; part of the criminal sentence here.
Impaired Driver Program (IDP): A state program for DWI offenders focusing on education and rehabilitation.
Preliminary Breath Test (PBT) vs. Chemical Test: A PBT is typically a roadside screening; refusal can be a traffic infraction under VTL § 1194(1)(b). A chemical test (e.g., at a precinct) has separate administrative and statutory consequences.
Affidavit of compliance (22 NYCRR 1240.15(f)): A sworn statement a suspended attorney must file, confirming steps taken to cease practice, notify clients and adversaries, and return secure passes, among other obligations.
“Totality of the circumstances” analysis: A holistic balancing of aggravating and mitigating factors to decide the appropriate sanction.

Conclusion

Matter of Furber establishes and clarifies an important disciplinary contour in New York: when a lawyer’s first-offense misdemeanor DWI involves a minor passenger and an actual crash, a suspension—here, six months—will be warranted even in the face of substantial mitigation and rehabilitation. The Court’s approach underscores three core points: the respondent’s burden to dissuade the Court from imposing final discipline in a 22 NYCRR 1240.12(c)(3)(iii) show-cause proceeding; the primacy of public safety and trust in calibrating sanctions; and the Court’s willingness to consider the full factual record (such as the presence of a child and an accident) irrespective of charge reductions in the criminal case.

For the bar, the decision is both a caution and a guide: while robust remedial efforts are essential and can temper outcomes, certain aggravating facts—especially endangering a child and causing a crash—move a case beyond censure into suspension territory. Counsel advising attorneys in similar circumstances should anticipate that trajectory and prepare mitigation and compliance strategies accordingly.