New York DWI Lawyer Blog

With the arrival of summer and longer daylight hours, families go to more parties and events. Motorists are charged with more DWIs in the summer, especially on the major summer holiday weekends – Memorial Day, Fourth of July, and Labor Day. For the quarter-century that the National Highway Traffic Safety Administration (NHTSA) has been tracking car crash statistics, the Fourth of July has repeatedly ranked as the deadliest holiday of the year for alcohol-related car crashes. Approximately 50% of all fatal car crashes on the Fourth of July are related to alcohol. As the Fourth of July – the hallmark event of summer – approaches, the implications of the new DWI laws, particularly Leandra’s Law, will become even more evident.

The summer of 2011 will mark the first full summer that any driver convicted in New York of driving while intoxicated with a child younger than 16 years old in the vehicle will face penalties under the fully implemented Leandra's Law, more formally known as the Child Passenger Protection Act (CPPA). New York is one of 36 states with special child endangerment laws that impose tougher sanctions on drivers who are driving with a child passenger while under the influence of alcohol or drugs. The CPPA, first went into effect on December 18, 2009, making it a felony to drive while intoxicated with a passenger younger than 16 in the vehicle. The law is named after 11 year old Leandra Rosado, who died when a friend’s mother drove while intoxicated and was involved in a rollover accident. The second part of the CPPA became effective on August 15, 2010, requiring anyone convicted of DWI to drive only vehicles that are equipped with an interlock ignition device (IID), which must be installed and maintained at their own expense on any vehicle they own or operate for at least six months from the time of sentencing (but frequently for at least one year).

An interlock ignition device requires a driver to blow into an alcohol sensor before the car can be started, and requires the driver to provide breath samples at random intervals while driving. The IID includes a camera that takes pictures of the driver, and tracking that provide authorities with real-time information for the vehicle. The total cost for installation, six months of service, and removal can be over $1,000. The costs of the IID is in addition to fines, surcharges and DMV penalties of a DWI conviction. A first-time DWI conviction carries a fine of at least $500, a surcharge of $400.00, loss of a full driver’s license for at least six months, and attendance at the New York State DMV Drinking Driver Program (DDP) and MADD Victim Impact Panel.

It is important to advise all reading this blog that the authorities are aware that some drivers attempt to exploit loopholes in Leandra’s Law by transferring the title to the car, selling the car, or denying ownership, to avoid installing an IID. Further, there have been numerous cases of people tampering with interlock devices, attempting to have someone else blow into the device who is not intoxicated, or renting cars that are not equipped with the IID. In New York, drivers who are found to have either tampered with or in any way failed to comply with the IID requirements of their sentences will face a new Class A misdemeanor charge and up to one year in jail. In addition, anybody who helps a driver circumvent the law by blowing into a device so an intoxicated person can drive also faces a Class A misdemeanor charge if caught. Given the harsh consequences of DWI convictions, it is important that drivers arrested for any drunk driving charge contact an experienced criminal defense attorney immediately.

Continue reading " New York DWI--More DWI Arrests In The Summer Months " »

During the course of an arrest for New York DWI, the arresting officer will request that you take a chemical test of your blood, urine, or breath. Most commonly, the request is to take a breathalyzer, which should not be confused with the breath screening test (often an alka-sensor is used at the scene, the results of which are not admissible in Court). When the request is made, many people react based upon what friends or relatives have told them, i.e., always refuse the test (not great advice) try to chew a piece of gum or drink coffee ( absolutely useless), or stall (not going to work).

What most drivers do not know, is that you do have a qualified right, based upon a 1968 Court of Appeals case People v Gursey, to contact an attorney to advise you as to whether to take the chemical test or not. To be clear, because the issuance of a driver's license is a privilege, and not a constitutional right, there is no absolute right to an attorney, as there would be in a criminal case. Clients often confuse the fact. The DWI case is a criminal case, whereas a failure to take the chemical test results in a Refusal Hearing, which is an administrative proceeding, conducted at the local Department of Motor Vehicles office for that county.

The caveat to your rights under Gursey, is that you may not "substantially interfere with the investigative procedure" while requesting to contact a lawyer. What this means is that if you need to start looking up the name of an attorney while in the course of your DWI arrest, or start frantically calling friends to get the name of a lawyer who may or may not be available when you call (not too likely at 3:00 in the morning), the qualified right to counsel established under People v. Gursey is not likely to help you.

The best advice that I can offer is to have an attorney's name and phone number saved in your cell phone, so that if you are stopped for a DWI, and a request is made for you to consent to a chemical test, you can quickly contact an attorney that you know you will be able to reach, and receive the advice that you need.

Continue reading " New York DWI-- Your Rights When Asked To Take Breathalyzer " »

I recently represented a client in a Mount Vernon DWI case. He had been charged with a DWI a few weeks before, and had no alternative options to get to work other than driving himself--he lives alone, has no local friends or family, and works in a location which does not have easily accessible public transportation. Further, taxis would be prohibitively expensive. Under normal circumstances, this would be a client who might very well be eligible for a "hardship license", which privilege allows those charged with a DWI to drive to and from work, school, for medical treatment, and emergencies during the pendency of a DWI case.

However, the problem for this client is that he lost his eligibility for a hardship license due to his refusal to take a chemical test when the arresting officer asked him to take a breathalyzer. Clients frequently ask the question--"If I am asked to take the test, should I do it?" There are several factors which go into the decision whether or not to take a chemical test: Have you ever been convicted or pled guilty to a DWI before? Are you a commercial driver? Was there an accident involved? How much did you have to drink? The conventional wisdom among DWI lawyers seems to be that if there was an accident or if you have had a substantial amount to drink, it might be the wisest course of action to refuse the test. (The caveat being that in some cases the investigating police can obtain a Court order compelling a mandatory blood test even with a refusal, particularly if there was a bad accident.)

Commercial drivers will suffer much more serious consequences if found guilty of a refusal, (or any DWI related charge for that matter) and on a second refusal, can suffer permanent revocation of their commercial driver's license, effectively ending their chosen livelihood. In summary, the decision whether to take a chemical test is a complicated one, and listening to people who don't know any better telling you that it is always better to refuse is not a wise decision--the circumstances surrounding your case absolutely DO matter.

If you have not had much to drink, there was no accident, and you have not previously been convicted or pled guilty to a DWI, the wise course is to take the chemical test. Why? Because if you are found guilty of a refusal, you will have your license revoked for one year, and pay an additional fee of $500.00 to the Department of Motor Vehicles. Further, as in the case with my client, you will find yourself ineligible to obtain a hardship license while the criminal case is proceeding.

Continue reading " Westchester DWI--Implications of Chemical Test Refusal " »