Simply put, the breath screening test is an unscientific test which the officer requests that the client take in order to have probable cause to make the DWI arrest. However, this test, since it is not scientific, is not admissible in Court. Thus, the arresting officer will request that the client take a breathalyzer, or other chemical test of blood, urine or saliva, at the precinct, which is admissible in Court and forms the evidentiary basis for proving a DWI case in Court. Of course, the officer never explains the distinction between the non admissible BST that the client took at the scene, as opposed to the scientific and admissible Breathalyzer which the client is requested to take at the precinct.

Inevitably, and to the client's dismay and surprise, when the client responds to the request: "Will you agree to take a chemical test of your breath at this time?" with an "I already took the breathalyzer earlier", the officer never explains the distinction between the tests--and thereafter, when the client does not take the breathalyzer thinking they have already done so, they are charged with a refusal.

The Refusal to take a chemical test is not a crime as is a DWI or Aggravated DWI, but it carries with it enormous implications for the client's driving privileges, fines, and ability to resolve the criminal case. If found guilty of a refusal to take a chemical test at the Administrative hearing before a Department of Motor Vehicles judge, there is an automatic one year revocation of the client's license, fines which are generally at least $1,000.00, and the client is now not eligible for a "20 day stay" at the end of the DWI case in order to more quickly get their "conditional license" which allows them to drive to and from work, doctor's appointments, to pick up children from day care or for emergencies.

The issue of off duty cops driving drunk came to light as a result of a spate of four recent accidents involving Westchester police officers. On December 11, 2009, Dobbs Ferry Police Officer Michael Huffman was charged with DWI in a rollover accident in Tarrytown. On December 27th, there were two accidents--Westchester County Police Officer Joseph Kraus allegedly went through a red light in Scarsdale and struck the vehicle of on duty officer Jessica Knatz, who was hospitalized as a result of the accident, and County Correction Officer Patricia Yancy-Johnson is alleged to have struck an ambulance in Greenburgh. Lastly, on December 31, 2009, White Plains Police Officer Joe Zepeda is accused of striking a truck on I-287. All four officers are due back in Court between January 26th and February 5th, and all have been suspended by their departments, in Zepeda's case without pay, pending the results of their criminal cases.

Westchester D.A. Janet DiFiore professed to be "very disappointed" to hear that officers anonymously admitted to covering for off-duty cops who drive while intoxicated, although she stated that she was "not surprised." DiFiore also claimed to be looking to strengthen the penalties for refusal to take a chemical test, however, this would certainly seem to be beyond her purview as this is a provision of New York's Vehicle & Traffic Law which would have to be amended by the New York State Legislature, not a local D.A.

Westchester County's first arrest under Leandra's Law was made in mid-December when William Ordonez was charged with two felony counts of DWI, including having a BAC of 0.20, more than twice the legal limit of 0.08, and a misdemeanor charge of driving without a license. Ordonez apparently had three children, ages 5,7 and 11, in the vehicle at the time of the arrest.

On December 28, John B. Dickson of Scottsdale, Arizona was charged with felony DWI under Leandra's Law when he was arrested in Somers with two children, ages 6 and 8 in the vehicle. Dickson was also charged with two misdemeanor counts of endangering the welfare of a child.

Putnam County's first arrest under Leandra's Law was more dramatic. Connecticut resident Joann Celli traveled to the Putnam County Sheriff's Department to discuss a complaint when she was allegedly observed to be intoxicated and arrested for felony DWI. Celli was charged with New York felony DWI for apparently driving 40 miles with her 10 and 11 year old children in the vehicle.

In addition to the tragic case of Leandra Rosado, the new law was also in large part motivated by the horrific accident on the Taconic Parkway last July in which Diane Schuler drove while intoxicated and high on marijuana, killing 8 people, including her three young nieces, two year old daughter and three men in the vehicle her car struck.

On December 27, 2009, off-duty Westchester County police officer Joseph Kraus allegedly ran a red light while operating his Chevy pickup truck and struck a Scarsdale police car while intoxicated at the intersection of East Parkway and Popham Road in Scarsdale. Kraus admitted to having consumed 2-3 beers but refused to take a breathalyzer. Kraus was charged with misdemeanor DWI. Emergency personnel had to cut open the police cruiser, which was apparently demolished, to free Officer Jessica Knatz, who suffered facial and back injuries in the accident.

Ironically, 35 year old Officer Kraus had recently taken part in a WABC TV program which detailed the dangers of distracted driving as part of Westchester County's "Crash Reduction Unit." Kraus is suspended with pay pending a county police investigation.

If convicted under Leandra's Law, the motorist will have to install an interlock ignition system in the car, so that unless the driver is alcohol free, the car will not start. On August 15, 2010, the ignition interlock penalty will be assessed in all New York felony DWI or misdemeanor convictions. The interlock system costs approximately $100 to install and three dollars a day to use. The driver is required to pay these costs as part of his or her sentence.

The New York State Department of Motor Vehicles (NYSDMV) notes that there were 9,202 alcohol related accidents in 2008, with 488 children under 18 injured or killed. There were 5,970 felony DWI arrests in New York last year and over 46,000 misdemeanor DWI charges. The conviction rate was about 95% in these cases.

New York is now in the forefront of tough DWI enforcement around the country, especially if the motorist has young children in the car. The New York State Senate bill co-sponsor Martin Dilan noted that 59 children were killed or injured while passengers in a vehicle in a New York DWI accident in 2008. Governor Paterson stated: "Today, we are sending an important message to those who consider getting behind the wheel with a child while intoxicated. Today, we say enough."

We will report on the effect of Leandra's Law this spring when we have had a few months to see how local judges and district attorneys are enforcing its' provisions.

Interlocks have been used for many years in NY Felony DWI cases, by which the motorists must blow into the device with alcohol free breath before their cars will start. According to the Westchester County Probation Department, they presently monitor 162 drivers required to use ignition interlocks. Westchester oversees over 1,700 motorists on probation for New York DWI, with 602 convicted of felonies. To prevent a drunk driver from utilizing a sober person to blow into their device, many agencies now use ignition interlocks which require the motorist to continue to blow into the interlocks at regular intervals. If the device does not get a non-alcohol breath, the car's horn will blow and the lights on the vehicle will flash to alert authorities.

An ignition interlock costs $75.00 to install and $75.00 per month for maintenance fees. It is possible to get false readings if someone recently used mouthwash, for example, but waiting 5 to 10 minutes is usually all that's needed to try the device again.

Initially, Mr. Amay was charged with Misdemeanor DWI and child endangerment. However, the Westchester District Attorney's Office is considering raising the Misdemeanor DWI to a Felony DWI pursuant to the new law. Mr. Amay is incarcerated in the Westchester County jail on $50,000 bail, and is due back in Ossining Village Court on December 1, 2009. If Mr. Amay's DWI charge is raised to a felony DWI, the case will automatically be transferred to the County Court as Village Courts do not have jurisdiction in felony cases.

As the result of this tragic accident, New York Governor David Paterson pushed "Leandra's Law", which would make it a felony to drive drunk with a child in the vehicle. Lenny Rosado, Leandra's father, and MADD (Mothers Against Drunk Driving) pushed for the bill's passage. The New York State Senate was ready to approve the bill this past week, but apparently, Assembly Democrats, led by Speaker Sheldon Silver, sought to weaken the bill by making the penalty a misdemeanor rather than a felony unless the driver's BAC (Blood Alcohol Content) is at least 0.18, more than twice the legal limit of 0.08.

Silver is sure to face some opposition and criticism for his attempt to weaken Leandra's Law. In response, Governor Paterson suggested that the BAC for a violation of the law be increased so that a BAC of 0.13 could result in a felony, halfway between the legal limit and the level in the bill. MADD is also seeking to have a mandatory requirement that anyone convicted of a New York DWI be required to install ignition interlocks in their vehicle.

New York is now the third state in the United States to make it a felony to drive while intoxicated with a child in the car, and the 12th state to require ignition interlocks for motorists convicted of drunk driving.

A conditional license allows you to drive to and from work, to and from school, to and from necessary medical treatment, and to and from treatment or programs that are required as part of your sentence with the Court, such as attending a MADD Victim's impact panel or the drinking driver program. To get a conditional license, you must enroll in and complete the DDP (drinking driver program) a seven week class sponsored by the Department of Motor Vehicles (NYSDMV). If you have taken the DDP within the last five years, you are not eligible to attend the DDP and will not be able to obtain your conditional license.

It generally takes approximately 20 days from the sentence date in your criminal case until you can enroll in the DDP, due to the delay between the local Court forwarding your paperwork to the DMV to establish your eligibility for the DDP. For this reason, as long as you have not refused a breath test, the local judge at your attorney's request will issue what is known as a "Twenty Day Stay" of the enforcement of your license revocation, and you will then be eligible to begin driving while awaiting your entry into the DDP and receipt of your conditional license. However, if you have refused a breath test, you are not eligible to get a 20 day stay and will have to wait to drive until you enter the DDP.

Westchester County police have made 498 DWI arrests this year, fast approaching the 588 arrests made in 2008. Opponents of the bill were in favor of the installation of an ignition interlock device, which the DWI convicted motorists would be required to blow into before starting his or her vehicle. If the device detects alcohol, the driver is not able to start the car. Clearly, there is a big difference between a driver who is convicted of a Westchester County DWI for the first time, and who has not injured anyone or been involved in a property damage accident, as opposed to a recidivist who has injured others or damaged property. Without doubt, the Westchester lawmakers were influenced by the tragic Schuler accident this past July, in which 8 people lost their lives when Diane Schuler drove her car the wrong way on the Taconic Parkway, killing herself, her daughter, three nieces, and three men in the car she struck. Ironically, the new law would not have applied in the Schuler accident as it occurred on a state operated road.

The forfeiture law will have a "hardship relief" provision, in which the defendant can avoid the forfeiture penalty if he or she can prove that confiscation would create substantial burdens on the defendant's ability to travel to and from work, school, or medical treatment. This "hardship relief, if granted, would still require the installation of an ignition interlock in the car.

Over the last several years, there has been a continuous increase in Westchester County DWI arrests.The New York State Division of Criminal Justice Services reports that adult arrests for felony or misdemeanor DWI went from 2,337 in 2002 to 2,650 in 2007. The Westchester County Department of Probation notes that those convicted of DWI offenses account for 23% of their cases.

On September 17th, police arrested Henry Garcia, a 19 year old Ossining resident, after he drove 7 miles south in the northbound lanes of the Taconic Parkway from the Underhill exit to Mount Pleasant. Garcia apparently had a BAC of 0.27, and is being held at the Westchester County jail. Garcia was also charged with first degree reckless endangerment, reckless endangerment and two New York driving while intoxicated offenses. The New York aggravated DWI charge is made when the BAC is .18 and above.

The substantial charges against Pena and Garcia come amid complaints by the victims' families in the tragic Schuler accident this past July (In which eight people were killed and Schuler's BAC was found to be .19) that the Westchester D.A., Janet DiFiore, failed to file criminal charges against the husband of Diane Schuler for knowingly allowing his wife to drive in an intoxicated condition.

The Walk & Turn involves walking along a designated straight line for 9 steps heel to toe, turning in a manner directed by the officer, and then walking back along the same line for 9 steps. Horizontal Gaze Nystagmus is a test in which the motorist is required to follow with their eyes a pen or pointer (known as the stimulus) as the officer moves it back and forth to determine if there is distinct jerking of the eyes (nystagmus), rather than what is known as "smooth pursuit" of the stimulus. The One Leg Stand has the driver stand with legs together and arms at their sides, then lifting one leg straight out, six inches off the ground, for a count of 30 seconds.

Numerous clues which the officer will then check for to determine if the motorist has passed these tests (on the Walk and Turn or One Leg Stand) are an inability to keep balance, using arms to balance, swaying, failing to count, simply failing to start when directed or not following instructions. Obviously these tests, although called "Standardized", are highly subjective, as whether the person passes or fails is determined solely by an officer looking to substantiate his arrest. Further, there are numerous factors which could affect the results, including, to name a few, medical conditions that the driver might suffer from--epilepsy, vertigo, inner ear disorders; their physical condition, (such as being overweight or elderly), the side effects of medications or how much sleep the driver had the night before.

It is generally recognized that a 150 pound man will be legally intoxicated after 3 drinks, with a BAC of approximately .087, whereas, with a woman of similar weight, after three drinks, her BAC would be about .10. However, if the woman only weighed 100 pounds, she could easily become legally intoxicated (.08 or above) after as little as two drinks. Other factors, such as how much one has eaten, when they ate, what was consumed, and drinking habits do affect these approximate alcohol absorption calculations. Women are more likely to suffer from alcoholic liver disease, damage to the heart and brain damage from the long term effects of alcohol consumption.

Under New York State law, a driver can be charged with driving while intoxicated with a BAC of .08 and above, and charged with New York aggravated DWI with a blood alcohol content of .18 and above. If the BAC is less than .08, in the region of .05 to .07, a driver can only be charged with New York DWAI, or driving while ability impaired, which is a traffic infraction, not a crime.

Healthy people will metabolize alcohol at a fairly consistent rate. Generally, a person will eliminate one average drink of alcohol (0.5 oz.) per hour. Alcoholics frequently metabolize alcohol at a significantly higher rate than an average social drinker.

The less you weigh, the more you will be affected by alcohol. BAC (blood alcohol concentration) is the total alcohol in the body divided by body water. When you are arrested for a New York drunk driving offense, the amount of drinks you had is not s important as how much alcohol was in the drinks—thus, two glasses of whiskey could cause greater intoxication than several 12 oz. glasses of beer.

Drinks such as a Manhattan (1.15 oz.) or a martini (1 oz.) have much more alcohol than a 5 oz. glass of table wine (0.55 oz.) or a 12 oz. beer (0.54 oz.) The greatest alcohol content is found in Tequila (45% -50%) and rum, gin or vodka (40%). Beer, on the other hand, has between 3.2% and 4% alcohol content.

In 2008, according to the National Highway Traffic Safety Administration (NHTSA), there were close to 13,000 traffic fatalities, and approximately 40% of those deaths were attributed to accidents with a drunk driver. Closer to home, there were 3,100 Westchester County DWI arrests last year, and approximately 1,100 Rockland County DWI arrests in 2008.

The New York State Department of Motor Vehicles (NYSDMV) has indicated that driving under the influence of alcohol and or drugs increases in the late summer, which is the reason for the enhanced efforts to arrest drunk drivers with more checkpoints throughout the day, rather than only at night.