New York DWI Lawyer Blog

According to a study reported by Ken Valenti in The Journal News this week, arrests for driving while ability impaired by drugs (DWAID) is a prevalent problem in Westchester, Rockland and Putnam Counties, and more drivers were arrested on this charge in 2011 than ten years ago, despite increased public awareness. The report determined that were 145 DWAID arrests in 2001 in the three county region, compared with 261 last year.

DWAID can result in the same penalties as if the driver is accused of a DWI, including a misdemeanor on the first charge, and a felony on the same charge within 10 years, or a felony on the first DWAID if there are children under the age of 16 in the vehicle (Leandra's Law). DWAID is more difficult to detect than a DWI, as it is not as easy to determine a this offense by laboratory results, which would require a urine sample or blood test, as it is to conduct a chemical test of the motorist’s breath, which can be performed at the precinct. Additionally, DWI’s are often charged based on the officer’s common law observations of the driver, including slurred speech, alcohol on their breath, or bloodshot eyes, much easier to determine from alcohol than drugs.

Across New York State, many police officers are now being trained as “DRE”’s, or “Drug Recognition Expert[s].” There are 250 DRE officers in New York, which requires 200 hours of training in detecting the signs and symptoms of drug usage. Driving while impaired by drugs has become a bigger problem, according to the Westchester Department of Public Safety, due to increased prescription drug usage and abuse, as well as the use of illicit drugs such as heroin and cocaine.

The problem may be worse than reported, since if the arresting officer determines that a driver is intoxicated by means of a chemical test result or field sobriety test, there is little incentive to also check whether the motorist is impaired by drugs. Countywide, Westchester police officers arrested 157 drivers for DWIAD in 2011, which was more than 40% of the overall impaired driving arrests. In 2011, Westchester had 196 DWAID and 1,628 DWI arrests, Putnam County arrested 15 for DWAID and 428 for DWI, and in Rockland County, there were 50 DWAID arrests and 640 for alcohol related impairment. In Westchester County, there was a large increase in DWAID arrests from 2001, when there were 122, (more than a 60% increase to 196 in 2011), but there was a decrease in DWI arrests from ten years ago, from 2,049 in 2001 to 1,628 in 2011.

Continue reading "DWAID Cases Increasing In Hudson Valley" »

When you are stopped for a New York DWI, the investigating officer is required to make an initial determination whether your driving is impaired by alcohol, drugs or a combination of the two. The initial basis for the traffic stop is premised on whether the officer has a reasonable suspicion that the motorist is impaired due to erratic driving, a specific traffic infraction, or observations that the driver is slumped in his or her seat, for example.

The officer will then observe the manner in which you stop your vehicle after you are notified to pull over—was it jerky, a short stop, or did it take you a long time to come to a stop? Other observations at this time might include how far you stopped from a curb, striking the curb, or moving to the side of the road in a haphazard fashion. When the officer requests that you exit your vehicle, there are three generally recognized standardized field sobriety tests (SFST) which you will be asked to take. Field sobriety tests are in essence divided attention tests, meaning that they are designed to determine if you can follow directions as well as perform tasks which require balance, coordination, and clear vision, among other things.

The three standardized field sobriety tests are the walk and turn, the one leg stand, and the horizontal gaze nystagmus. The theory is that these tests, either individually or in conjunction with each other, will correctly determine which drivers are impaired by alcohol or drugs. According to the National Highway Traffic Safety Administration (NHTSA), the HGN correctly determines in 77% of cases if a driver has a BAC of 0.10% or above, the walk and turn is accurate in 68% of cases, and the one leg stand correctly predicts 65% of intoxicated drivers.

In this article, we will focus on the walk and turn. The two stages of this divided attention test are the instructions, followed by the walking section. For the instructions, the driver must stand with his/her feet in a heel to toe position, with their arms at their sides, and listen to the instructions. The person must keep his/her attention divided between remembering the instructions and keeping their balance and staying on the line.

The instructions are to walk 9 steps heel to toe on a designated straight line, without using the arms for balance, and counting the steps aloud, and then use the back foot to make small steps to turn around while keeping the front foot on the line, and then walk 9 steps along that same line, again counting the steps and not using the arms for balance. The walking segment combines the balancing of walking heel to toe on a straight line and turning on the back foot, along with the memory requirements of remembering how many steps they took and how to perform the turn.

To be blunt, even people with good balance who have no alcohol in their system could have difficulties with the walk and turn test, particularly if they have physical disabilities, or have vertigo or other inner ear problems. Additionally, although the officer is required to conduct the test on a flat, dry surface, away from the cruiser’s flashing lights, and away from traffic, which could be distracting, frequently these requirements are disregarded by the officer for the sake of expediency.

The key to passing this test (which almost never occurs based upon the reports of these tests prepared by local police officers) is that the person must avoid the following:

Not being able to maintain balance while listening to the instructions;
Starting too soon;
Stopping while walking the nine steps;
Stepping off the line while walking;
Not maintaining heel to toe;
Using arms to balance;
Losing balance on the turn or doing the turn wrong;
Taking an incorrect amount of steps.

If the person falls off the line 3 or more times, loses his balance, can’t remain on the line, or can’t compete the test for any other reason, they will fail the walk and turn.

Continue reading "New York DWI--The Walk And Turn" »

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" »

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" »

On January 30, 12011, a 45 year old Ossining man became the first allegedly drunk driver in Westchester County to be indicted for violating the new ignition interlock provisions of Leandra's Law, which went into effect last August. Leandra's Law requires, among other things, that if a motorist is convicted or pleads guilty to DWI charges, he or she must install and maintain an ignition interlock device in their car for a minimum of 6 months. (In my experience, most Courts have been requiring that the device remain in the vehicle for one year). Additionally, the law mandates that if a driver is charged with driving while intoxicated with a child under the age of 16 in the vehicle, he must be charged with a felony.

In this case, Abel Pinto was arraigned in White Plains arising out of a police pursuit on January 30 on Route 9 in Cortlandt. Police arrested Mr. Pinto and charged him with DWI, aggravated DWI, unlicensed operation of a motor vehicle, speeding, and unsafe lane change infractions, and in a first, for operating a motor vehicle without a Court-ordered ignition interlock device, which is a misdemeanor. Apparently, Mr. Pinto had two previous convictions for DWI in the last 10 years, which mandated that he be changed with felony DWI.

Pinto is to return to Court on May 3, 2011. He could be sentenced to up to 7 years in state prison if convicted of the felony charges.

Continue reading "New York DWI--First Ignition Interlock Indictment In Westchester County" »

Putnam County District Attorney Adam Levy has installed a vigorous anti-DWI program since his tenure began in 2008. Levy, a former criminal defense lawyer, has worked with local police agencies in adopting a vehicle forfeiture program in felony DWI cases. Since implementation of the seizure plan in January of 2010, 29 vehicles have been taken from owners convicted of felony DWI. The vehicles are then sold at auction, with the proceeds split between local police agencies, the state Office of Alcoholism and Substance Abuse (OASAS), and Putnam County.

Putnam County spent $30,000 buying a lot in Carmel where seized vehicles are stored. Other counties, including Westchester County and Rockland County, are installing the same forfeiture program. In Westchester County, no cars have yet been seized because the law is new and no convictions have apparently been obtained under the forfeiture provisions, which only involve arrests and convictions on county owned roads.

Putnam County had 553 DWI arrests in 2008, a significant increase from the 392 in 2007. Putnam hired an assistant district attorney with the specific role of supervising the forfeiture program. There is a financial hardship exception in which vehicles can be returned, such as in cases where the family has only one vehicle and other family members would face job loss or be unable to care for a relative with health problems unless they had access to the car. However, there will be a specific stipulation that the convicted motorist will be forbidden from operating the vehicle.

Continue reading "Putnam County Felony DWI Results In Vehicle Forfeiture" »

According to a federal report in the National Survey on Drug Use and Health, almost one in eight drivers 16 years of age or older drove while intoxicated in the last year. The study indicates that an estimated 30.6 million drivers were under the influence of alcohol, and 10.1 million admitted to being under the influence of drugs. The estimates were based on surveys of 213,350 motorists by the Substance Abuse and Mental Health Services Administration.

The survey also determined that DWI rates between 2006-2009 and 2002 through 2005 dropped from 14.6% to 13.2%. Comparing the same two time periods, DWAID (driving while impaired by drugs) fell from 4.8% to 4.3%.

Continue reading "Nearly 1 in 8 Drove While Intoxicated According To Fed Report" »

Last week, we posted on initial blog regarding the new ignition interlock requirements pursuant to Leandra's Law, which went into effect on August 15, 2010. This article will discuss additional requirements and elements of the law. When you are sentenced to either a misdemeanor DWI or New York felony DWI, you must have the ignition interlock device (IID) installed within 10 days of your sentence. Once the IID is installed, you must report the installation within three days to the Court.

When you are ordered to install an IID, the Court will require that any vehicle you have access to (own or operate) has the device installed. Your conditional driver's license, if you are eligible for one, will note that you are required to have an IID in your car. Thus, if you attempt to rent a car, the rental car facility must only rent you a vehicle equipped with an IID. If they do not do so, both you and the rental car ownership can be subject to a potential misdemeanor charge.

The device must be serviced on regular intervals as directed by the probation department, in order for information to be downloaded and provided to the sentencing Court, District Attorney's office and county probation department. If you have one or more missed or failed start up tests or one or more failed or missed rolling tests, this can be the basis for re-sentencing by the Court. If you or someone else attempts to tamper with the device, disable the device, or if you have someone else blow for you, this can lead to a misdemeanor charge.

There is also a "lockout mode", which is triggered if you fail or miss a start up test, re-test or fail or miss a rolling test or re-test. If you do not re-take the test and pass it within 5 days the car will go into lockout mode. When this happens, the only way the vehicle can be started again is to take it back to the installer and have the device reset.

Continue reading "New Ignition Interlock Law Now In Effect--Part 2" »

Effective August 15, 2010, there are new Ignition Interlock Device (IID) rules in effect for all New York DWI or Aggravated DWI cases. The rules apply to any motorist charged after December 18, 2009, and convicted or pleading guilty after August 15, 2010. The new law does not apply to convictions of New York driving while ability impaired (DWAI), which is a traffic infraction, but to all misdemeanor and felony DWI convictions.

The IID's must be installed in all vehicles that the motorist owns or operates. This language is critical, as in many cases, the law will require that the person convicted of the felony or misdemeanor DWI install the IID in more than one vehicle, with family members such as spouses or grown children also having to utilize the IID in vehicles that they share with the driver convicted of the DWI.

The (IID) must remain in the vehicle for at least 6 months. It must be installed by a County approved installer. There are fees for both the installation and monthly maintenance of the IID, which must be paid by the driver. If you can prove, through a lengthy "Financial Disclosure Report", that you are unable to pay for the IID, the County will pay for all costs involved.

The IID operates by requiring that a motorist blow into a ignition interlock device (IID) in order to start the ignition to the vehicle. If the IID detects a blood alcohol concentration of 0.25% or greater, the vehicle will not start. If there is a failed start up test, the driver is required to do a re-test within a few minutes. If the re-test is failed or missed, this violation will be recorded on the device and the information will be provided to the county probation department, the sentencing Court and the District Attorney's Office.

Once the vehicle is started, the driver will be required to perform a re-test on regular intervals of approximately 15 to 30 minutes. If the test is failed, a "rolling re-test" must be passed within 3 minutes. If there a failed or missed rolling re-test, there will be a violation with the information being reported to the three entities described above.

In our next installment, we will discuss some potential violations and other related information about the IID.

Continue reading "New Ignition Interlock Law Now In Effect--Part 1" »

When charged with a New York drunk driving offense, under the New York Vehicle & Traffic Law your license will be automatically suspended at your first Court appearance under the doctrine "suspension pending prosecution." In essence, since a license is a privilege, the Courts reverse the principle of innocent until proven guilty, and your driver's license (or driving privileges in New York for out of state residents) is suspended at the arraignment regardless of the fact that you may win your case. From the date of the arraignment until the conclusion of the case, you will have no driving privileges whatsoever unless a hardship license is granted.

In order to obtain a hardship privilege, there are several factors which must be met to determine if you are eligible. Among these factors, you must not have refused to take a chemical test such as a breathalyzer, and you are not eligible if you have had a previous drunk driving conviction or plea within the last 5 years. To obtain a hardship license, you must testify at a "Hardship Hearing", which is conducted by the judge within three days of your arraignment, but frequently, on the same day as the arraignment. Additionally, your testimony must be confirmed by a family member, friend or witness who can testify that without your driver's license during the pendency of the case, you would suffer not just hardship, but "extreme hardship."

At the hardship hearing, you must prove that you have no viable alternative means of getting to work other than driving yourself. Thus, the proof must be that public transportation or taxis are not available to you, or that financially, you could not afford to pay the cost of taxis, buses or trains based upon your salary or earnings. Thus, documentation proving what you earn, such as pay stubs or W2's, are often utilized as evidence. Further, the additional witness must confirm that there are no family members, friends or co-workers that could drive you to work while the case is proceeding.

Hardship licenses are for a limited purpose--to allow you to drive to and from work, and only during the days and times permitted by the Court. If you work from Monday to Friday, you will not be permitted to use your hardship privilege on a weekend regardless of the reason. Hardship licenses are not available to salespeople or, for example, people that drive for a living and are required to make multiple stops--UPS drivers, truck drivers, or delivery people. In sum, the privilege only permits driving from home to work and back home, nothing more.

Continue reading "What Is A Hardship License And Are You Eligible?" »

In an eye opening article in the January 17, 2010 Journal News, several officers acknowledged off the record what many suspected for a long time: When off-duty police are stopped for Westchester DWI or traffic infractions, they are frequently helped out by other officers who get them a ride home and make sure their car is put in a safe place. The protection of intoxicated fellow officers is off the table when an accident is involved, since as one cop noted: That's a situation that you can't hide...I'm not going to risk my career in a case like that." The officers who are stopped for DWI routinely refuse to take a breathalyzer, knowing that this will can significantly hamper the D.A.'s ability to prove a DWI case, despite the fact that the refusal carries with it a one year revocation of their operating privileges if proven at the DMV "Refusal Hearing."

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.

Continue reading "Westchester County DWI--Police "Protect Their Own"" »

Under the recently enacted Leandra's Law, which went into effect in December, 2009, motorists will now be charged with a felony if accused of a New York DWI with children under the age of 16 in the car. The law was named for Leandra Rosado, an 11 year old girl who was killed in a rollover DWI accident in October of 2009 while a passenger in car of her friend's mother.

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.

Continue reading "Westchester County DWI--First Cases Under Leandra's Law" »

Two motorists who drove the wrong way on the Taconic Parkway have now been indicted on numerous charges on November 2nd. Gregorio Pena, a 44 year old resident of Manhattan and livery driver, was indicted on charges of first degree reckless endangerment, a felony, aggravated DWI, New York DWI, and reckless driving, all misdemeanors. Pena was charged with driving his taxi northbound in the southbound lanes of the Taconic in Yorktown on September 9, with a blood alcohol content (BAC) of .20, more than twice the legal limit of 0.08 %.

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.

Continue reading "Westchester County DWI--Two Wrong Way Drivers Indicted" »

Until Labor Day, Westchester, Rockland and Putnam County police are stepping up their efforts to make New York drunk driving arrests as part of the national "Drunk Driving. Over The Limit. Under Arrest" campaign. There will be extra checkpoints set up throughout the region, and there will be an increased emphasis on drunk driving arrests during the morning and afternoon hours, rather than late at night when motorists are expecting the checkpoints.

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.

Continue reading "New York Drunk Driving-Over The Limit-Under Arrest Program " »

The tragic July 26 accident in which Diane Schuler drove the wrong way on the Taconic Parkway, killing eight, (with a BAC of well over twice the .08 legal limit and THC in her system) continues a trend of Westchester DWI cases with mothers driving while intoxicated with their kids in the car. It is well known by now that the Schuler tragedy was the worst car accident in Westchester in 75 years, but what has not been reported is just how frequently mothers are getting arrested for Westchester County drunk driving over the last three years. These include Jeannine Chrysogelos, who was recently arrested for drunk driving and child endangerment when she was found passed out in her driveway after picking her kids up from school, and Deborah Havir, who left the scene of a one car crash with her three children in the car.

Two nearby Putnam County DWI cases include that of Susan Rogge, of Mahopac, who drove off the road while returning from a carnival with her 13 year old daughter and four of her friends in the car. The daughter called the police from a cellphone and Rogge was arrested. Suzanne Kristofferson of Putnam Valley was arrested driving home from a party with five kids in the car. Both cases are presently pending in local Putnam courts. The most tragic case in recent memory prior to the horrible Schuler accident involved Ann Marie Ciarcia, 47, who drove the wrong way on the Saw Mill River Parkway in Dobbs Ferry in September of 2006 with her 15 year old daughter and the daughter's 16 year old friend Emily Cornish in the car. Ciarcia's vehicle collided with a car proceeding in the other direction, and Ms. Cornish was killed in the accident. Ms. Ciarcia is serving a 16 month sentence for her conviction on Westchester manslaughter, vehicular assault and DWI charges.

Interestingly, FBI statistics show that nationwide, between 1998 and 2007, arrests of women for DWI or DWAID (driving while under the influence of drugs) have increased 28.8 %, while arrests of men have dropped 7.8 % during this 9 year span. But even with these dramatic statistical differences, it is very hard to fathom how someone can get in their vehicle and drive while intoxicated, risking the lives of their children and relatives. The attorney for Ms. Schuler's husband has tried to posit other theories for her fatal wrong way driving, including a possible stroke, low blood sugar complications from diabetes, or problems from an abscessed tooth which she refused to get treated. However, none of these explanations account for a blood alcohol level of .19, (putting her in the class of aggravated DWI) 6 grams of undigested alcohol in her stomach and THC, the active ingredient in marijuana being found in her bloodstream. With civil suits likely to ensue in this sad case, we will undoubtedly be getting much more detailed toxicology results in the near future.

Continue reading "New York DWI-Schuler Case Continues Worrisome Trend" »

When convicted of a New York drunk driving charge such as Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI), one of the most important issues for a client is maintaining their driving privileges to keep their jobs and limit disruption of their lifestyle. After you have either pled guilty or been convicted of a New York DWI or DWAI, if you have not had a drunk driving charge within the last five years (the 5 years is measured between your last conviction and the recent arrest), you should be eligible to obtain your conditional license by attending what is known as the "DDP" or Drinking Driver Program.

We have written about the DDP in a recent post entitled "New York DWI Terms-Part 2". If you successfully complete the 7 week DDP, you will receive your conditional license, which permits you to drive:

1. To and from work;
2. To and from an accredited educational institution;
3. To and from any treatment programs, either DDP or other treatment mandated by the Court or DDP;
4. To and from day care or other facilities taking care of your children;
5. To and from medical or emergency treatment for you or your family members.

The conditional license will continue until you are eligible to get your license reinstated from either the DWI revocation or DWAI suspension, unless you do not meet the conditions of your sentence, in which case your conditional license can be terminated.

Continue reading "New York DWI--What Is A Conditional Driver's License?" »

If you are pulled over for a New York DWI or Driving While Ability Impaired by Drugs (DWAID), you will be asked by the arresting officer to take a chemical test of your breath or blood, commonly referred to as a 'Breathalyzer." If you refuse to take this test, at your first Court date, known as your arraignment, you will be ordered to appear for a "Refusal Hearing."

The Refusal Hearing is held in the Department of Motor Vehicles before an Administrative Judge. In Westchester County, where our office is located, the Refusal Hearings are held in Yonkers. The Refusal Hearing is a civil proceeding separate and apart from the criminal charges against you for the DWI, DWAID, or DWAI (Driving While Ability Impaired). The arresting officer testifies before the administrative judge as to the basis for the refusal, and your attorney has the opportunity to cross examine the officer as to the alleged refusal and the circumstances of the arrest before the conclusion of the criminal case in the local Court, which can lead to useful evidence if you intend to fight the criminal case instead of seeking a plea bargain. It is frequently a good idea to subpoena the officer since they will sometimes not appear and seek to offer their report as proof of the refusal. You will also have the opportunity to testify as to the circumstances of your arrest and the alleged refusal.

The downside of New York Refusal Hearings is that the DMV judges tend to be pro-prosecution. If there is a reasonable basis to believe that you refused to take the chemical test of your breath or blood, despite being provided warnings by the officer as to the penalties for failing to take the test, you will be found guilty and your license to operate a motor vehicle in the State of New York will be revoked for one year.

Continue reading "New York DWI---Basics Of A Refusal Hearing" »

New York State Senator Charles Fuschillo Jr. is about to introduce legislation in which all drivers convicted of New York DWI would be required to install ignition interlocks in their cars. Presently, Westchester County and six other New York counties give judges the option to require ignition interlocks in cases of multiple DWI. New York began its ignition interlock program 20 years ago. Advocates such as MADD (Mothers Against Drunk Driving) argue that unless the interlocks are mandatory, use is low. A spokesperson for MADD claims that ignition interlocks while those convicted of DWI are on probation reduces repeat offenses by an average of 64%. According to the federal Centers for Disease Control & Prevention, each day, 36 people die in car crashes with drunk drivers. In New York, there were 384 drunk driving deaths and more than 7,200 injuries in 2007.

An ignition interlock is approximately the size of a cell phone and is installed into the starting circuit of a car. The driver must blow into the interlock, and if he or she has been drinking, the car will not start. Interlocks can also be set up for "running retests" requiring a driver to provide breath tests at regular intervals. This way, if a sober person started the car, and the driver fails the retest, the horn will sound and the car's lights will flash, alerting police officers in the vicinity.

It is unclear if the legislation Mr. Fuschillo is promoting has the votes to be instituted, as he is a Republican, now a minority party in the state Senate for the first time in many decades.

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Arrests for Putnam County DWI's have increased by a stunning 35% in 2008, and Putnam's lead prosecutor, District Attorney Adam Levy has stated he is ready to take action. There were 633 Putnam County drunk driving arrests in 2008, up from 469 in 2007, and 414 in 2006. In contrast, Westchester County DWI arrests have increased to a smaller extent over the last three years--the increase between 2006 and 2007 was from 2,515 to 2,650. (Numbers for 2008 were not available). In Rockland County, DWI arrests actually decreased from 1,215 in 2007 to 1,082 in 2008.

Mr. Levy has proposed an alcohol awareness program for first time DWI offenders arrested in cases where there has been no personal injury or property damage. The program would involve 35 hours of community service and attendance at a three hour class which costs $250 to attend. The money Putnam receives from course attendees would assist in paying the rising costs of DWI detection and prosecution, according to Levy. Out of state drivers arrested for New York drunk driving would have to take the course and perform the community service in Putnam County. One group that might object to the program would be New York State and alcohol treatment counselors, who would lose many of their clients to the County sponsored program. The proposal will be submitted to the Putnam County Legislature's Health Committee on March 17.

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If you are arrested for a New York drunk driving charge, or for refusing a chemical test, in addition to any criminal penalties you will be assessed, you will also have to pay what is known as the "Driver Responsibility Assessment." Beginning in November of 2004, The New York State Department of Motor Vehicles instituted the "Driver Responsibility Program."

Under this program, if you are convicted of a New York DWI or refusing to take a breathalyzer test, you will be required to pay fines totaling $750 over a three year period. These fines can be paid $250 each year for three years, all at once, or you may pay the initial fine of $250.00 and then the remainder at any time within the three years. If you do not pay the assessment, the DMV will suspend your driver's license, learner's permit, or in the case of out of state drivers, your privileges to operate a vehicle in New York State.

The Driver Responsibility Assessment is also imposed on drivers who get 6 points or more on their license within an 18 month period for New York traffic violations. This assessment is a total of $300.00 for three years, which can be paid in $100.00 per year increments, all at once, or by paying $100.00 initially and then the remainder within the 2 following years. Each additional point above 6 points during the 18 months adds an extra $75.00 to the penalty.

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