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drunk drivingIf you were pulled over on suspicion of drinking and driving, and you refused to submit to a chemical test, you may face serious consequences. At the Law Office of Mark A. Siesel, our New York DWI defense team understands how to handle refusal hearings and protect your rights at every step of the way.

New York State’s Vehicle and Traffic Law requires any person who operates a motor vehicle to take a blood, breath, urine, or saliva test to help law enforcement determine the alcohol or drug content in the person’s blood. In other words, under New York’s “implied consent” law, a driver who is arrested for an alcohol-related offense must submit to a chemical test.

If you are pulled over for a DWI in New York, and you refuse to take a breathalyzer test or chemical test, you may be subject to a DWI refusal hearing. Put another way, you can refuse to take a breathalyzer test, but there will be consequences. If a driver refuses to submit to a chemical test, he or she must be given a specific refusal warning.

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A 56 year old school bus driver in the Lakeland School District in Northern Westchester County has been charged with felony DWI after an accident on May 11, 2015 in which the bus she was operating reportedly struck a telephone pole. Mary Coletti, of Cortlandt Manor, was transporting approximately 35 high school students to the Walter Panas High School at approximately 7:00 AM when the bus allegedly sideswiped a telephone pole on Red Mill Road, pursuant to information from the New York State Police, who investigated the accident.

When the police arrived, Ms. Coletti was asked to submit to a breathalyzer, which reportedly showed a blood alcohol content of 0.14%, significantly higher than the 0.08% the legal standard for what constitutes DWI in the state of New York. There are several additional implications which apply in this case that create more serious legal issues for Ms. Coletti. First, under Leandra’s Law, an operator who is charged with DWI with passengers under the age of 16 in the vehicle is automatically charged with a felony, and this felony charge will not be reduced pursuant to the policy of the Westchester County District Attorney’s Office. Presumably, some, if not all, of the passengers on the bus operated by Ms. Coletti were under the age of 16.

Ms. Coletti was arraigned in local Court in Cortlandt Manor, and entered a plea of not guilty. She was then transported to the Westchester County jail apparently due to the fact that she was not able to post the $1,000 bail. Because local courts such as the Cortlandt Town Court do not have jurisdiction over felony cases (these courts have jurisdiction only in misdemeanors or violations such as traffic tickets, for example), this case will ultimately have to be transferred to the Westchester County Court in White Plains. In the County Court, there will be several conferences between the Judge, the Westchester DA’s office and Ms. Coletti’s defense attorney, during which there will be discussions as to a possible plea, or if no agreement can be reached, a trial will be scheduled. Clearly, an important determination as to a potential plea will be whether any of the students were injured, and how many of the students were under the age of 16.

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When operating a motor vehicle in the state of New York, drivers give their acceptance to provide a sample of their blood, breath, urine or saliva if requested to do so during the course of a valid traffic stop for a violation of the Vehicle & Traffic Law. If you are stopped by a police officer for a lane violation, for example (swerving between two lanes) or operating the car erratically, the officer is likely to ask you if you have been drinking anything of an alcoholic nature. Regardless of your response to that question, the officer can then ask you to blow into a device known as an “Alco-sensor.” If you do and the reading is positive, the officer has probable cause to arrest you for Driving While Intoxicated.

What if you refuse to provide a breath, blood or urine sample? If you do so, you can still be arrested for DWI , based upon the officer’s observations of your walking, the color of your eyes, an odor of alcohol on your breath, or other “field Sobriety tests” which the officer can request that you perform, such as standing on one leg, or reciting the alphabet or counting backwards and forwards. However, in addition to the arrest for DWI, if you refuse to provide a breath or other chemical sample, you will now be charged with a “refusal to take a chemical test”, which is an administrative, not criminal infraction, with different but no less onerous implications.

A refusal to take a chemical test in Westchester County, for example, will result in a hearing at the Department of Motor Vehicles in Yonkers, within two weeks of the arraignment in the criminal case, in which the DWI case against you will be heard. The refusal hearing, which is generally held on a Monday or Wednesday afternoon, is conducted by the one administrative judge on staff in Yonkers, Walter Zulkowski. Generally, most people are represented by an attorney at these hearings, and for a very good reason. Although this is not a criminal proceeding, if you are found to have refused the chemical test, your license to operate a motor vehicle will be revoked for one year, and for 18 months if you have a commercial driver’s license. Obviously, for drivers of taxis, buses or trucks, a finding of a refusal to take a chemical test can be devastating as it is likely to lead to losing his or her employment for a year and a half, although there might be a possibility of maintaining some form of conditional license for non-commercial operation of a vehicle.

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On December 27, 2014, Thomas Palermo, a 41 year old software engineer at John Hopkins Hospital in Baltimore, was riding his bicycle on a road popular with bicyclists for its wide bike lanes and steep hills. At that same time, Heather Cook, a 58 year old Episcopalian bishop and one of the highest ranking officials in the Maryland Episcopal Diocese, was allegedly operating her motor vehicle with a blood alcohol level of 0.22% and texting while driving. The legal limit for intoxication in the State of Maryland, as in New York, is 0.08%.

Ms. Cook apparently veered to the right into the bike line while distracted by texting, and struck Mr. Palermo. According to the police, Bishop Cook then left the scene of the accident, offering no assistance to Mr. Palermo, and returned approximately 30 minutes later accompanied by another church official.

Mr. Palermo died a local hospital shortly after the accident, with survivors including his wife and two young children, ages 4 and 6. Ms. Cook was arrested and charged with criminally negligent manslaughter, driving while impaired and texting, and leaving the scene of a personal injury accident. She was then released on her own recognizance. Considering her significant position with the diocese, it is quite surprising that in 2010, Bishop Cook pled guilty to a DWI charge of operating her motor vehicle with a blood alcohol concentration (BAC) of 0.27%, well over three times the legal limit of intoxication. She was sentenced to probation and ordered to pay a fine of $300.00. Despite this fact, Cook was still elected to Bishop.

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If you ask the average motorist, he or she would probably tell you that the night of the year when there are the most drunk drivers would be either New Year’s Eve, Super Bowl Sunday or possibly Thanksgiving Eve. In fact, Halloween night is one of the worst nights annually for DWI’s, and more particularly, fatalities involving drivers who are above the legal limit of 0.08% and strike pedestrians. According to the National Highway Traffic Safety Administration, (NHTSA), 50% of fatal motor vehicle accidents on Halloween involve drivers who are intoxicated.

Intoxicated drivers generally account for approximately 30% of fatal car crashes in the U.S.   Between 2005 and 2012, 166 people died on Halloween as the result of accidents in which the driver was above the legal limit. Enforcement is more challenging in 2014 as drivers will notify other motorists of the location of sobriety checkpoints. The NHTSA recommends several safety measures on Halloween night, (which would apply for pedestrians who do any nighttime walking regardless of the night) including:

  1. Wearing reflective clothing;
  2. Using a flashlight;
  3. To the extent possible, crossing the street in a crosswalk;
  4. Walking on well-lit roads whenever available.

Under the New York State Vehicle & Traffic Law, a driver who is convicted of a non-felony DWI faces the following fines and sanctions;

  1. Fines with mandatory New York State surcharge totaling approximately $900.00;
  2. Mandatory screening and potential treatment for alcohol abuse;
  3. The requirement to install and maintain an ignition interlock in any vehicle he or she owns or has access to;
  4. Necessity to attend one session of the MADD Victim’s Impact Panel;
  5. The requirement to attend the seven week Drinking Driver’s Program sponsored by the New York State Department of Motor Vehicles at the conclusion of the case;
  6. Payment of the $750.00 “Driver’s Responsibility Assessment” from the DMV, which can be paid in three annual installments of $250.00 or in one payment. Failure to pay the DRA results in a license suspension;
  7. Revocation of the driver’s license (or driving privileges if the one charged has an out of state driver’s license) for 6 months on a first conviction.

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Michael Phelps, 29, the US. Olympic swimmer who holds 22 total medals (18 gold), has been charged for a second time with DWI and traffic infractions.  In the early morning hours of September 30, 2014, Mr. Phelps was observed by a Maryland Transit Authority officer near Baltimore allegedly travelling at 84 miles per hour in a 45 m.p.h. zone in his 2014 Land Rover.  Phelps apparently also changed lanes across double lines in the Fort McHenry Tunnel.

When the officer stopped Phelps’ vehicle, he requested that he take the standardized field sobriety tests, which Phelps was unable to successfully complete according to news reports.  After taking a breathalyzer, his blood alcohol concentration (BAC) was found to be 0.14%, well in excess of the 0.08% legal limit for DWI in Maryland.

Phelps faces three charges:  driving while under the influence of alcohol, “excessive speeding”, and crossing double lines in a tunnel.  Back in March of 2004, when Mr. Phelps was 19 years old, he was charged with DWI, DUI, and failing to obey a stop sign.  In the 2004 case, Phelps was able to get the charges reduced and was sentenced to a fine of $250.00, and given probation for 18 months. Continue reading

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Jojo John, the 36 year old operator of a 19 foot Stingray powerboat which collided with a barge just south of the Tappan Zee Bridge last July 26 around 10:45 PM, killing two and injuring three other people, pled guilty to two counts of vehicular manslaughter in the Rockland County Supreme Court on June 9, 2014 before Judge William Kelly. On July 26, 2013, John was at the helm of a speedboat on the Hudson River with friends Lindsey Stewart, 30, her fiancé Brian Bond, best man Mark Lennon, 30, and three other friends celebrating the upcoming nuptials of Mr. Bond and Ms. Stewart, which was scheduled for August of 2013. Ms. Stewart and Mr. Lennon were ejected from the boat when it struck a construction barge near the Tappan Zee Bridge and died at the scene. Mr. Bond suffered serious head and other injuries.

Mr. John was charged with operating the boat with a blood alcohol concentration (BAC) of 0.15%. The legal limit in the State of New York is 0.08%. John initially denied that he was intoxicated, and contended, as did the surviving passengers on the boat, that the barge was inadequately lit and that this was the reason for the fatal accident, not the purported intoxication of Mr. John.

Although the plea by Mr. John gives some closure to the case, the surviving passengers continue to believe that the poorly lit barge was a significant factor in the tragedy. A spokesman for the families, who are suing both Mr. John and the barge owners and operators in civil court for money damages, contended that the barge owners were warned prior to the accident that the lighting was insufficient and was “an accident waiting to happen.” However, Rockland County DA Thomas Zugibe stated on Monday that there was no evidence of any criminality on the part of the barge owners and that the accident was a result of John’s intoxication and the excessive speed of the boat. He also noted that John was an experienced boat pilot who knew the location of the barge from a previous trip up the Hudson River. Zugibe noted that the negligence claims could be litigated in civil court.

Mr. John faces up to two years in prison when he is sentenced on September 16. He has been free on $25,000 bail. With the guilty plea, this will strengthen the civil cases by the estates of Mr. Lennon and Ms. Stewart as well as the other three passengers who were injured in the accident, as the standard of proof in a criminal case, beyond a reasonable doubt, is much greater than that of a civil case, which is “preponderance of the evidence” (meaning that the evidence pointing to John’s culpability would have to be proven to be slightly more than 50%, already established by the criminal plea).

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On Friday, February 28, 2014, a Westchester County jury acquitted Kerry Kennedy, the 54 year old daughter of the late Robert F. Kennedy, of DWAID, or driving while ability impaired by drugs. Westchester prosecutors contended that on July 13, 2012, Kennedy had knowingly driven her Lexus SUV under the influence of Zolpidem, a generic form of Ambien, the sleep medication. The facts of the case, which to a great degree, were not contested, were that Ms. Kennedy was on her way to an Armonk gym from her house in Bedford, and had taken the Zolpidem shortly before leaving. She drove for five miles on local roads, entered I-684 where she sideswiped a tractor-trailer, and blew out a front tire.

Ms. Kennedy then drove on a bare rim onto Route 22, where police found her near the Armonk exit slumped over the steering wheel. She apparently failed field sobriety tests administered by the investigating officers and admitted that she might have taken an Ambien instead of her thyroid medication. Ms. Kennedy was arrested and charged with one misdemeanor count of driving while ability impaired by drugs. The case centered on whether Ms. Kennedy was aware as she was driving that she had taken the Zolpidem; she claimed that it was a mistake and she thought it was her thyroid pill, (which was similar in size and in a similar bottle, she contended) and prosecutors argued that she intentionally drove under the influence.

Generally speaking, with someone with no prior criminal record, those charged with misdemeanor impaired driving would plea bargain the charge to a non criminal traffic infraction, pay a approximately $600 fine, and agree to a 3 month suspension of their license with conditional privileges to drive to and from work, and for other essential reasons including to obtain medical treatment. Further, it is an extreme rarity for a case of this nature to ever reach the County Court, as the Court of original jurisdiction in this case was the North Castle Justice Court in Armonk.

However, due to the high profile nature of the case and the significant attendance by news organizations, family members, and the public, the case was moved to the ceremonial courtroom of the Westchester County Courthouse. The trial lasted four days and was highlighted by Kennedy’s testimony on Wednesday, in which she was asked many questions about her family history, work and character by her attorneys, which is also not typical in a misdemeanor impaired driving case. Judge Robert Neary permitted this questioning, and Ms. Kennedy denied that she ever knew that she had taken an Ambien before driving.

As prosecutors were never able to prove that Kennedy did know she had taken the Ambien, in my opinion, the verdict was a foregone conclusion, and the jury deliberated for only one hour over two days before rendering their not guilty verdict on February 28, 2014. Had Kennedy been convicted, she was facing up to one year in jail, (although with no criminal record, jail was highly unlikely and probation much more so) a revocation of her license for six months, and fines of approximately $1,000.

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On January 31, 2014, there was a fatal DWI accident in Tivoli, New York. Tragically, two Bard College students, 20 year old Evelina Brown of Seattle, and 19 year old Sarah McCausland of Winnetka, Illinois, were killed, and a third student, Selena Frandsen, suffered non life threatening injuries. The accident occurred at approximately 11:53 PM, when the three women were walking northbound on the shoulder of State Route 9G, (there is no sidewalk at the scene) just north of its intersection with Broadway. A 1987 Jeep Wrangler allegedly operated by Carol Boeck, 63, of Red Hook, struck them and then is alleged to have left the scene.

The only survivor of the accident, Ms. Frandsen, provided Dutchess County police with a description of the car, and Ms. Boeck was apprehended a short distance away from the accident scene. It has not been reported what Ms. Boeck’s BAC (blood alcohol concentration) was at the time of the accident, nor is there any information as to Ms. Boeck’s whereabouts prior to the crash. Under the New York State Vehicle & Traffic Law, a driver with a BAC of 0.08% or above is legally intoxicated. A level of 0.18% or above is grounds for a charge of aggravated DWI, which is a misdemeanor unless there has been a previous DWI charge in the last 10 years, upgrading the crime to a felony.

The Journal News reports that Boeck had a prior DWI conviction in 2005 based upon a review of records from the Dutchess County District Attorney’s Office. Under Leandra’s Law, a driver with a prior DWI within the last 10 years is automatically charged with a felony, and no plea bargains will be offered.

Ms. Boeck has been charged with first degree vehicular manslaughter and felony DWI as a result of the prior conviction. She was arrested and arraigned at the Village of Tivoli Court, and jailed on $50,000 cash bail, which she posted on February 1, 2014. The highest charge, the first degree vehicular manslaughter charge, is as a result of the fact that Ms. Boeck is alleged to have had a prior DWI conviction in 2005, and caused the death of more than one person. First degree vehicular manslaughter is a Class C felony under the Penal Law and can result in a jail term of up to fifteen years if Boeck is convicted. She is charged with two counts of first degree vehicular manslaughter for the deaths of Ms. Brown and Ms. McCausland.

Ms. Boeck is due back in Court on February 3, 2014. In addition to a jail sentence, it is likely that she will be facing a term of probation, a revocation of her driver’s license, mandatory attendance at a drinking driver program and victim’s impact panel, fines, the requirement that she install an ignition interlock device in her car whenever she is permitted to operate a motor vehicle again in the future, (which will be determined by the Dutchess County Probation Department in conjunction with the Court and DMV, and alcohol counseling sponsored by the County.

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New York Governor Cuomo announced last week that the State is strengthening the penalties for DWI convictions in Leandra’s Law cases, among other revisions. Leandra’s Law was named for 11 year old Leandra Rosado, who was killed in a crash when the driver taking her to a birthday party was intoxicated, lost control of her car, and the car flipped over. In December of 2009, Leandra’s Law went into effect, with two main provisions. First, the law made it a felony to drive while intoxicated with a child under the age of 16 in the vehicle. Second, any DWI conviction or plea of guilty would result in the requirement to install an ignition interlock device (IID) in any vehicle which the defendant owns or operates.

However, since the promulgation of Leandra’s Law four years ago, many of those convicted have been subverting the IID requirement by transferring ownership of their vehicle(s) to other drivers while serving their sentences.

Effective November 1, 2013, the law is amended as follows:

1. There are now more restrictions as to the circumstances in which a Court can waive the installation of an interlock device, and the defendant must now swear under oath that he or she does not own, operate, or have access to a motor vehicle and will not drive a car unless it is equipped with the device and he or she is otherwise eligible to drive.

2. The IID is now to be installed prior to sentencing, in contrast to the present law under which a defendant can operate a vehicle without the device until after sentencing.

3. The minimum period of interlock installation is increased from six months to one year (although in practice this is not a change with most Courts requiring one year presently).

4. It will now be a felony to get a DWI while driving with a conditional license, rather than a traffic infraction.

5. Youthful offenders will now be governed by the same IID requirement as adult drivers.

Since Leandra’s Law went into effect in 2009, more than 3,300 drivers have been arrested under the statute. As of June of 2013, more than 14,000 drivers have been required to have interlock devices in their cars thought New York State.

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