Articles Posted in DWI–Legislative Update

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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In November of 2009, New York State enacted Leandra’s Law after the tragic death of 11 year old Leandra Rosado, who was killed when a friend’s mother drove while intoxicated on the way to a birthday party. One of the main provisions of the statute was that anyone convicted or who pled guilty to a DWI related crime (with the exception of driving while ability impaired, which is a traffic infraction, not a crime, and thus not included in the statute) would be required to install and maintain an ignition interlock device (IID) in any vehicle they own or operate for at least 6 months. The IID prevents a driver from starting a vehicle unless they blow into the device with alcohol free breath (the device is actually calibrated to detect a blood alcohol concentration (BAC) of approximately 0.2%). Additionally, the operator of the vehicle must continue to use the device in regularly scheduled intervals as they drive the vehicle, approximately every 15-30 minutes, and if he or she fails any of these tests, the vehicle will lock up if a re-test is not passed within a short period of time.

Apparently, what state lawmakers are addressing is that approximately 30% of drivers are complying with the requirements of the law. According to an article in the Journal News published this past week and written by Aaron Scholder, many drivers have circumvented the law by transferring the ownership of their vehicles to family members until the IID requirement is over (although the law requires a minimum of six months, in my experience, it is almost always for one year), or driving vehicles other than their own which do not have the IID installed. New York State Transportation Committee Chairman Charles Fuschillo cites statistics that only 31% of those convicted of DWI have installed the devices in their vehicles, or approximately 7,100 drivers. Many convicted under Leandra’s Law will simply claim that they do not own a vehicle or have access to one, and sign a certification or swear under oath to that effect. To address this problem, the State Senate wants to require that those convicted under the law who claim to have no car wear an ankle bracelet that would monitor alcohol levels.

The legislation passed by the Senate has now been delivered to the State Assembly for their review, but seems to have stalled. Considering that the session will end at the end of June, the pressure is on the Assembly to act on the new bill. It would appear that no legislator would want to publicly oppose a law which seeks to address problems in a statute already on the books, but there is certainly the possibility that the new law will not pass both chambers prior to the late June end of session.

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Leandra’s Law, making it a felony to drive while intoxicated with a child under the age of 16 in the vehicle, led to 661 DWI arrests in 2010, according to an evaluation by the New York State Division of Criminal Justice Services. The law was named for 11 year old Leandra Rosado, who died in an October, 2009 car accident when the SUV she was a passenger in flipped over in Manhattan. The driver of the SUV, Carmen Huertas, is currently serving a 4-12 year sentence for the felony DWI charges.

The number one county for Leandra’s Law arrests in 2010 was Suffolk County, with 67 arrests, followed by Erie County with 57 motorists being charged. Westchester County was third, with 45 drivers charged under the law, which went into effect on December 18, 2009.

Male drivers were twice as likely to be arrested under the statute; police charged 425 male motorists and 236 female drivers. Across the United States, 36 states have a child endangerment statute which punishes intoxicated drivers with a child in their cars, but New York was the first state to make it a felony to drive while intoxicated with a child under the age of 16 in the vehicle. Certainly, the Diane Schuler accident in July, 2009, in which 8 people died including 4 children, played a significant role in creating the impetus for Leandra’s Law.

Under the statute, any driver now convicted of driving while intoxicated must install an ignition interlock device (IID) in their vehicle for one year. With an IID, the vehicle will only start if the driver has alcohol free breath, and then the driver must continue to blow into the device approximately every 15 minutes to keep the ignition from cutting off. Failure to install, maintain or comply with the IID device can result in additional misdemeanor charges.

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Under legislation signed by Governor David Paterson on July 19, 2010, additional medical professionals will now be authorized to take blood from motorists charged with DWI. Under the original law, Section 1194 (4) of the New York Vehicle & Traffic Law, if requested by a police officer, the persons authorized to withdraw blood for determining the alcoholic or drug content are physicians, registered nurses, or registered physician’s assistants. Additionally, if supervised by a physician, a medical laboratory technician, medical technologist, a phlebotomist, or an advanced emergency medical technician are also permitted to draw blood to determine blood alcohol content (BAC).

The modification to the existing statute will now permit advanced EMT’s and certified nurse practitioners to withdraw blood from those charged with driving while intoxicated without supervision by a physician.

The impetus for the new law came from the family of Jack Shea, who was a two time gold medalist in speed skating in the 1932 Olympics. On January 23, 2002, an alleged drunk driver crashed into the vehicle operated by Mr. Shea, who later died from his injuries. The driver’s blood was drawn by an EMT, who was not supervised by a physician. As a result, the charges of vehicular manslaughter, criminally negligent homicide and driving while intoxicated were dismissed. Apparently, the reason that the EMT was required to draw the blood is that the physician’s assistant and nurse were attending to Mr. Shea. The Warren County D.A. Kate Hogan stated: ” Prior to today, there were hundreds of cases where dunk drivers who killed or seriously injured people were having their blood drawn by someone who is legally entitled to draw blood in the medical community, but because of an anomaly in the vehicle & traffic law, could not draw blood for purposes of criminal prosecution…it resulted in evidence, critical evidence, being suppressed and cases dismissed.”

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NY Governor Paterson signed “Leandra’s Law” on November 18, 2009, by which motorists accused of a New York drunk driving offense with a child under age 15 in the car will be charged with a felony. The law, which will actually go in effect on August 15, 2010 (270 days from the signing date), will also require that motorists convicted of a New York DWI install an interlock ignition device in their vehicles for at least 6 months.

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.

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Last month 11 year old Leandra Rosado was killed in a New York DWI accident on the Henry Hudson Parkway when the driver, 32 year old Carmen Huertas, lost control of the vehicle and it overturned. There were seven girls in the car between the ages of 11 and 14. Ms. Huertas was charged with vehicular manslaughter and driving while intoxicated.

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.

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The Westchester County Board of Legislators has passed legislation requiring the forfeiture of cars for motorists convicted of any Westchester County drunk driving offense beginning on December 15, 2010. The new law also applies to those convicted of unlawful speed contests or drag races in Westchester County. The four county parkways which the new law would apply to are the Saw Mill River Parkway, Bronx River Parkway, Cross County Parkway, and the Hutchinson River Parkway. Thus, drivers convicted of Westchester County DWI or DWAI on major roadways such as 684, the Taconic Parkway or I-287 would not have their vehicles confiscated as these roadways are operated by New York State, not Westchester County. Interestingly, statistically speaking, there any many more speed contests and drag races on 684 than on the four county run parkways.

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.

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