Articles Posted in DWI Topics Of Interest

If 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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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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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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The National Transportation Safety Board (NTSB) has recommended that states reduce the legal limit of intoxication from a blood alcohol content (BAC) of 0.08% to 0.05%. Presently, all 50 states in the United States have a uniform legal BAC of 0.08%, meaning that a driver cannot be convicted of driving while intoxicated unless they have a BAC of 0.08% or above. In New York State, if a motorist has a BAC of 0.05% to 0.07%, they can be charged with driving while ability impaired, (DWAI), which is a traffic infraction, not a crime. If an operator has a BAC of 0.18% or above in New York, they can be charged with Aggravated DWI, (a misdemeanor) which went into effect in 2010.

THE NTSB can only make recommendations, and has no legal power. In making its recommendations, it refers to the fact that on an annual basis, approximately 10,000 people die in alcohol related traffic crashes, and 170,000 people are injured. This is a significant improvement from 30 years earlier, when there were about 20,000 deaths from alcohol related accidents. Studies have noted that approximately 4 million people acknowledge driving while they are under the influence of alcohol. Presently, the U.S., Canada and Iraq are among the few countries that have instituted a legal limit for intoxication at 0.08%. In contrast, Russia, South American, Australia, and the majority of European countries have set the legal limit at 0.05%. Apparently, Australian provinces saw a reduction of 5-18% in traffic deaths when the legal limit was reduced to 0.05% from 0.08%.

There will certainly be a huge amount of lobbying against a reduction of the legal limit of intoxication by representatives of restaurants, clubs, bars and other service industries. In fact, the American Beverage Institute has already noted its opposition to a reduction, stating: “Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior…further restricting the moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hardcore drunk drivers from getting behind the wheel.” This argument is similar to that made by opponents of gun control such as the NRA, which has been quite successful in its’ efforts to limit any form of restrictions on gun ownership.

The NTSB contends that the reduction could save up 1,000 deaths a year if the 0.05% standard was adopted in all fifty states. The Board states that at 0.05% BAC, some drivers have difficulties with depth perception and their vision in general, and at 0.07%, judgment and cognitive abilities can be impaired. It is important to note that the previous effort to reduce the legal intoxication rate from 0.10% to 0.08% took 21 years to be adopted in all fifty states, commencing with Utah in 1983 and ending with all fifty states implementing the 0.08% level in 2004.

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In an article on the New York Times this week, Dan Frosch reports about New Mexico’s aggressive efforts to fight DWI in that state. In 2011, New Mexico had the eighth highest fatality rate in the United States for alcohol-related accidents. This was an improvement from 10 years earlier, when New Mexico had the fourth most fatal accidents due to alcohol involvement. North Dakota leads the U.S. in fatal accidents as a result of intoxication.

The New Mexico legislature has now introduced a bill which would prevent anyone with a DWI conviction from buying alcohol anywhere in the State, including stores, bars and restaurants. If the law is implemented, it would be ranked as one of the most restrictive DWI laws in the country. In 2005, the New Mexico legislature passed an ignition interlock law, which mandates that drivers convicted of DWI install and maintain an ignition interlock device (IID) in their cars for at least one year. The IID prevents the vehicle from starting unless the driver has a BAC (blood alcohol concentration) of almost zero (many people have a small percentage of mouth alcohol naturally or may have used an alcohol based mouthwash) so the device is generally calibrated to detect a BAC above about 0.02%; the legal limit, here in New York and in New Mexico, as in most states in the nation, is 0.08%.

If the New Mexico DWI alcohol prohibition law passed, drivers with ignition interlocks would be issued a specially devised license noting that they are prohibited from buying alcohol. The legislation received overwhelming support in the New Mexico House of Representatives, passing by a vote of 59-5. It will now be ruled on by a state senate committee. Alaska is another state that has the alcohol prohibition regulation, and a DWI offender has his or her state identification marked. The National Conference of State Legislatures notes that approximately half of U.S. states monitor those with drunken driving convictions for alcohol consumption as part of a sentence, often through the use of an ankle bracelet.

In many jurisdictions, it is difficult to enforce the IID sentence, as drivers circumvent the requirement by claiming they are not driving when they are, contending they don’t own a vehicle when they do, or requesting that someone else blow into the device to get the car to start. In New York, there are specific measures to prevent someone convicted of DWI from disregarding the IID device. For example, the driver must utilize the device to start the vehicle, and then continue to blow into the IID in regular intervals of every 15-20 minutes to keep the car running, known as “rolling retests”. If the driver fails the retests, the ignition will cut off and in some devices, the car’s horn will begin to sound or headlights flash to alert police to the fact that the driver should not be operating his or her vehicle. Further, some IID’s have video, so that a driver who attempts to have someone else blow in the device will be discovered, and if this is the case, both the sentenced driver and the accomplice will face criminal charges.

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When clients are charged with DWI in Westchester County, it is well known among defense attorneys that a blood alcohol concentration (BAC) of 0.15% or above is the cutoff which the District Attorney’s Office uses when determining whether they will offer a plea bargain to a lesser charge. Inotherwords, if the client’s BAC is above at a 0.15% or above, the Westchester DA’s Office is not willing to negotiate the DWI charges. A DWI is charged if the driver’s BAC Is 0.08% or above. Obviously, this BAC, without taking any other factors into consideration, seems arbitrary, but this does not change the fact. In essence, even if the client has never had a DWI previously, has a clean record, was not involved in a properly damage or personal injury accident arising out of the DWI and was completely compliant with the police officers investigating the DWI, the 0.15 BAC takes the case out of the negotiation category and places it firmly in the “as charged” section. Thus, a client is not eligible for a reduction to a DWAI (Driving While Ability Impaired), which is a traffic infraction, and not a crime, as is the DWI.

This policy has significant implications for clients for a variety of reasons. First, if the client is not eligible for a reduced charge and cannot afford to go to trial, they are facing a criminal record for a guilty plea to the DWI, which would be averted if they could plead to the DWAI. Obviously, this has a huge impact when it comes to employment applications and applications for college and other educational opportunities.

Secondly, most recently, on DWI pleas, the District Attorney’s Office now will request, (although not on every case from what I have seen, that the defendant be sentenced to probation, rather than a conditional discharge, which is a huge difference. On a conditional discharge, once the client has attended Court mandated programs including the MADD Victim Impact Panel, the Drinking Driver Program, and any Court mandated counseling, they have essentially completed their sentence. Conversely, if a client is sentenced to probation, they must report to a probation officer for three years on a misdemeanor DWI, and probation, not the Court, determines when the person is eligible to get their driving privileges back and when or if they can travel.

Third, on a DWI charge, the defendant must install and maintain, at their own cost and expense, an ignition interlock device (IID) in any car that they own or have access to for one year (although the law requires for at least 6 months, judges are routinely ordering defendants to keep the IID in their vehicles for one year).

Fourth, on a DWI, the defendant’s license is revoked for six months, and then the driver must apply to the DMV to be reinstated, which is not automatic. In contrast, on a DWAI conviction or plea, there is a 3 month suspension of the driver’s license, and upon payment of the required reinstatement fee, assuming that the person has completed the required attendance at the DDP and VIP, they will be reinstated to their original driver’s license.

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In Part 1 or this article, we discussed the circumstances of when a motorist is required to install an ignition interlock device in their vehicle, how the IID works, how long the IID must remain in the vehicle and the crimes that require the installation of an ignition interlock device. We begin part 2 with the question: What if the motorist is not able to afford the installation or maintenance fees associated with an IID?

If the driver can demonstrate through the Court mandated “Financial Disclosure Report” that he or she does not have sufficient resources to pay for the IID installation and maintenance, the Court may either order a payment plan or waive the fee entirely. This form is extensive, and covers all sources of income, including bank accounts, property, rent, mortgage payments, and family members who might be able to assist in payment of the fees. Only if the Court is satisfied that the motorist has no means of payment will the fees be waived.

If the motorist does not own a motor vehicle as of the time of sentencing, proof must be given to the Court to this effect, from sources such as the NYS Department of Motor Vehicles and an insurance company if the vehicle was recently taken off of the road. If the motorist obtains a motor vehicle during the time of the DWI sentence, that vehicle must be equipped with a IID.

Once the driver has passed the start up test with the IID, the device will require “rolling tests” at regular intervals of approximately 15 minutes to 30 minutes. If the driver fails the start up test, he or she must re-take the test in 5-15 minutes. Additionally, once the start up test has been passed, rolling tests are required approximately every 15 to 30 minutes. Rolling tests are required while the driver is operating the vehicle. If the driver fails the rolling test, a rolling re-test will be required in 1-3 minutes. If a number of tests are failed, the car will go into “lockout mode” and then it will not be possible to start the vehicle unless it is brought back to the facility where the IID was installed.

If the driver fails a start up test or rolling test, this information will be provided to the sentencing Court, District Attorney’s Office, Department of Probation, and any treatment provider. This can result in a violation in the person’s sentence of a conditional discharge or probation, and can lead to re-sentencing on the original charge.

Additionally, if the driver tampers with the IID, fails to use the device, or attempts to have someone else blow into the device, this can lead to additional criminal charges against the driver, as well as any person charged with assisting in the tampering.

There are exceptions for use of the IID if the driver is operating a vehicle at work, as long as it is proven that the employer knows about the sentence and consents to allow the employee to operate vehicles without the device installed. However, if the person is self employed, they must only operate vehicles equipped with an ignition interlock.

After the sentence is completed, the driver can apply to the Court and Department of Probation to have the device removed at a Court approved facility.

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In August of 2010, the New York Vehicle & Traffic Law was amended as part of Leandra’s Law to include a provision that in all DWI convictions, the motorist is required to install and maintain an ignition interlock device (IID). An IID is a device which prevents a car ignition from starting if the operator of the car has a blood alcohol level of .025% or above when blowing into the device. Alcohol based mouthwashes such as Listerine are not recommended when the driver has an IID in their vehicle, as their use can lead to a positive alcohol finding despite the fact that the driver was not drinking alcohol. Clients must also be informed that if they drink alcohol the night before, and must drive to work early the next morning, they must be very careful to make sure that their alcohol intake is completed well in advance of entering their vehicle the next morning. Otherwise, there can be a positive alcohol reading, leading to serious consequences, despite the fact that the person was not drinking alcohol for many hours prior to entering their vehicle.

Under the law, an IID must be installed in all motor vehicles which the defendant either owns or operates. Thus, if the person convicted of a DWI is married or has children living at home who own motor vehicles, unless the person can prove to the Court’s satisfaction that he or she will not have access to the other motor vehicles in his or her household, the ignition interlock must be installed in all of the vehicles! The IID is required by law to be installed in the motorist’s car for at least six months, but in practical effect, all Courts in my experience are ordering that the device remain in the vehicle for a minimum of one year.

It is important to note that the IID must be installed in any DWI convictions, including common law DWI (by the officer’s observation of Field Sobriety tests, alcohol on breath, slurring words, staggering, loss of balance, bloodshot or watery eyes, for example), per se DWI (by chemical test evidence, including a breathalyzer, blood or urine tests), felony DWI, and aggravated DWI. Aggravated DWI is charged when the driver has a BAC (blood alcohol concentration) or 0.18% or above. However, the IID does not have to be installed on a DWAI conviction or plea (Driving While Ability Impaired), which is a traffic infraction, and not a crime as is a DWI.

When the Court sentences a driver on a DWI, they must report to the Department of Probation for direction on installation of the IID, which can only be performed at specifically authorized facilities. The driver must then return to Court with proof that the ignition interlock was installed in all vehicles which he or she owns or operates. The driver is required to pay the cost of installation of the device, as well as maintenance of the device during the one year period. The maintenance fees are approximately $75.00 per month or slightly higher.

In Part 2 of this article, we will discuss possible waiver of IID fees, the penalties for tampering with the ignition interlock or having someone else blow into the device, and the rules governing employer owned vehicles for motorists ordered to install an ignition interlock in their personal vehicles.

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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.

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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.

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