Articles Posted in DWI Topics Of Interest

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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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.

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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.

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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.

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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.

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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%.

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