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Recently, a New York court denied a defendant’s motion to suppress incriminating statements he made after leaving the scene of an accident. After the defendant was convicted of the unlicensed operation of a motor vehicle, he filed an appeal, arguing that the court failed to suppress several statements he made in response to an officer’s questions. The court denied the defendant’s motion, determining his freedom was not sufficiently restricted to find that he was subject to custodial interrogation.

The Facts of the Case

According to the court’s opinion, a hit and run took place between a van and a car in which the van drove off immediately following the accident. As the van was driving away, its license plate fell onto the ground, and a county sheriff picked it up to investigate. After identifying the van’s registered owner, another officer from the sheriff’s office decided to visit the owner at his nearby farm. During the visit, the van owner admitted to the officer that the van had been stolen. This admission, along with other incriminating statements, ended up being used against the van owner in court.

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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On July 27, 2011, former NBA star and ESPN analyst, Jalen Rose, was sentenced to a 20 day jail sentence for drunk driving. Back in March of this year, Rose was arrested after he lost control of his Cadillac Escalade on an icy road in Oakland County, Michigan, and the investigating officer determined that he was intoxicated. Rose admitted to drinking six martinis after he failed at least one field sobriety test. Normally, each mixed drink such as a Martini will increase the Blood alcohol concentration (BAC) of an individual by approximately 0.02%. At the scene, Rose registered a 0.088% on a preliminary breath test. However, although preliminary breath screening tests can give an officer probable cause to make an arrest for DWI, the results of these tests are not admissible in Court.

Only a chemical test of a person’s breath, blood, urine, or saliva have the scientific validity to be considered legally admissible evidence of intoxication. Later, a hospital blood test showed Rose had a 0.12% blood alcohol level, which would correspond well with having six martinis (6 x 0.02%=0.12%). Under Michigan law, as in New York, 0.08% is considered legally intoxicated. In May, 2011, Rose pled guilty to DWI, a misdemeanor.

The judge sentenced Rose to the maximum 93-day sentence in jail, and one year of probation. However, the judge suspended 72 days of the sentence, and Rose received credit for the night he spent in jail after the accident. Rose, who is known for his charity work, and has no prior criminal record, apologized to the Court, saying that the experience had “humbled and humiliated” him. Nevertheless, Judge Kimberly Small gave him the maximum jail sentence, and noted that there were “serious consequences” for driving while intoxicated.

Rose will likely be released August 18, 2011, with a two day reduction of his sentence for time served. After his release, Rose, who lives in California, will commence his probationary term with a report by mail to his probation officer.

If Rose had been convicted of a New York DWI, he would be facing a 6 month revocation of his driver’s license, fines and surcharges of $900.00, the requirement to be screened and evaluated for alcohol/substance abuse, attendance at a Victim Impact Panel sponsored by MADD, attendance at the Department of Motor Vehicles Drinking Driver Program at the conclusion of the criminal case, and the requirement to install and maintain an ignition interlock device in his vehicle for one year.

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During the course of an arrest for New York DWI, the arresting officer will request that you take a chemical test of your blood, urine, or breath. Most commonly, the request is to take a breathalyzer, which should not be confused with the breath screening test (often an alka-sensor is used at the scene, the results of which are not admissible in Court). When the request is made, many people react based upon what friends or relatives have told them, i.e., always refuse the test (not great advice) try to chew a piece of gum or drink coffee ( absolutely useless), or stall (not going to work).

What most drivers do not know, is that you do have a qualified right, based upon a 1968 Court of Appeals case People v Gursey, to contact an attorney to advise you as to whether to take the chemical test or not. To be clear, because the issuance of a driver’s license is a privilege, and not a constitutional right, there is no absolute right to an attorney, as there would be in a criminal case. Clients often confuse the fact. The DWI case is a criminal case, whereas a failure to take the chemical test results in a Refusal Hearing, which is an administrative proceeding, conducted at the local Department of Motor Vehicles office for that county.

The caveat to your rights under Gursey, is that you may not “substantially interfere with the investigative procedure” while requesting to contact a lawyer. What this means is that if you need to start looking up the name of an attorney while in the course of your DWI arrest, or start frantically calling friends to get the name of a lawyer who may or may not be available when you call (not too likely at 3:00 in the morning), the qualified right to counsel established under People v. Gursey is not likely to help you.

The best advice that I can offer is to have an attorney’s name and phone number saved in your cell phone, so that if you are stopped for a DWI, and a request is made for you to consent to a chemical test, you can quickly contact an attorney that you know you will be able to reach, and receive the advice that you need.

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When facing a New York drunk driving charge, you will quickly hear several terms which will have particular importance for your case. This article will familiarize you with a few of those terms. First of all, if you were required to take a test of your breath at the scene of your arrest for DWI, this is known as a BST, or breath screening test. Please note that this is distinguished from the Breathalyzer, which is the test of your breath performed at a police precinct. The major distinction is that the BST conducted by the arresting officer at the scene of the stop is not admissible in Court. Thus, if the officer believes he has probable cause to arrest you for Driving while intoxicated based upon the BST, you will then be asked to take a breathalyzer at the precinct.

The Breathalyzer is used to determine your BAC, or blood alcohol content. The results of the Breathalyzer are admissible in Court. In New York, if your BAC is found to be 0.08 percent or above, you are charged with DWI. If your blood alcohol content as tested either by your breath, blood or urine, is determined to be less than .08 percent, you cannot be charged with driving while intoxicated, and may be charged with a New York DWAI, or Driving While Ability Impaired, which the prosecutor will likely charge you with if your BAC is between .05 and .07 percent.

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Dr. Luigia Notaristefano, an internal medicine specialist associated with Putnam County Hospital, was arrested on January 26 on charges that she sold narcotics prescriptions to an undercover Putnam County sheriff. Dr. Notaristefano is charged with eight counts of a Putnam County sale of a prescription for a controlled substance, and one count of third degree criminal sale of a controlled substance. Each of these charges is a felony under the Penal Law of the State of New York. The most serious charge, third degree criminal sale of a controlled substance under section 220.39 of the Penal Law, is a class B Felony, carrying a maximum prison term of 25 years.

The investigation into Dr. Notaristefano was a joint effort by the federal Drug Enforcement Administration, (DEA) the New York State Health Department, the Putnam County Sheriff and the Putnam County District Attorney’s Office, after it was learned that a doctor practicing in Putnam County was issuing a large number of narcotics prescriptions to her patients. The prescriptions were apparently for Vicodin, Valium and Suboxone, which is commonly prescribed to treat heroin addiction.

Dr. Notaristefano was arraigned by Carmel Town Justice Joseph Spofford and was released from the Putnam County jail on $25,000 bail. She is due back in the Southeast Town Court on February 3, 2009.

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Commercial operators in New York such as truck drivers face much more serious consequences when facing any New York drunk driving charge than do non-commercial drivers.

First, the level of intoxication which can result in a New York driving while ability impaired charge, the lowest drunk driving charge in New York, is less for a commercial operator–.04 BAC– (Blood alcohol content) than it is for a non-commercial driver, who must have at least a .05 BAC to be charged with a DWAI. This is absolutely critical, as a commercial driver who is operating a motor vehicle with .04 BAC faces a mandatory one year revocation of his or her driver’s license when convicted or pleading guilty to any drunk driving violation whatsoever, even a DWAI. Thus, a drunk driving charge can be the end of a truck driver’s employment. When comparing this to the situation of a non commercial driver, who on a first conviction of a DWAI, will only be assessed a 90 day suspension of his or her driver’s license, it is clear that New York State has no tolerance for drunk driving charges by commercial operators.

On a second DWI (driving while intoxicated) or DWAI charge, if the commercial driver is convicted of any New York DWI charge, the commercial driver is now subject to a “permanent revocation” of his or her CDL, meaning that the driver must now wait for at least 10 years to apply for a new commercial license! Conversely, on a second DWI conviction for a non-commercial driver, as long as there is no personal injury or an aggravated DWI involved, the non-commercial driver could potentially only have his or her license revoked for 6 months or a year.

On a third DWI charge, or if there is a combination of three DWI charges and/or New York chemical test refusals, there is a mandatory license revocation with no chance of ever getting the license reinstated.

One other vital fact for commercial drivers to know is that it does not matter what type of vehicle you are driving when you get the drunk driving charge, so that even if you are going out for dinner with your spouse and have a few two many cold ones, it has the same effect as if you were operating the tractor-trailer.

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Meghan Wood of Stormville, New York has been charged with one count of first degree vehicular manslaughter, two counts of second degree vehicular manslaughter, and three counts of misdemeanor DWI in the tragic June 18th death of her best friend Lisa Marie Moray. Wood’s SUV went off the ramp from the southbound Sprain Brook Parkway heading onto the eastbound lanes of I-287 at approximately 4:30 AM on June 18th, rolled over, and landed on its wheels. Both women were ejected from the vehicle. The two friends had apparently spent the night drinking at a Manhattan club called Down The Hatch. Wood admitted to police that she had 8 beers and was found to have a blood alcohol content (BAC) of .18, leading to the New York Aggravated DWI charges.

Ms. Moray was pronounced dead at the scene. Ms. Wood allegedly told police that Moray was driving. However, police investigation, including DNA evidence from the car, and a photo from the Henry Hudson toll bridge, apparently shows that Wood was driving the vehicle.

Wood posted the $20,000 bail and is due in Westchester County Court in White Plains on January 22, 2009. She faces a maximum sentence of 15 years on the first degree vehicular manslaughter count under the Penal Law of New York State.

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In an update to our post on November 1, 2008, former New York Assemblyman Ryan Karben pled guilty last week to a New York driving while ability impaired charge, and driving across hazard markings, in the South Nyack Justice Court. By pleading guilty to the reduced charge of Driving While Ability Impaired, instead of a driving while intoxicated charge, Mr. Karben was able to avoid a criminal record, as a New York DWI is a misdemeanor, whereas a DWAI is only a violation.

The charges stemmed from a January 30, 2008 arrest in which Mr. Karben smashed his Acura into a utility pole, failed Field Sobriety tests, and refused to take a chemical test. Interestingly, in addition to paying the fines of of approximately $500.00, having his license suspended for 90 days, being required to attend a victim impact panel and to take a drinking driver course (which will last seven weeks and cost him an additional three hundred dollars), Mr. Karben also was sentenced to two days in jail, which is virtually unheard of in a DWAI case.

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If you are a driver of a commercial vehicle in New York State, driving while intoxicated in New York (DWI) and refusing to submit to a breath screening test have very serious implications, and much more so than with drivers of non commercial vehicles.

Examples include: 1. Drivers of commercial vehicles can be charged with a DWAI (Driving While Ability Impaired”, the lowest level of a drunk driving charge, with a blood alcohol content (BAC) of only .04-.06, lower than the level of .05-.07 which would substantiate a DWAI charge against a non-commercial driver.

2. For a CDL operator, regardless of whether the charge is a DWI, which is a misdemeanor, or a DWAI, which is a traffic violation, the CDL license is revoked for one year. Contrast this with a first time offense by a non-commercial operator, who faces the much less severe penalties of a 90 day suspension of his or her driver’s license on a DWAI, or a 6 month revocation of his or her driver’s license on a DWI.

3. TLC Hack licenses are also revoked for a year on either a DWAI or DWI.

4. If a CDL operator refuses to take a breath screening test, his or her license is revoked for a full 18 months! This refusal will remain on the commercial driver’s record FOREVER. And if you refuse a second time as the holder of a CDL, you are facing a lifetime revocation!

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