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Former New York State Assemblyman Ryan Karben’s DWI trial began on October 25, 2008 in South Nyack Village Court. Karben was arrested in January of 2008 after allegedly crashing his Acura into a utility pole and then continuing to drive before being stopped by police. Karben purportedly told the Ramapo Police officers who arrested him that he swerved to avoid hitting a deer. When Mr. Karben failed 4 field sobriety tests, he was arrested and charged with a misdemeanor DWI.

Apparently, Mr. Karben also refused to take chemical test at the police station, which has resulted in an automatic 12 month revocation of his driver’s license.

Karben’s attorneys, including the well known former ADA for Rockland County, Kenneth Gribetz, are challenging the evidence against Mr. Karben in pre-trial hearings, including whether the Ramapo Police had probable cause to arrest Karben. The Field Sobriety Tests which formed the basis for the arrest were captured on a video camera from the patrol car, undoubtedly making for some very interesting evidence.

Jury selection was scheduled to start this week. We will report on the outcome at the conclusion of this New York drunk driving case.

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It’s a Friday night, and you’ve been out with the guys watching the game at your favorite bar a few miles from home. You’ve had a few drinks, the game is over, and you are on your way home. Suddenly, the police pull you over, and you are asked if you’ve been drinking. When the officer smells alcohol on your breath, he asks you to do the Field Sobriety test (I will write about this in an upcoming post), consisting of standing on one foot, walking in a straight line for 9 steps and then reversing on the same line, and touching your finger to your nose. The officer then requests that you take a breath test. One of the most common questions DWI lawyers get asked is: “Should I refuse?”

There is no easy answer to this question, but there are several things to keep in mind. First, if you refuse, there will be an automatic 12 month revocation of your driver’s license, unless you win at the DMV Refusal Hearing, conducted by a DMV administrative judge in which the odds are definitely against you. Considering that if you do take the test, and you get a DWAI (Driving While Ability Impaired), your license is only suspended for 90 days, or if you are convicted of a DWI, your license is revoked for only 6 months, by refusing the chemical test you are either doubling or quadrupling the time you will be without your driver’s license. On a second refusal, your license is revoked for 18 months!

Second, by refusing you are subject to a $500 fine for the first refusal, and a $750 fine for a refusal on a second DWI charge.

Third, if you are found to have refused at the administrative hearing at the New York DMV, you are not eligible to obtain your conditional license. This is critical, as the conditional license allows you to drive to and from work, for emergency medical treatment, to school, or to pick up your children at day care.

For clients with a CDL, driving a tractor-trailer or other commercial vehicle, a refusal is a very unwise move. By refusing a chemical test, the following will happen: Your license is now revoked for 18 months, and you are assessed a $500.00 penalty. The refusal is on your record forever, so that even if you have a refusal 20 years later driving a private vehicle, it will still have a huge impact on your CDL, because if you have a second refusal, your commercial driver’s license is permanently revoked!

Generally speaking, unless a felony is likely to be charged, or someone has been badly injured or killed as the result of the DWI, refusals are a very risky business indeed.

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From June through July, 2008, three local residents were charged with DWI due to driving the wrong way on major roadways. On June 1, 2008, Eastchester resident Kathleen Beaton was charged with a Rockland County DWI for driving the wrong way on the Tappan Zee Bridge from Westchester to Rockland County. Her blood alcohol content (BAC) was alleged to be .20, which is more than double the legal limit. On September 29, 2008, Ms. Beaton pleaded guilty to aggravated driving while intoxicated, which is a misdemeanor with a one year revocation of her driver’s license and with potential fines of as much as $2,500. Beaton is scheduled to be sentenced in Grand View Village Court on October 22, 2008.

On July 1, 2008, Nabil Zidan of Mohegan Lake allegedly drove southbound on the northbound Taconic State Parkway in New Castle with a blood alcohol level of 0.17 percent. Zidan was charged in a Westchester County DWI, and is due in New Castle Town Court on October 16, 2008.

On June 13, 2008, Kevin Lyons of Rye allegedly drove eastbound on the westbound side of I-287 and collided with a tractor-trailer. Lyons’ BAC was determined to be 0.26, more than 3 times the legal limit. Mr. Lyons was charged with a Westchester County Aggravated Driving While Intoxicated, and is due in Harrison Town Court on October 3, 2008.

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“Binge” Drinking among college students has been a big issue in the news recently, highlighted by the August 2008 death of 23 year old Ed Trapasso, a Valhalla resident and recent college graduate who had friends over to celebrate his graduation. Mr. Trapasso is one of 1,700 college students aged 18-24 who die each year from unintentional alcohol injuries, based upon research from the National Institute on Alcohol Abuse and Alcoholism. Binge drinking is defined as five drinks in two hours for men and four drinks in two hours for women.

Researchers with the Harvard School of Public Health, found a consistent 44% of students over an 8 year period fit the description of binge drinkers. Binge drinking can lead to alcohol poisoning, which causes vomiting, seizures, slow and irregular breathing, hypothermia (low body temperature) and in more severe cases, death. Dr. Michael Skelly, an emergency room doctor at Phelps Memorial Hospital Center in Sleepy Hollow, found that the number of young people he had treated for alcohol poisoning had more than doubled between 2003 and 2007!

Other annual statistics compiled by the NIAAA for college students who abuse alcohol: approximately 600,000 are injured in DWI accidents and other types of accidents; close to 700,000 are assaulted by another student who has been drinking; almost 100,000 are victims of sexual abuse; and approximately 400,000 have unprotected sex, with more than 100,000 not recalling whether they consented to sexual relations.

Lower Hudson Valley colleges have joined forces to curb excessive drinking, forming the “Westchester Colleges Consortium on Alcohol and Other Drugs.” The group is comprised of law enforcement, community organizations, schools and other organizations. For example, at Purchase College, there is a freshman orientation session addressing drug and alcohol abuse, and the college also requires students to take an online course called “AlcoholEdu”, which aims to have students make more intelligent decisions about drinking. Students are provided with a blood alcohol calculator and instructions to assist friends struggling with alcohol abuse.

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The New York Drinking Driver Program (DDP) is a 7 week program designed to assist drivers convicted of driving while intoxicated, driving while ability impaired, or driving under the influence of drugs to make better and more appropriate driving decisions in the future. The program involves classroom education, screening, and in certain cases, evaluation and treatment.

Of critical importance, satisfactory completion of the DDP is required before drivers convicted of a New York DWI or New York DWAI will be permitted to have their license or (in the case of out of state drivers) their New York driving privileges reinstated. The DDP is 7 weeks long and each class is between 2-3 hours, for a total of 16 hours. The cost for the program includes an initial fee of $75.00 paid when the application is submitted, and then a fee of approximately $225.00 on the date of the first session. If you do not attend all seven weekly sessions, you cannot obtain your conditional license. After satisfactory completion of the program, the participant will receive a certificate of completion which must be furnished to the Court as part of the sentence for the DWI. Importantly, especially for those convicted of more than one drunk driving offense, a motorist is only eligible to participate in the DDP once every five years.

In order to enter the program, the driver must go to the local DMV office after sentencing with paperwork obtained from the Court, known as an “Order of Suspension or Revocation.” It generally takes approximately three weeks to get enrolled in the DDP.

A conditional license, which the driver uses until he or she gets his or her license reinstated, can be used to travel to and from work; to and from a class at an accredited school or college; to transport children to and from a child care facility; to and from DDP classes; to and from medical examinations as long as the necessity of the visit is certified in writing by the physician; to and from DMV with regard to the conditional license, and for court-ordered probation activities. A conditional license is not valid for driving a taxi or any motor vehicle that requires the driver to have a Commercial Driver License (CDL).

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In a follow up to our July 25 blog, Michael Rights, the Southeast Town Supervisor, pled guilty to driving while intoxicated this week in connection with his July 20th arrest in which he was charged with two DWI counts. Rights was sentenced to enter what is commonly referred to as the DDP or Drinking Driver Program, a seven week course required of all drivers convicted of a New York DWI, must pay a fine of $1,000, and his driver’s license has been revoked for 6 months by Judge Spofford of Carmel Town Court.

There have been numerous calls by Putnam County residents for Mr. Rights to resign his office after his second drunk driving conviction in 13 months. However, he has stated publicly that he intends to stay on. Immediately after his guilty plea, Rights presided over a town board meeting in the same building.

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Putnam County Official Michael Rights, the Southeast Town Supervisor, was arrested at 3:00 AM this past Sunday on DWI charges when he failed to dim his bright lights and allegedly failed several Field Sobriety Tests at the scene. Rights was taken to police headquarters in Carmel and a chemical test apparently revealed that he had a blood alcohol content (BAC) of above 0.08, the legal limit for a New York drunk driving charge.

This is the second time in 13 months that Mr. Rights has been charged with drunk driving. In June, 2007, Mr. Rights crashed his 2005 Jaguar on Milltown Road in Southeast, was trapped in his overturned car, and at Westchester Medical Center, was found to have a BAC of 0.12. Amazingly, despite the charges, (Rights pled guilty to the reduced charge of Driving While Ability Impaired in December of 2007), he was elected Town Supervisor in November of 2007, after sending a mailer asking that voters forgive his actions.

Mr. Rights claims that because he is trying to “clean up” the towns of Brewster and Southeast, he is being targeted by local officials, and has questioned the circumstances of his arrest, including being stopped for the simple violation of failing to turn off his bright lights. He is due in Southeast Town Court on August 20 on two DWI charges. Rights faces up to one year in the County jail and a $1,000 fine if convicted of drunk driving.

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The Westchester County Board of Legislators appears ready to approve a Social Host Law by this fall. Under the proposed bill, Westchester would join other counties such as Nassau and Suffolk in imposing criminal penalties on adults who allow those under under the age of 21 to drink alcohol on their property. This new alcohol law would impose fines from $250 to $1,000 on adults who violate the law, with the only exception being that the bill does not apply to the adult’s own children.

The supporters of the law, including Mothers Against Drunk Driving (MADD) argue that the bill will close loopholes in state law which allow party hosts to avoid criminal prosecution by claiming they didn’t know that minors were drinking alcohol on their property. Critics of the proposed law such as the New York Civil Liberties Union, (NYCLU) contend that the law is unnecessary because state law already prohibits serving alcohol to minors. Additionally, critics claim that the bill would encourage over aggressive police enforcement and violate privacy rights.

A final hearing on the bill is scheduled for August 11th, after which legislators are likely to vote on the law.

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Over the last month, DWI charges have been filed against three motorists driving the wrong way on local highways. Most recently, on July 1, New York State troopers arrested a Mohegan Lake resident for driving south on the northbound lanes of the Taconic Parkway in New Castle. The driver, Nabil A. Zidan, allegedly had a BAC (blood alcohol content) of 0.17. On June 13, Kenneth Lyons of Rye was charged with aggravated DWI when he allegedly drove the wrong way on I-287 in Harrison and struck a tractor-trailer. On June 1, Kathleen Beaton of Eastchester was stopped for driving the wrong way on I-87 while going over the Tappan Zee Bridge, and charged with aggravated DWI based on a purported BAC of .20.

The legal threshold for DWI in New York is .08 or above. In November of 2007, the New York State Legislature passed a new law which created the charge of Aggravated Driving While Intoxicated, for which the threshold is .18 BAC or above.

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