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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For the second month in a row, a Dallas Cowboys lineman was charged in a DWI accident case. On January 22nd, defensive lineman Jay Ratliff was driving his 2011 Ford pickup truck in Grapevine, Texas, when he apparently struck a semitrailer truck as he was changing lanes. Ratliff’s truck then turned sideways and struck a median before coming to a stop. Neither Mr. Ratliff nor the driver of the semitrailer were injured.

Police claimed that Mr. Ratliff failed field sobriety tests at the scene. Reports from the arresting officer Eric Barch state that Ratliff had a “moderate odor” of alcohol on his breath and blood shot, watery eyes. Ratliff refused to take a chemical test of his blood, but the police obtained a warrant to do so. Purportedly, the blood test revealed a blood alcohol concentration (BAC) of 0.16%, which is twice the Texas limit (as it is in New York) of 0.08%.

Ratliff was charged with DWI. There was no report as to his Court date. Fortunately, there were no injuries in the Ratliff accident, but tragically, the same cannot be said for the December 8, 2012 accident involving Josh Brent. Brent, a 24 year old nose tackle, was behind the wheel with his friend, college teammate and Cowboys practice squad linebacker Jerry Brown, when he lost control of his 2007 Mercedes S60 on Highway 114 in Irving Texas. Reports indicated that Brown was speeding, the vehicle stuck a curb, flipped several times, and skidded approximately 300 yards, the equivalent of 3 football fields.

When police arrived, Brent was pulling Brown out of the burning car. The two had been teammates for three years at the University of Illinois. Ironically, Brent pled guilty to a DUI in 2009 while in college. He was pulled over near the Illinois campus and arrested for DUI, driving with a suspended license, and speeding. He was sentenced to 60 days in prison, 200 hours of community service and two years probation. He was also ordered to attend a Victim’s Impact panel, which in New York is sponsored by Mothers Against Drunk Driving (MADD).

All NFL players have a “safe ride program” service on their union card, by which they can be picked up anywhere in the United States or Canada for an hourly fee of $85.00. However, with the spate of recent drunk driving arrests of Michael Turner, David Diehl and Justin Blackmon, along with those of Brent and Ratliff, it appears that the players are not availing themselves of the service.

Brent was charged with one count of intoxication manslaughter, which is a second degree felony in Texas. If convicted, he could be sentenced to between 2 and 20 years in prison, a $10,000 fine and could also be sentenced to probation. He is free on bond of $100,000 and must wear an alcohol monitor.

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“Criminal Minds” star Thomas Gibson was charged with DUI in downtown Los Angeles in the early morning hours of January 6, 2013. He reportedly attempted to drive his Audi SUV through barricades that had been set up for a half marathon which was taking place later in the day. He was pulled over by police, who allegedly smelled alcohol on Gibson’s breath. The investigating officers requested that Gibson take a chemical test of his breath, but he supposedly refused to do so. Thus, Gibson was arrested on misdemeanor DUI charges, booked and released several hours later on $15,000 bail.

In New York, rather than DUI charges, (driving under the influence), Gibson would have been charged with DWI, or driving while intoxicated. Because Mr. Gibson also refused to take a breathalyzer, he is most likely facing two completely separate proceedings, as is the case in New York. First, he is charged criminally on the DUI charges, which if convicted of, he will face fines, a restriction of driving privileges, the requirement to take driver safety programs, and the possibility (albeit slight) of facing jail time, unless he has prior DUI convictions on his record. Secondly, he will in all likelihood have to appear for a “Refusal Hearing” to address his failure to comply with the officer’s request that he take a breathalyzer.

Additionally, in New York, if a driver is convicted or pleads guilty to a misdemeanor DWI charge, he or she is required to have installed in any cars he or she owns or operates an ignition interlock device (IID) for one year (although the statute says six months judges are routinely requiring the IID to be maintained for one year). The interlock device, which will not permit the vehicle to operate if the driver has more than a trace of alcohol on his or her breath, must be installed at the driver’s expense, and must be checked by the local county probation department on a monthly basis to determine if the driver has attempted to drive the car after drinking alcohol. Violations of the ignition interlock requirements can lead to separate charges against the driver, or to against another person if they attempt, for example, to blow into the device for the defendant.

Gibson also must defend against the administrative charge of refusing a chemical test. In the State of New York, if a driver is found to have refused to take a test of their breath, blood, urine or saliva, they face a one year revocation of their driver’s license and a fine of at least $500.00. This hearing is conducted at the Department of Motor Vehicles by an administrative judge, and is very one sided in that the judges are employees of the Department of Motor Vehicles and give considerable weight to the testimony of police officer, regardless of the circumstances.

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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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Pittsburgh Steelers defensive lineman Alameda Ta’amu, 22, is facing a litany of criminal charges, including felony DWI charges after fleeing from Pittsburgh police in his vehicle on October 14, 2012 and striking several other vehicles while allegedly intoxicated. Ta’amu is a rookie for the team and is originally from Kent, Washington.

At approximately 2:30 AM on October 14, 2012, Ta’amu was reportedly driving his 2006 Lincoln Navigator erratically, including swerving across double yellow lines, passing red lights and speeding, when he was observed by an off-duty police officer. That officer noted that Ta’amu was entering an area where thousands of pedestrians were walking on the streets and sidewalks after having been to many of the local bars and restaurants. Alarmed, he radioed in to his headquarters, and an off-duty unformed officer drew his handgun and demanded that Ta’amu stop his vehicle. Rather than doing so, Ta’amu supposedly swerved his car and almost struck the officer, then sped away from the scene.

Mr. Ta’amu then disregarded additional officers on foot patrol who demanded he pull over. They reportedly had to dive out of the way of his speeding SUV. Ta’amu then crashed into several parked vehicles, including one occupied by 22 year old Jennifer Kosko, who is reported to have suffered a head injury. She was transported to the hospital and then released. After Ta’amu’s car was disabled from the multiple accidents, he attempted to flee on foot, and resisted arrest by ripping one arm away as the other was placed in handcuffs. Police allegedly were required to utilize 2 sets of handcuffs to restrain Ta’amu, who is 6’ 3” and weighs 348 pounds.

Blood alcohol testing allegedly revealed that Ta’amu had a BAC of 0.196, more than 2 times the legal limit of 0.08%. Ta’amu has been charged with 5 felonies, including “Fleeing or attempting to elude police officer”; “Aggravated Assault by Vehicle While DUI”; and three counts of “Aggravated Assault.” He is also facing misdemeanor charges of “Accident Involving Damage to Attended Vehicle”; resisting arrest; escape; and two counts of driving under the influence of alcohol. Lastly, Ta’amu has been charged with several traffic infractions, including driving on the right side of the roadway; obedience to traffic control devices, and accidents with unattended vehicles.

In all likelihood, Mr. Ta’amu will be facing extensive alcohol rehabilitation and treatment, but despite the severity of the charges, his status as a professional football player will likely work in his favor in a plea deal which will involve fines of at least $1,000-$2,500; a plea of guilty to the leaving the scene charges, and other possible charges such as disorderly conduct, but not the felony or misdemeanor charges. It is unclear if the prosecution will push for a guilty plea on any of the misdemeanors or felonies; if they do, it will probably result in a delay in the resolution of the case until it is not as much in the public eye. Ta’amu will also likely face civil liability for the injuries suffered by Ms. Kosko, but my strong expectation is that that case will be settled quickly by Ta’amu’s automobile insurance company.

Ta’amu was released on $25,000 bail. He was suspended by the NFL for two games. His next Court date has not been reported.

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In an effort to crack down on drivers who have multiple DWI convictions, the New York State Department of Motor Vehicles announced on September 25, 2012 a series of new, and much more stringent regulations, for repeat offenders. The most significant of these changes is for those drivers who have committed five or more alcohol or drug related offenses while they have been licensed drivers. Under the new regulations, these drivers would lose their license permanently, with no opportunity to regain driving privileges.

Similarly, drivers who have three or more alcohol or drug related offenses within 25 years, as well as one other serious traffic violations, such as being involved in a fatal crash or being assessed 20 points on their license within the least 25 years, would also be subject to immediate and permanent revocation of their driver’s license.

Under current DMV regulations, even if a driver has been convicted of multiple alcohol or drug offenses, he or she will not permanently lose his or her license. For example, based upon present law, a driver convicted of three alcohol or drug related driving offenses during a four year time frame, or four convictions within an eight year period, will in all likelihood lose his license for five years, and thereafter could apply to be re-licensed. Presently, in order for a driver to be assessed a permanent revocation of his or her license, this usually involves two alcohol convictions connected with serious personal injury accidents.

The new regulations also affect re licensing procedures. For drivers with 3 or 4 alcohol or drug related convictions, but no serious driving violation within the last 25 years, who are seeking to have their licenses reinstated after revocation, the DMV will deny their application for five years beyond their statutory revocations period if they commit an alcohol or drug offense. After the additional time period, the applicant will be eligible for a restricted license to drive to and from work, school and for medical or hospital treatment. Further, if the applicant’s license is reinstated, they must install and maintain an ignition interlock device in any vehicle they own or operate for five years.

The DMV has been pushing for the more stringent regulations based on their reported data that approximately 17,500 licensed drivers who have at least three DWI convictions have been involved in at least one fatal accident or accident which caused serious injury after those convictions. According to the DMV, more than 50,000 drivers with valid or suspended licenses have 3 or more alcohol or drug related convictions since they have been driving, and 15,000 of these operators have had three or more alcohol or drug related convictions in the past twenty years. Annually, more than 300 people are killed and more than 6,000 suffer injury in alcohol-related crashes, and the DMV reports that since 2005, there has been a 6% increase in accidents involving a driver that has already been involved in 3 or more alcohol related crashes.

It is anticipated that as a direct result of the new regulations, approximately 20,000 drivers will have their licenses permanently revoked or their licensing will be postponed to meet the new requirements.

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The National Highway Traffic Safety Administration (NHTSA) released a study recently which evaluated DWI deaths across the United States. The report is entitled “Prevalence of High BAC in Alcohol Impaired Driving Fatal Crashes”. The research was conducted in conjunction with an annual nationwide crackdown on DWI, which commenced on August 17th and will continue through the Labor Day holiday. The program, known as “Drive Sober or Get Pulled Over”, involves 10,000 police departments and law enforcement organizations.

NHTSA reports that the most commonly reported BAC (blood alcohol concentration) for drivers involved in DWI fatalities in 2010 was 0.18, which is more than double the legal limit of 0.08, which has been uniformly adopted across the U.S. There was approximately 1 DWI death every 51 minutes in 2010. 10,228 people were killed in the U.S. in alcohol impaired accidents in 2010, which constituted 31% of the total fatal car crashes that year. Of the 10,228 deaths, 65% were drivers with a BAC of 0.08 or more, 28% were passengers and 7% were non-occupants struck by the impaired driver. There was a reduction in the number of DWI traffic fatalities in 2010 from 2009, when there were 10,759.

In an examination of the drivers involved in the fatal car accidents, NHTSA found that drivers ages 21-24 were the most likely to be intoxicated, at 35%, followed by drivers ages 25 to 24 (30%), and then drivers ages 35-44 at 25%. The most common vehicles involved in the fatal accidents with drivers with a BAC of 0.08% or more were motorcycles at 28%, passenger cars at 23% and light trucks at 22%. The least frequent type of vehicle involved was large trucks at 2%.

NHTSA has been a prime mover behind an initiative to get all 50 states to institute an ignition interlock device (IID) system for first time drivers convicted of or pleading guilty to DWI. Recently the U.S. Congress approved a twenty million dollar program which would provide the states with additional monies if they implement the mandatory IID program. 17 U.S. states have such laws presently, with Missouri and Virginia the most recent states to add the IID laws. California has begun to institute mandatory IID for first time offenders in four counties, including Los Angeles.

In November of 2009, as part of Leandra’s Law, New York instituted the mandatory ignition interlock requirement for all drivers convicted of DWI, aggravated DWI, or felony DWI. The only drinking driving offense which does not require the installation of an interlock is for drivers convicted of DWAI, (driving while ability impaired), which is a violation, not a crime, and which involves operators with a BAC between 0.05% and 0.07. The IID must remain in the person’s vehicle for at least one year, they must pay for the monthly maintenance of the device (unless the defendant can prove to the Court that they are not financially capable of paying the costs and the County will then pay for the IID), and the device must be installed in all vehicles that the person either owns or operates.

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As has been widely reported by now, Kerry Kennedy, the daughter of the late Senator Robert F. Kennedy and ex-wife of Governor Andrew Cuomo, is charged with Driving While Ability Impaired By Drugs in the North Castle Town Court on July 13, 2012. The charges were filed after an accident with a tractor-trailer in I-684 southbound when Ms. Kennedy was allegedly driving her 2008 Lexus 350 erratically and struck a tractor-trailer on I-684 southbound near Exit 4 in Mount Kisco after appearing to fall asleep at the wheel. Ms. Kennedy is then accused of leaving the scene and being found slumped over her steering wheel by a North Castle police officer with a flat tire.

Initially, Ms. Kennedy was reported to have informed North Castle police officers that she might have taken an Ambien instead of Synthroid, a medication prescribed for people who have either a hyperactive or hypoactive thyroid. However, after her arraignment and plea of not guilty to the charges against her, Ms. Kennedy stated in a news conference that she was informed by her physicians that she may have suffered a partial seizure due to a prior head injury, which was purportedly seen on abnormal radiological test results, including an electroencephalogram (EEG).

Kennedy has since acknowledged that blood tests which her attorneys immediately reported as being negative, did show “traces” of Ambien in her blood. Under these circumstances, if the evidence against Ms. Kennedy was limited to evidence of drugs in her system, (and she had not had another DWI within 5 years), Ms. Kennedy would be eligible for a conditional license, which would allow her to drive to and from work, doctor’s appointments and Court mandated activities while her license is suspended.

However, with Ms. Kennedy’s own statements during a press conference that she suffered a partial seizure, the New York State Department of Motor Vehicles could suspend Ms. Kennedy’s license and not permit her to obtain a conditional license, until she is able to establish that her seizures are under control. The DMV issued a statement as follows: “The DMV suspends the driver’s license until a physician provides a certification that the condition is treated or controlled and does not affect driving skills.”

Therefore, the more prudent course might have been not to make any public statements until the blood test results were available. Ms. Kennedy is due back in Court on August 14, 2012 for further proceedings in the case. Undoubtedly, there have been some negotiations between her attorneys and the Westchester District Attorney’s Office, but with the high profile nature of this case, along with the fact that Ms. Kennedy was involved in an accident and left the scene thereafter, this case is not likely to resolve immediately.

If Kennedy is convicted of the DWAID charge, she would face a six month revocation of her driver’s license; a $500.00 fine and mandatory New York State surcharge of $400.00; have to install and maintain an ignition interlock device in any vehicle she owns or operates for one year; be screened for alcohol and/or substance abuse; be required to attend a 7 week Drinking Driver Program sponsored by the New York State Department of Motor Vehicles (known as the “DDP”), and also have to attend one session of a MADD Victim Impact Panel. Further, she would be facing an additional fine of $750.00 known as a “Driver’s Responsibility Assessment” from the NYS Department of Motor Vehicles.

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Kerry Kennedy, the daughter of the late Senator Robert F. Kennedy and ex-wife of Governor Andrew Cuomo, was charged on July 13th with DWAID, or driving while ability impaired by drugs in Armonk, New York. The charges stem from an incident at approximately 8:00 AM on July 13, 2012 when Kennedy was allegedly driving her 2008 Lexus 350 erratically and struck a tractor-trailer on I-684 southbound near Exit 4 in Mount Kisco. Supposedly, Ms. Kennedy then left the scene and exited the highway at Exit 3 on Route 22, where she was found with a flat tire, slumped over her steering wheel, by a North Castle police officer.

Reports say that Ms. Kennedy failed the 3 Standardized Field Sobriety Tests, including the nystagmus test, walk and turn, and one leg stand. The District Attorney’s Office states that Ms. Kennedy informed the investigating officer that she had taken an Ambien before driving. Ms. Kennedy has alleged that she may have had a seizure at the time of the accident, and has stated that she has no memory of anything from the time she entered 684 until a police officer was at her car door and began asking her questions.

Preliminary reports show that Ms. Kennedy had no alcohol in her system, but although she and her attorney have claimed that drugs tests were also negative, this would seem to be premature, as laboratory reports are usually not available within 4 days of a DWI charge. Ms. Kennedy is charged with the misdemeanor of DWAID, and it possible that she could also be charged with leaving the scene of a property damage accident under section 600 (1) (a) of the New York State Vehicle & Traffic Law, which is a traffic infraction and not a crime.

Ms. Kennedy was arraigned on July 17, 2012 in North Castle Town Court and pled not guilty to the charges against her. If she were convicted of the DWAID charge, she would face a six month revocation of her driver’s license; a $500.00 fine and mandatory New York State surcharge of $400.00; be required to install and maintain an ignition interlock device (IID) in any vehicle she owned or operated for one year; be screened for alcohol and/or substance abuse, be required to attend a 7 week Drinking Driver Program sponsored by the New York State Department of Motor Vehicles (known as the “DDP”), and also be required to attend a Victim Impact Panel. Further, she would be facing an additional fine of $750.00 known as a “Driver’s Responsibility Assessment” from the Department of Motor Vehicles.

Ms. Kennedy was ordered to be evaluated for alcohol and drug abuse and fingerprinted by Town Justice Elyse Lazansky. She is due back in Court on August 14, 2012.

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