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Jojo John, the 36 year old operator of a 19 foot Stingray powerboat which collided with a barge just south of the Tappan Zee Bridge last July 26 around 10:45 PM, killing two and injuring three other people, pled guilty to two counts of vehicular manslaughter in the Rockland County Supreme Court on June 9, 2014 before Judge William Kelly. On July 26, 2013, John was at the helm of a speedboat on the Hudson River with friends Lindsey Stewart, 30, her fiancé Brian Bond, best man Mark Lennon, 30, and three other friends celebrating the upcoming nuptials of Mr. Bond and Ms. Stewart, which was scheduled for August of 2013. Ms. Stewart and Mr. Lennon were ejected from the boat when it struck a construction barge near the Tappan Zee Bridge and died at the scene. Mr. Bond suffered serious head and other injuries.

Mr. John was charged with operating the boat with a blood alcohol concentration (BAC) of 0.15%. The legal limit in the State of New York is 0.08%. John initially denied that he was intoxicated, and contended, as did the surviving passengers on the boat, that the barge was inadequately lit and that this was the reason for the fatal accident, not the purported intoxication of Mr. John.

Although the plea by Mr. John gives some closure to the case, the surviving passengers continue to believe that the poorly lit barge was a significant factor in the tragedy. A spokesman for the families, who are suing both Mr. John and the barge owners and operators in civil court for money damages, contended that the barge owners were warned prior to the accident that the lighting was insufficient and was “an accident waiting to happen.” However, Rockland County DA Thomas Zugibe stated on Monday that there was no evidence of any criminality on the part of the barge owners and that the accident was a result of John’s intoxication and the excessive speed of the boat. He also noted that John was an experienced boat pilot who knew the location of the barge from a previous trip up the Hudson River. Zugibe noted that the negligence claims could be litigated in civil court.

Mr. John faces up to two years in prison when he is sentenced on September 16. He has been free on $25,000 bail. With the guilty plea, this will strengthen the civil cases by the estates of Mr. Lennon and Ms. Stewart as well as the other three passengers who were injured in the accident, as the standard of proof in a criminal case, beyond a reasonable doubt, is much greater than that of a civil case, which is “preponderance of the evidence” (meaning that the evidence pointing to John’s culpability would have to be proven to be slightly more than 50%, already established by the criminal plea).

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On Friday, February 28, 2014, a Westchester County jury acquitted Kerry Kennedy, the 54 year old daughter of the late Robert F. Kennedy, of DWAID, or driving while ability impaired by drugs. Westchester prosecutors contended that on July 13, 2012, Kennedy had knowingly driven her Lexus SUV under the influence of Zolpidem, a generic form of Ambien, the sleep medication. The facts of the case, which to a great degree, were not contested, were that Ms. Kennedy was on her way to an Armonk gym from her house in Bedford, and had taken the Zolpidem shortly before leaving. She drove for five miles on local roads, entered I-684 where she sideswiped a tractor-trailer, and blew out a front tire.

Ms. Kennedy then drove on a bare rim onto Route 22, where police found her near the Armonk exit slumped over the steering wheel. She apparently failed field sobriety tests administered by the investigating officers and admitted that she might have taken an Ambien instead of her thyroid medication. Ms. Kennedy was arrested and charged with one misdemeanor count of driving while ability impaired by drugs. The case centered on whether Ms. Kennedy was aware as she was driving that she had taken the Zolpidem; she claimed that it was a mistake and she thought it was her thyroid pill, (which was similar in size and in a similar bottle, she contended) and prosecutors argued that she intentionally drove under the influence.

Generally speaking, with someone with no prior criminal record, those charged with misdemeanor impaired driving would plea bargain the charge to a non criminal traffic infraction, pay a approximately $600 fine, and agree to a 3 month suspension of their license with conditional privileges to drive to and from work, and for other essential reasons including to obtain medical treatment. Further, it is an extreme rarity for a case of this nature to ever reach the County Court, as the Court of original jurisdiction in this case was the North Castle Justice Court in Armonk.

However, due to the high profile nature of the case and the significant attendance by news organizations, family members, and the public, the case was moved to the ceremonial courtroom of the Westchester County Courthouse. The trial lasted four days and was highlighted by Kennedy’s testimony on Wednesday, in which she was asked many questions about her family history, work and character by her attorneys, which is also not typical in a misdemeanor impaired driving case. Judge Robert Neary permitted this questioning, and Ms. Kennedy denied that she ever knew that she had taken an Ambien before driving.

As prosecutors were never able to prove that Kennedy did know she had taken the Ambien, in my opinion, the verdict was a foregone conclusion, and the jury deliberated for only one hour over two days before rendering their not guilty verdict on February 28, 2014. Had Kennedy been convicted, she was facing up to one year in jail, (although with no criminal record, jail was highly unlikely and probation much more so) a revocation of her license for six months, and fines of approximately $1,000.

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On January 31, 2014, there was a fatal DWI accident in Tivoli, New York. Tragically, two Bard College students, 20 year old Evelina Brown of Seattle, and 19 year old Sarah McCausland of Winnetka, Illinois, were killed, and a third student, Selena Frandsen, suffered non life threatening injuries. The accident occurred at approximately 11:53 PM, when the three women were walking northbound on the shoulder of State Route 9G, (there is no sidewalk at the scene) just north of its intersection with Broadway. A 1987 Jeep Wrangler allegedly operated by Carol Boeck, 63, of Red Hook, struck them and then is alleged to have left the scene.

The only survivor of the accident, Ms. Frandsen, provided Dutchess County police with a description of the car, and Ms. Boeck was apprehended a short distance away from the accident scene. It has not been reported what Ms. Boeck’s BAC (blood alcohol concentration) was at the time of the accident, nor is there any information as to Ms. Boeck’s whereabouts prior to the crash. Under the New York State Vehicle & Traffic Law, a driver with a BAC of 0.08% or above is legally intoxicated. A level of 0.18% or above is grounds for a charge of aggravated DWI, which is a misdemeanor unless there has been a previous DWI charge in the last 10 years, upgrading the crime to a felony.

The Journal News reports that Boeck had a prior DWI conviction in 2005 based upon a review of records from the Dutchess County District Attorney’s Office. Under Leandra’s Law, a driver with a prior DWI within the last 10 years is automatically charged with a felony, and no plea bargains will be offered.

Ms. Boeck has been charged with first degree vehicular manslaughter and felony DWI as a result of the prior conviction. She was arrested and arraigned at the Village of Tivoli Court, and jailed on $50,000 cash bail, which she posted on February 1, 2014. The highest charge, the first degree vehicular manslaughter charge, is as a result of the fact that Ms. Boeck is alleged to have had a prior DWI conviction in 2005, and caused the death of more than one person. First degree vehicular manslaughter is a Class C felony under the Penal Law and can result in a jail term of up to fifteen years if Boeck is convicted. She is charged with two counts of first degree vehicular manslaughter for the deaths of Ms. Brown and Ms. McCausland.

Ms. Boeck is due back in Court on February 3, 2014. In addition to a jail sentence, it is likely that she will be facing a term of probation, a revocation of her driver’s license, mandatory attendance at a drinking driver program and victim’s impact panel, fines, the requirement that she install an ignition interlock device in her car whenever she is permitted to operate a motor vehicle again in the future, (which will be determined by the Dutchess County Probation Department in conjunction with the Court and DMV, and alcohol counseling sponsored by the County.

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New York Governor Cuomo announced last week that the State is strengthening the penalties for DWI convictions in Leandra’s Law cases, among other revisions. Leandra’s Law was named for 11 year old Leandra Rosado, who was killed in a crash when the driver taking her to a birthday party was intoxicated, lost control of her car, and the car flipped over. In December of 2009, Leandra’s Law went into effect, with two main provisions. First, the law made it a felony to drive while intoxicated with a child under the age of 16 in the vehicle. Second, any DWI conviction or plea of guilty would result in the requirement to install an ignition interlock device (IID) in any vehicle which the defendant owns or operates.

However, since the promulgation of Leandra’s Law four years ago, many of those convicted have been subverting the IID requirement by transferring ownership of their vehicle(s) to other drivers while serving their sentences.

Effective November 1, 2013, the law is amended as follows:

1. There are now more restrictions as to the circumstances in which a Court can waive the installation of an interlock device, and the defendant must now swear under oath that he or she does not own, operate, or have access to a motor vehicle and will not drive a car unless it is equipped with the device and he or she is otherwise eligible to drive.

2. The IID is now to be installed prior to sentencing, in contrast to the present law under which a defendant can operate a vehicle without the device until after sentencing.

3. The minimum period of interlock installation is increased from six months to one year (although in practice this is not a change with most Courts requiring one year presently).

4. It will now be a felony to get a DWI while driving with a conditional license, rather than a traffic infraction.

5. Youthful offenders will now be governed by the same IID requirement as adult drivers.

Since Leandra’s Law went into effect in 2009, more than 3,300 drivers have been arrested under the statute. As of June of 2013, more than 14,000 drivers have been required to have interlock devices in their cars thought New York State.

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In an article published in the Daily News recently, it is reported that NYC drivers who have been convicted or pled guilty to a DWI charge are either ignoring or evading the requirement that they install an ignition interlock device (IID) in their vehicles. Under New York’s Leandra’s Law, which was fully implemented in August of 2012, any drivers convicted of, or pleading guilty to a DWI, aggravated DWI or felony DWI in New York State must install an IID in any vehicles they either own or operate. The IID must be maintained in the car for at least six months by the statute; however, in practice, judges are routinely requiring that the device remain in the car for one year. The ignition interlock prevents a driver from starting the car unless they have alcohol free breath, which in actuality means that the level must be at approximately 0.02% or less, because many people have a certain level of breath alcohol naturally, even without drinking any liquor. If the device determines a blood alcohol concentration (BAC) of above 0.02%, the vehicle will not start, and if the person is not able to start the vehicle within a few minutes thereafter, a report is generated to the Department of Probation, who monitors and runs the interlock program in each county.

Additionally, Leandra’s Law makes it a felony to drive while intoxicated with a child under the age of 16 in the car. The law was named after Leandra Rosado, an 11 year old girl who was killed in 2009 when the driver of the car she was in, Carmen Huertas, flipped her vehicle on the West Side Highway on the way to driving several girls to a birthday party. Huertas is currently serving a four year jail term as a result of her DWI conviction.

The article notes that only 21% of drivers sentenced on DWI cases have installed the interlock device in their cars, which is less than half of the interlock rate for drivers across New York State of 44%. Since Leandra’s Law went into effect, 2,562 operators In New York have been convicted of or pled guilty to DWI charges requiring the installation of the IID. However, data shows that of that number, only 528 drivers have installed the interlock. According to City officials, many people transfer the title of their car to a friend or relative to avoid the law. Others claim that they have sold or taken their cars off the road. Charles Fuschillo, the Chairman of the State Senate Transportation Committee, who was a co-sponsor of the legislation, noted that the committee is considering new legislation which would require that a driver who had a previous DWI would have to install an IID the next time they registered a car.

If a driver tampers with an IID, attempts to have someone else blow into the device for him or her, or in any way violates the interlock requirements, this is a misdemeanor, with a potential sentence of up to one year in jail and fines.

Those convicted of DWI must install and maintain the IID at their own cost unless they can establish to the satisfaction of the Court through an extensive financial disclosure form that they cannot do so, in which case the local county will pay the expense.

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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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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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