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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On Sunday, June 10, 2012, New York Giants offensive lineman David Diehl was charged with DWI in Queens, New York. Apparently, at approximately 8:20 PM, after watching a soccer game at a bar in Astoria, Diehl entered his BMW and struck two parked vehicles on 35th Avenue near 31st Street. Diehl was arrested and brought before a Queens judge that evening. He spent the night in jail and was released on his own recognizance the following morning.

After being apprehended by police, Diehl submitted to a breathalyzer, which purportedly revealed a BAC of 0.18% of alcohol. Under the New York State vehicle & Traffic Law, anyone operating a motor vehicle in the State of New York with a BAC (blood alcohol concentration) of 0.08% or above is charged with a DWI. However, if the driver’s BAC is 0.18% or above, they are likely to be charged with aggravated DWI, which is a relatively recent enhanced charge that was first instituted in New York in 2006. Thus, although it has been reported that Diehl is being charged with DWI, the charges could be amended to include an aggravated DWI violation.

Since Diehl reportedly has a driver’s license issued in New Jersey, the New York Courts do not have jurisdiction to suspend or revoke his driver’s license on the DWI charge. In this situation, the Queens County judge suspended Diehl’s privileges to operate a vehicle in the State of New York, rather than his driver’s license, under the doctrine of “suspension pending prosecution.” Many people have the false notion that there is a constitutional right to a driver’s license, and express protest over this doctrine, since it is unknown whether the charges against Diehl will be proven. However, a driver’s license is a privilege, rather than a right, and thus, there is no valid constitutional objection to the suspension of a driver’s license or privilege pending prosecution.

If Diehl were to be convicted or pled guilty to the DWI charges, he would have his license revoked for a minimum of at least six months, be required to install an ignition interlock device (IID) in any vehicle he owns or operates for at least six months, have to pay fines and surcharges approaching $1,000, have to be assessed and possibly treated for alcohol abuse, pay additional fines to the New York State Department of Motor Vehicles in the amount of $750.00 for what is called a “Driver’s Responsibility Assessment”, and be required to attend the Drinking Driver Program (DDP) at the conclusion of the criminal proceedings, which is a seven week program sponsored by the New York DMV.

If Diehl were to be convicted on an aggravated DWI charge, he would pay additional fines in the amount of approximately $1,400, and have his license revoked for at least one year. He would also be subject to the remainder of the above conditions of treatment, IID installation, alcohol screening and payment of the Assessment.

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In November of 2009, New York State enacted Leandra’s Law after the tragic death of 11 year old Leandra Rosado, who was killed when a friend’s mother drove while intoxicated on the way to a birthday party. One of the main provisions of the statute was that anyone convicted or who pled guilty to a DWI related crime (with the exception of driving while ability impaired, which is a traffic infraction, not a crime, and thus not included in the statute) would be required to install and maintain an ignition interlock device (IID) in any vehicle they own or operate for at least 6 months. The IID prevents a driver from starting a vehicle unless they blow into the device with alcohol free breath (the device is actually calibrated to detect a blood alcohol concentration (BAC) of approximately 0.2%). Additionally, the operator of the vehicle must continue to use the device in regularly scheduled intervals as they drive the vehicle, approximately every 15-30 minutes, and if he or she fails any of these tests, the vehicle will lock up if a re-test is not passed within a short period of time.

Apparently, what state lawmakers are addressing is that approximately 30% of drivers are complying with the requirements of the law. According to an article in the Journal News published this past week and written by Aaron Scholder, many drivers have circumvented the law by transferring the ownership of their vehicles to family members until the IID requirement is over (although the law requires a minimum of six months, in my experience, it is almost always for one year), or driving vehicles other than their own which do not have the IID installed. New York State Transportation Committee Chairman Charles Fuschillo cites statistics that only 31% of those convicted of DWI have installed the devices in their vehicles, or approximately 7,100 drivers. Many convicted under Leandra’s Law will simply claim that they do not own a vehicle or have access to one, and sign a certification or swear under oath to that effect. To address this problem, the State Senate wants to require that those convicted under the law who claim to have no car wear an ankle bracelet that would monitor alcohol levels.

The legislation passed by the Senate has now been delivered to the State Assembly for their review, but seems to have stalled. Considering that the session will end at the end of June, the pressure is on the Assembly to act on the new bill. It would appear that no legislator would want to publicly oppose a law which seeks to address problems in a statute already on the books, but there is certainly the possibility that the new law will not pass both chambers prior to the late June end of session.

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John Goodman, the Florida multimillionaire who was found guilty of DUI manslaughter in March of this year, was sentenced to 16 years in jail and a $10,000 fine by Palm Beach County Circuit Judge Jeffrey Colbath on May 11, 2012. In sentencing Goodman, Colbath noted that his motivation after the accident occurred was only “to save himself”, and not to assist the victim Scott Wilson, who died in the accident.

Colbath denied the application of Goodman for a new trial after his March 23, 2012 conviction for vehicular homicide and DUI manslaughter. (In Florida it is known as DUI Manslaughter, which means driving under the influence, rather than driving while intoxicated in New York State). As we originally reported in March, the accident which killed 23 year old engineer Scott Wilson occurred on February 12, 2010 when Goodman’s Bentley passed through a stop sign and broad sided Wilson’s vehicle at approximately 63 miles per hour. Wilson’s car flipped over and was apparently pushed into a canal by Goodman’s car. The prosecution was able to prove that Goodman’s BAC (blood alcohol concentration) at the time of the crash was .177%, more than double the legal limit of 0.08%.

Goodman’s attorneys initially moved for a new trial based on the statements of one juror, Michael St. John, who alleged that he was pressured into the decision to find Goodman guilty in Wilson’s death. However, the prosecution argued successfully to Judge Colbath that these statements were too late, as when the jury originally announced its verdict, Mr. St. John indicated his agreement with the verdict and did not claim that he had been pressured. In denying the new trial motion, the judge stated: “To allow such decisions to be attacked months or even years after the close of a case because a juror experiences post-verdict regret would open our trial system to a virtual onslaught of attacks from dissatisfied parties and jurors.”

There was then a second application by Goodman’s attorneys for a new trial, as the result of the publication last week of a book by another juror, Dennis DeMartin, entitled “Believing In The Truth.” In the book, DeMartin reveals that during the case, before deliberations began, he engaged in an experiment in which he drank three vodkas the night before the jury deliberated to determine what impact this would have on his driving. Goodman had testified during the trial that he had only three drinks before the fatal crash, which would seem to be belied by the evidence that his blood alcohol concentration (BAC) was noted to be .177%, more than double the legal limit.

During preliminary instructions to the jury, judges generally inform the jurors that they should not read, listen to, or attempt to obtain any external evidence, including returning to crime scenes or reenacting any elements of an event. Judge Colbath, an experienced jurist, undoubtedly gave the jurors an instruction to avoid any external evidence during the pendency of the case, but DeMartin has claimed that he didn’t recall Judge Colbath instructing the jurors not to conduct any experiments. Based upon DeMartin’s allegations about the drinking experiment he performed, Goodman’s attorneys asked that the guilty verdict be tossed out as a result of what they claimed was a clear case of juror misconduct, stating “Mr. DeMartin flagrantly violated this Court’s instructions not to engage in personal investigations into the facts…” However, Judge Colbath rejected this second application for a new trial as well.

Although it is rare, there have been cases in which a verdict was thrown out due to juror experiments. For example, in 1986 in California in a case involving defendant Johnny Ramon Castro, a juror used binoculars to confirm the accuracy of the testimony of a prison guard who had testified that be viewed the defendant with binoculars during a prison riot. The verdict was overturned, despite the fact that the judge in the Castro case never specifically instructed the jurors not to conduct experiments, which Judge Colbath did do in the Goodman case.

Goodman could have faced up to 30 years in prison. He has been released on seven million dollar bond while his appeal is pending. Goodman is on house arrest, will be monitored with a GPS device, is not permitted to apply for a passport and his driver’s license has been permanently revoked.

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When stopped on a DWI charge in New York, the investigating officer will conduct what are known as “Standardized Field Sobriety Tests.” (SFTS) These tests are utilized by law enforcement officers to establish probable cause prior to the arrest of a driver who is suspected of operating a vehicle while intoxicated. A standardized field sobriety test is one of three separate tests which were designed to, and allegedly can successfully, predict a driver’s level of impairment. The SFST was created based on National Highway Traffic Safety Administration (NHTSA) research. The NHTSA sponsors a formal field sobriety test training program designed to teach police how to more accurately detect individuals who are potentially driving while intoxicated (DWI). The NHTSA’s field sobriety test program is administered by the International Association of Chiefs of Police.

The three components of a standard field sobriety test are the horizontal gaze nystagmus (HGN), the walk-and-turn (WAT), and the one-leg stand (OLS). HGN testing evaluates an allegedly intoxicated driver’s natural eye movements. The human eye involuntarily jerks when gazing too far to the side. In an allegedly intoxicated driver, the natural jerking motion occurs at a lesser angle than under normal circumstances. During the HGN, a police officer will evaluate how a driver’s eyes track a slowly moving object such as a flashlight or pencil. Throughout the exercise, the officer is examining whether the driver has the ability to follow the object smoothly and at what angle involuntary jerking of the eye occurs. According to NHTSA research, the HGN is capable of accurately predicting a blood alcohol concentration (BAC) of .08 (the standard for intoxication in New York and many other states) about 88 percent of the time. This testing may not successfully establish alcohol impairment, however, as seizure medications and other drugs can also affect a driver’s ability to track slow moving objects. Further, if the driver has allergies or recently suffered a concussion, (which the officer is required to inquire about but often do not), the test results will likely not be accurate.

Both the WAT and OLS tests are “Divided attention tests”< which measure both the driver's ability to perform physical tasks and follow instructions at the same time. Both examinations require an allegedly intoxicated driver to simultaneously listen, follow instructions, and perform specific physical movements. Normally, most individuals who have consumed alcohol will find the tasks more difficult to perform than those who have not.

A WAT test requires a driver to take nine heel-to-toe steps along a straight line, turn on one foot and repeat the exercise in the opposite direction. During the test, a law enforcement officer is examining a driver’s balance and ability to follow directions. According to NHTSA research, a failed WAT test accurately predicts a blood alcohol level of .08 approximately 79 percent of the time. An OLS examination requires a driver who is suspected of being intoxicated to stand on one foot and count aloud for about 30 seconds. During the test, a police officer is again watching the driver’s ability to maintain their balance. According to the NHTSA, the OLS test can accurately predict a blood alcohol level of .08 in approximately 83 percent of cases.

A DWI charge in the State of New York can result in serious repercussions for a driver. Most individuals who are accused of DWI fear they will lose their driving privileges, or are concerned that losing their license will cause a loss of employment and consequential implications for their families. If you are charged with DWI felony DWI under Leandra’s Law or any other impaired driving charge, you need to consult with a knowledgeable criminal defense lawyer as soon as possible.

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Earlier this month, an allegedly intoxicated Hudson Falls man was arrested after he reportedly drove in the wrong direction on southbound Interstate 87. According to the Warren County Sheriff’s Office, 32-year-old Jeremy Belden was charged with driving while intoxicated (DWI) following the incident. The arrest was Mr. Belden’s sixth DWI charge in approximately nine years. It was also the fourth time Mr. Belden was accused of felony DWI.

Mr. Belden was reportedly driving on a revoked driver’s license. At the time of his arrest, he was on probation and his automobile was not equipped with an ignition interlock device (IID) installed as required by the sentencing court. Although no one was injured during the incident, Mr. Belden is now facing felony DWI charges, reckless endangerment, aggravated unlicensed operation of a motor vehicle, and a misdemeanor charge of operating a motor vehicle that was not equipped with an ignition interlock device.

An IID is connected to the engine of a motor vehicle and its primary purpose is to prevent intoxicated drivers from operating motor vehicles on roadways in New York and other states. Since August 15, 2010, any driver who is convicted of any DWI charge (but not a DWAI, which is a traffic infraction, and not a crime) in the State of New York must have an ignition interlock device installed in any vehicle the driver owns or operates before he or she may resume driving a motor vehicle. An ignition interlock device will not allow the engine of a motor vehicle to start without first taking a breath sample to determine the level of alcohol in a driver’s system. If the alcohol level is above .025 percent, the engine will not start and the driver must retest. Drivers must also retest during specified intervals once the engine has started. The device will forward information regarding any failed tests to the driver’s sentencing court, the District Attorney’s Office, and the driver’s probation department.

Following a DWI conviction in New York, an ignition interlock device must be installed for at least 6 months. Monthly maintenance and installation fees are collected from a driver who is convicted of DWI unless the driver can demonstrate financial hardship or an inability to pay. Additionally, any ignition interlock device requirement is also noted on a driver’s operator license in an effort to ensure the driver fully complies with the requirement. Any evidence of tampering with the device may result in criminal charges.

A New York DWI charge can have serious implications for a driver. Most people charged with DWI do not want to lose their driving privileges and worry their job or family will be affected. If you were charged with DWI, you should contact a skilled criminal defense attorney as soon as possible.

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On March 26th, Bobby Brown, the 43 year old ex-husband of the late Whitney Houston, was arrested on driving while intoxicated charges in Los Angeles. He was apparently observed speaking on a cell phone without a hands-free device when he was pulled over at approximately 12:30 PM. The arresting officer requested that Brown perform Field Sobriety tests, which he allegedly failed.

It has been illegal to speak on a cell phone without a hands-free device in California since 2009. In New York, the law was recently changed under section 1225 of the Vehicle and Traffic Law to make a cell phone violation a 3 point infraction, in addition to $150.00 fine for the violation.

Mr. Brown has a prior DUI conviction in Georgia in 1996 and served 8 days in prison. Fortunately for him, in California, DWI convictions remain on a driver’s record for only 10 years, so the 1996 Georgia conviction will not affect the outcome of Brown’s present charges in California.

After Brown was stopped on March 26, he submitted to a breathalyzer which reportedly revealed a blood alcohol concentration (BAC) of 0.12%, which is higher than the legal limit of 0.08%, The legal limit was reduced to 0.08% from 0.10% in California in 1990. If Mr. Brown is convicted or pleads guilty to the DUI charges in California, he is subject to a fine of up to $1,000.00, a possible jail term of up to six months, and a six month license suspension.

If Mr. Brown was found guilty of DWI charges in New York, he would be contending with a six month revocation of his 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 he owns or operates for one year; be screened for alcohol/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 sponsored by Mothers Against Drunk Driving. Further, he would be facing an additional fine of $750.00 known as a “Driver’s Responsibility Assessment” from the Department of Motor Vehicles.

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The New York City Police Department’s Internal Affairs Bureau is currently investigating a police officer who was arrested on suspicion of driving while intoxicated while operating his police cruiser late last month. 31-year-old Christopher Morris was arrested after he drove his police cruiser into a light pole while on duty. Although no one was injured, the pole struck a parked van following the early morning crash.

His fellow officers purportedly knew Morris had consumed alcohol prior to the accident. Before his shift, Morris attended a fundraiser with several other officers on behalf on another officer killed in the line of duty in December 2011. At the event, Morris’ co-workers allegedly realized he was intoxicated and requested that he be placed on desk duty during his shift that evening in order to keep him off of the streets in his patrol car. Instead, Morris was allowed to enter his vehicle and crashed shortly thereafter.

After the collision, the five year police veteran refused a breathalyzer test. Morris was taken into custody for driving while intoxicated after a police supervisor reportedly smelled alcohol on his breath. He was also suspended from the police force for 30 days.

A driving while intoxicated (DWI) charge can have serious implications. Most people charged with driving while intoxicated are concerned with potentially losing their driving privileges and how the charge might affect their job or family members. The potential penalties for DWI, aggravated DWI, or DWAID (driving while ability impaired by drugs) include fines, jail time, mandatory alcohol evaluation, screening and or treatment, the requirement to install and maintain an ignition interlock device (IID) in any vehicles the person owns or operates for 1 year, and the suspension or revocation of the accused individual’s driving license. The penalties for those with a commercial driver’s license are even more severe and can certainly cause loss of employment or job opportunities.

Since 2006, a New York driver with a blood alcohol content greater than .18 will be charged with aggravated driving while intoxicated. If convicted on an aggravated DWI charge, a driver will automatically lose his or her driving license for one year. If you were accused of driving while intoxicated or while ability impaired by drugs, you need the services of an experienced, knowledgeable attorney as soon as possible.

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