Articles Posted in DWI Topics Of Interest

Last week, we posted on initial blog regarding the new ignition interlock requirements pursuant to Leandra’s Law, which went into effect on August 15, 2010. This article will discuss additional requirements and elements of the law. When you are sentenced to either a misdemeanor DWI or New York felony DWI, you must have the ignition interlock device (IID) installed within 10 days of your sentence. Once the IID is installed, you must report the installation within three days to the Court.

When you are ordered to install an IID, the Court will require that any vehicle you have access to (own or operate) has the device installed. Your conditional driver’s license, if you are eligible for one, will note that you are required to have an IID in your car. Thus, if you attempt to rent a car, the rental car facility must only rent you a vehicle equipped with an IID. If they do not do so, both you and the rental car ownership can be subject to a potential misdemeanor charge.

The device must be serviced on regular intervals as directed by the probation department, in order for information to be downloaded and provided to the sentencing Court, District Attorney’s office and county probation department. If you have one or more missed or failed start up tests or one or more failed or missed rolling tests, this can be the basis for re-sentencing by the Court. If you or someone else attempts to tamper with the device, disable the device, or if you have someone else blow for you, this can lead to a misdemeanor charge.

There is also a “lockout mode”, which is triggered if you fail or miss a start up test, re-test or fail or miss a rolling test or re-test. If you do not re-take the test and pass it within 5 days the car will go into lockout mode. When this happens, the only way the vehicle can be started again is to take it back to the installer and have the device reset.

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Effective August 15, 2010, there are new Ignition Interlock Device (IID) rules in effect for all New York DWI or Aggravated DWI cases. The rules apply to any motorist charged after December 18, 2009, and convicted or pleading guilty after August 15, 2010. The new law does not apply to convictions of New York driving while ability impaired (DWAI), which is a traffic infraction, but to all misdemeanor and felony DWI convictions.

The IID’s must be installed in all vehicles that the motorist owns or operates. This language is critical, as in many cases, the law will require that the person convicted of the felony or misdemeanor DWI install the IID in more than one vehicle, with family members such as spouses or grown children also having to utilize the IID in vehicles that they share with the driver convicted of the DWI.

The (IID) must remain in the vehicle for at least 6 months. It must be installed by a County approved installer. There are fees for both the installation and monthly maintenance of the IID, which must be paid by the driver. If you can prove, through a lengthy “Financial Disclosure Report”, that you are unable to pay for the IID, the County will pay for all costs involved.

The IID operates by requiring that a motorist blow into a ignition interlock device (IID) in order to start the ignition to the vehicle. If the IID detects a blood alcohol concentration of 0.25% or greater, the vehicle will not start. If there is a failed start up test, the driver is required to do a re-test within a few minutes. If the re-test is failed or missed, this violation will be recorded on the device and the information will be provided to the county probation department, the sentencing Court and the District Attorney’s Office.

Once the vehicle is started, the driver will be required to perform a re-test on regular intervals of approximately 15 to 30 minutes. If the test is failed, a “rolling re-test” must be passed within 3 minutes. If there a failed or missed rolling re-test, there will be a violation with the information being reported to the three entities described above.

In our next installment, we will discuss some potential violations and other related information about the IID.

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When charged with a New York drunk driving offense, under the New York Vehicle & Traffic Law your license will be automatically suspended at your first Court appearance under the doctrine “suspension pending prosecution.” In essence, since a license is a privilege, the Courts reverse the principle of innocent until proven guilty, and your driver’s license (or driving privileges in New York for out of state residents) is suspended at the arraignment regardless of the fact that you may win your case. From the date of the arraignment until the conclusion of the case, you will have no driving privileges whatsoever unless a hardship license is granted.

In order to obtain a hardship privilege, there are several factors which must be met to determine if you are eligible. Among these factors, you must not have refused to take a chemical test such as a breathalyzer, and you are not eligible if you have had a previous drunk driving conviction or plea within the last 5 years. To obtain a hardship license, you must testify at a “Hardship Hearing”, which is conducted by the judge within three days of your arraignment, but frequently, on the same day as the arraignment. Additionally, your testimony must be confirmed by a family member, friend or witness who can testify that without your driver’s license during the pendency of the case, you would suffer not just hardship, but “extreme hardship.”

At the hardship hearing, you must prove that you have no viable alternative means of getting to work other than driving yourself. Thus, the proof must be that public transportation or taxis are not available to you, or that financially, you could not afford to pay the cost of taxis, buses or trains based upon your salary or earnings. Thus, documentation proving what you earn, such as pay stubs or W2’s, are often utilized as evidence. Further, the additional witness must confirm that there are no family members, friends or co-workers that could drive you to work while the case is proceeding.

Hardship licenses are for a limited purpose–to allow you to drive to and from work, and only during the days and times permitted by the Court. If you work from Monday to Friday, you will not be permitted to use your hardship privilege on a weekend regardless of the reason. Hardship licenses are not available to salespeople or, for example, people that drive for a living and are required to make multiple stops–UPS drivers, truck drivers, or delivery people. In sum, the privilege only permits driving from home to work and back home, nothing more.

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In an eye opening article in the January 17, 2010 Journal News, several officers acknowledged off the record what many suspected for a long time: When off-duty police are stopped for Westchester DWI or traffic infractions, they are frequently helped out by other officers who get them a ride home and make sure their car is put in a safe place. The protection of intoxicated fellow officers is off the table when an accident is involved, since as one cop noted: That’s a situation that you can’t hide…I’m not going to risk my career in a case like that.” The officers who are stopped for DWI routinely refuse to take a breathalyzer, knowing that this will can significantly hamper the D.A.’s ability to prove a DWI case, despite the fact that the refusal carries with it a one year revocation of their operating privileges if proven at the DMV “Refusal Hearing.”

The issue of off duty cops driving drunk came to light as a result of a spate of four recent accidents involving Westchester police officers. On December 11, 2009, Dobbs Ferry Police Officer Michael Huffman was charged with DWI in a rollover accident in Tarrytown. On December 27th, there were two accidents–Westchester County Police Officer Joseph Kraus allegedly went through a red light in Scarsdale and struck the vehicle of on duty officer Jessica Knatz, who was hospitalized as a result of the accident, and County Correction Officer Patricia Yancy-Johnson is alleged to have struck an ambulance in Greenburgh. Lastly, on December 31, 2009, White Plains Police Officer Joe Zepeda is accused of striking a truck on I-287. All four officers are due back in Court between January 26th and February 5th, and all have been suspended by their departments, in Zepeda’s case without pay, pending the results of their criminal cases.

Westchester D.A. Janet DiFiore professed to be “very disappointed” to hear that officers anonymously admitted to covering for off-duty cops who drive while intoxicated, although she stated that she was “not surprised.” DiFiore also claimed to be looking to strengthen the penalties for refusal to take a chemical test, however, this would certainly seem to be beyond her purview as this is a provision of New York’s Vehicle & Traffic Law which would have to be amended by the New York State Legislature, not a local D.A.

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Under the recently enacted Leandra’s Law, which went into effect in December, 2009, motorists will now be charged with a felony if accused of a New York DWI with children under the age of 16 in the car. The law was named for Leandra Rosado, an 11 year old girl who was killed in a rollover DWI accident in October of 2009 while a passenger in car of her friend’s mother.

Westchester County’s first arrest under Leandra’s Law was made in mid-December when William Ordonez was charged with two felony counts of DWI, including having a BAC of 0.20, more than twice the legal limit of 0.08, and a misdemeanor charge of driving without a license. Ordonez apparently had three children, ages 5,7 and 11, in the vehicle at the time of the arrest.

On December 28, John B. Dickson of Scottsdale, Arizona was charged with felony DWI under Leandra’s Law when he was arrested in Somers with two children, ages 6 and 8 in the vehicle. Dickson was also charged with two misdemeanor counts of endangering the welfare of a child.

Putnam County’s first arrest under Leandra’s Law was more dramatic. Connecticut resident Joann Celli traveled to the Putnam County Sheriff’s Department to discuss a complaint when she was allegedly observed to be intoxicated and arrested for felony DWI. Celli was charged with New York felony DWI for apparently driving 40 miles with her 10 and 11 year old children in the vehicle.

In addition to the tragic case of Leandra Rosado, the new law was also in large part motivated by the horrific accident on the Taconic Parkway last July in which Diane Schuler drove while intoxicated and high on marijuana, killing 8 people, including her three young nieces, two year old daughter and three men in the vehicle her car struck.

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Two motorists who drove the wrong way on the Taconic Parkway have now been indicted on numerous charges on November 2nd. Gregorio Pena, a 44 year old resident of Manhattan and livery driver, was indicted on charges of first degree reckless endangerment, a felony, aggravated DWI, New York DWI, and reckless driving, all misdemeanors. Pena was charged with driving his taxi northbound in the southbound lanes of the Taconic in Yorktown on September 9, with a blood alcohol content (BAC) of .20, more than twice the legal limit of 0.08 %.

On September 17th, police arrested Henry Garcia, a 19 year old Ossining resident, after he drove 7 miles south in the northbound lanes of the Taconic Parkway from the Underhill exit to Mount Pleasant. Garcia apparently had a BAC of 0.27, and is being held at the Westchester County jail. Garcia was also charged with first degree reckless endangerment, reckless endangerment and two New York driving while intoxicated offenses. The New York aggravated DWI charge is made when the BAC is .18 and above.

The substantial charges against Pena and Garcia come amid complaints by the victims’ families in the tragic Schuler accident this past July (In which eight people were killed and Schuler’s BAC was found to be .19) that the Westchester D.A., Janet DiFiore, failed to file criminal charges against the husband of Diane Schuler for knowingly allowing his wife to drive in an intoxicated condition.

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Until Labor Day, Westchester, Rockland and Putnam County police are stepping up their efforts to make New York drunk driving arrests as part of the national “Drunk Driving. Over The Limit. Under Arrest” campaign. There will be extra checkpoints set up throughout the region, and there will be an increased emphasis on drunk driving arrests during the morning and afternoon hours, rather than late at night when motorists are expecting the checkpoints.

In 2008, according to the National Highway Traffic Safety Administration (NHTSA), there were close to 13,000 traffic fatalities, and approximately 40% of those deaths were attributed to accidents with a drunk driver. Closer to home, there were 3,100 Westchester County DWI arrests last year, and approximately 1,100 Rockland County DWI arrests in 2008.

The New York State Department of Motor Vehicles (NYSDMV) has indicated that driving under the influence of alcohol and or drugs increases in the late summer, which is the reason for the enhanced efforts to arrest drunk drivers with more checkpoints throughout the day, rather than only at night.

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The tragic July 26 accident in which Diane Schuler drove the wrong way on the Taconic Parkway, killing eight, (with a BAC of well over twice the .08 legal limit and THC in her system) continues a trend of Westchester DWI cases with mothers driving while intoxicated with their kids in the car. It is well known by now that the Schuler tragedy was the worst car accident in Westchester in 75 years, but what has not been reported is just how frequently mothers are getting arrested for Westchester County drunk driving over the last three years. These include Jeannine Chrysogelos, who was recently arrested for drunk driving and child endangerment when she was found passed out in her driveway after picking her kids up from school, and Deborah Havir, who left the scene of a one car crash with her three children in the car.

Two nearby Putnam County DWI cases include that of Susan Rogge, of Mahopac, who drove off the road while returning from a carnival with her 13 year old daughter and four of her friends in the car. The daughter called the police from a cellphone and Rogge was arrested. Suzanne Kristofferson of Putnam Valley was arrested driving home from a party with five kids in the car. Both cases are presently pending in local Putnam courts. The most tragic case in recent memory prior to the horrible Schuler accident involved Ann Marie Ciarcia, 47, who drove the wrong way on the Saw Mill River Parkway in Dobbs Ferry in September of 2006 with her 15 year old daughter and the daughter’s 16 year old friend Emily Cornish in the car. Ciarcia’s vehicle collided with a car proceeding in the other direction, and Ms. Cornish was killed in the accident. Ms. Ciarcia is serving a 16 month sentence for her conviction on Westchester manslaughter, vehicular assault and DWI charges.

Interestingly, FBI statistics show that nationwide, between 1998 and 2007, arrests of women for DWI or DWAID (driving while under the influence of drugs) have increased 28.8 %, while arrests of men have dropped 7.8 % during this 9 year span. But even with these dramatic statistical differences, it is very hard to fathom how someone can get in their vehicle and drive while intoxicated, risking the lives of their children and relatives. The attorney for Ms. Schuler’s husband has tried to posit other theories for her fatal wrong way driving, including a possible stroke, low blood sugar complications from diabetes, or problems from an abscessed tooth which she refused to get treated. However, none of these explanations account for a blood alcohol level of .19, (putting her in the class of aggravated DWI) 6 grams of undigested alcohol in her stomach and THC, the active ingredient in marijuana being found in her bloodstream. With civil suits likely to ensue in this sad case, we will undoubtedly be getting much more detailed toxicology results in the near future.

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When convicted of a New York drunk driving charge such as Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI), one of the most important issues for a client is maintaining their driving privileges to keep their jobs and limit disruption of their lifestyle. After you have either pled guilty or been convicted of a New York DWI or DWAI, if you have not had a drunk driving charge within the last five years (the 5 years is measured between your last conviction and the recent arrest), you should be eligible to obtain your conditional license by attending what is known as the “DDP” or Drinking Driver Program.

We have written about the DDP in a recent post entitled “New York DWI Terms-Part 2”. If you successfully complete the 7 week DDP, you will receive your conditional license, which permits you to drive:

1. To and from work;
2. To and from an accredited educational institution;
3. To and from any treatment programs, either DDP or other treatment mandated by the Court or DDP;
4. To and from day care or other facilities taking care of your children;

5. To and from medical or emergency treatment for you or your family members.

The conditional license will continue until you are eligible to get your license reinstated from either the DWI revocation or DWAI suspension, unless you do not meet the conditions of your sentence, in which case your conditional license can be terminated.

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If you are pulled over for a New York DWI or Driving While Ability Impaired by Drugs (DWAID), you will be asked by the arresting officer to take a chemical test of your breath or blood, commonly referred to as a ‘Breathalyzer.” If you refuse to take this test, at your first Court date, known as your arraignment, you will be ordered to appear for a “Refusal Hearing.”

The Refusal Hearing is held in the Department of Motor Vehicles before an Administrative Judge. In Westchester County, where our office is located, the Refusal Hearings are held in Yonkers. The Refusal Hearing is a civil proceeding separate and apart from the criminal charges against you for the DWI, DWAID, or DWAI (Driving While Ability Impaired). The arresting officer testifies before the administrative judge as to the basis for the refusal, and your attorney has the opportunity to cross examine the officer as to the alleged refusal and the circumstances of the arrest before the conclusion of the criminal case in the local Court, which can lead to useful evidence if you intend to fight the criminal case instead of seeking a plea bargain. It is frequently a good idea to subpoena the officer since they will sometimes not appear and seek to offer their report as proof of the refusal. You will also have the opportunity to testify as to the circumstances of your arrest and the alleged refusal.

The downside of New York Refusal Hearings is that the DMV judges tend to be pro-prosecution. If there is a reasonable basis to believe that you refused to take the chemical test of your breath or blood, despite being provided warnings by the officer as to the penalties for failing to take the test, you will be found guilty and your license to operate a motor vehicle in the State of New York will be revoked for one year.

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