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Under legislation signed by Governor David Paterson on July 19, 2010, additional medical professionals will now be authorized to take blood from motorists charged with DWI. Under the original law, Section 1194 (4) of the New York Vehicle & Traffic Law, if requested by a police officer, the persons authorized to withdraw blood for determining the alcoholic or drug content are physicians, registered nurses, or registered physician’s assistants. Additionally, if supervised by a physician, a medical laboratory technician, medical technologist, a phlebotomist, or an advanced emergency medical technician are also permitted to draw blood to determine blood alcohol content (BAC).

The modification to the existing statute will now permit advanced EMT’s and certified nurse practitioners to withdraw blood from those charged with driving while intoxicated without supervision by a physician.

The impetus for the new law came from the family of Jack Shea, who was a two time gold medalist in speed skating in the 1932 Olympics. On January 23, 2002, an alleged drunk driver crashed into the vehicle operated by Mr. Shea, who later died from his injuries. The driver’s blood was drawn by an EMT, who was not supervised by a physician. As a result, the charges of vehicular manslaughter, criminally negligent homicide and driving while intoxicated were dismissed. Apparently, the reason that the EMT was required to draw the blood is that the physician’s assistant and nurse were attending to Mr. Shea. The Warren County D.A. Kate Hogan stated: ” Prior to today, there were hundreds of cases where dunk drivers who killed or seriously injured people were having their blood drawn by someone who is legally entitled to draw blood in the medical community, but because of an anomaly in the vehicle & traffic law, could not draw blood for purposes of criminal prosecution…it resulted in evidence, critical evidence, being suppressed and cases dismissed.”

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If you are convicted of a New York drunk driving charge, such as an Aggravated DWI, DWAID (driving while ability impaired by drugs), or a DWAI, in addition to any Court mandated fines, fees, penalties and surcharges, the New York State Department of Motor Vehicles (NYSDMV) taxes all motorists $750.00 for this conviction. The Driver Responsibility Program was instituted in November of 2004 with the stated purpose of preventing repeated DWI’s or traffic infractions.

The assessment is $750.00 and will also be imposed for a refusal to take a chemical test such as a breathalyzer, including for boats and snowmobiles. The fine can be paid in one installment or in three annual payments of $250.00.

There is also an assessment if the motorist gets 6 or more points on his or her license within a 18 month period. In those cases, the assessment is $300.00, with payment all at once or in annual payments of $100.00. Each additional point within the 18 month period adds on $75.00 for the three years.

Driver responsibility assessments are imposed on all drivers in the state of New York, regardless if they have a New York driver’s license. Failure to pay the assessment will result in a suspension of the motorist’s driver license, learner’s permit or driving privileges for out of state drivers.

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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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A recent New York DWI case in Port Chester highlights the significance of Leandra’s Law, which was enacted by the New York State Legislature in November of 2009. Under Leandra’s Law, also known as the Child Passenger Protection Act, a motorist with a blood alcohol content (BAC) of 0.08 or above, or under the influence of drugs, with children under age 16 in the vehicle, is automatically charged with a felony, even if it is his or her first DWI charge. The law was named after Leandra Rosado, who was killed last October in New York City when her friend’s mother overturned her car while intoxicated. Several other children were also injured in that accident.

This week, Port Chester resident Marcos Venegas was charged with six counts of felony DWI when he was stopped by police with 6 children under the age of 16 in his car. Apparently, Mr. Venegas had to pull over when one of his passenger became sick, and the police claim that when they investigated Mr. Venegas smelled of alcohol and was found to have a blood alcohol content above 0.08. Venegas was released on $1,000 bail and is due back in Court in mid June.

Leandra’s Law contains very stiff penalties: A conviction without any injuries results in a class E felony punishable by up to 4 years in prison. If a child passenger is injured, the motorist may be charged with a Class C felony and face a maximum prison sentence of 15 years. If a child is killed, the driver can be charged with a Class B felony punishable by up to 25 years in prison.

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On April 25, 2010, police in upstate Oneida County arrested a 20 year old Bedford resident for a New York drunk driving charge while he was supposedly driving at 153 mph. The driver, Shane Crolick, was reported to have been driving a 2005 Dodge Neon with three other people in the vehicle when he was chased by a trooper and eventually crashed his vehicle into a guardrail. Fortunately, no one was injured in the incident.

According to Terence Corcoran of Lohud.com, more than 100,000 drivers were convicted of speeding on Lower Hudson Valley roadways from ’06-’07 and about 450 were convicted of operating their vehicles in excess of 100 miles per hour.

Mr. Crolick is charged with Driving While Intoxicated (Blood alcohol level above 0.08 percent), reckless driving and unlawful flight (for attempting to avoid arrest), which are all misdemeanors under New York State law. He was released on $5,000 bail. If Mr. Crolick has no prior DWI’s and speeding tickets, he may be able to obtain a reduced plea to a DWAI, or Driving While Ability Impaired, which would then allow him to avoid a criminal record, as a DWAI is a traffic infraction, not a crime such as a DWI. However, due to the charge of operating at such a high speed under the Vehicle & Traffic Law, there is a question as to whether the local prosecutor would be willing to reduce the charges. We will attempt to follow the outcome of this case.

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We represent many clients who are charged with driving while intoxicated and a refusal to take a chemical test. Many of these clients were charged with a refusal since they did not understand the difference between 1) what is known as a “Breath Screening Test” (BST), which is used at the scene of an arrest, and is often called an “Alco Sensor”, and 2) the breathalyzer test or other chemical test which the arresting officer requests that the client undergo once they have been placed under arrest and taken to the precinct.

Simply put, the breath screening test is an unscientific test which the officer requests that the client take in order to have probable cause to make the DWI arrest. However, this test, since it is not scientific, is not admissible in Court. Thus, the arresting officer will request that the client take a breathalyzer, or other chemical test of blood, urine or saliva, at the precinct, which is admissible in Court and forms the evidentiary basis for proving a DWI case in Court. Of course, the officer never explains the distinction between the non admissible BST that the client took at the scene, as opposed to the scientific and admissible Breathalyzer which the client is requested to take at the precinct.

Inevitably, and to the client’s dismay and surprise, when the client responds to the request: “Will you agree to take a chemical test of your breath at this time?” with an “I already took the breathalyzer earlier”, the officer never explains the distinction between the tests–and thereafter, when the client does not take the breathalyzer thinking they have already done so, they are charged with a refusal.

The Refusal to take a chemical test is not a crime as is a DWI or Aggravated DWI, but it carries with it enormous implications for the client’s driving privileges, fines, and ability to resolve the criminal case. If found guilty of a refusal to take a chemical test at the Administrative hearing before a Department of Motor Vehicles judge, there is an automatic one year revocation of the client’s license, fines which are generally at least $1,000.00, and the client is now not eligible for a “20 day stay” at the end of the DWI case in order to more quickly get their “conditional license” which allows them to drive to and from work, doctor’s appointments, to pick up children from day care or for emergencies.

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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 off duty police officers in Westchester have been charged with New York drunk driving this month. On December 11, 2009, Michael Huffman, a 29 year old four year veteran of the Dobbs Ferry police force, was charged with DWI, speeding and crossing a double yellow line when he lost control of his Volkswagen Jetta and struck a guardrail in Tarrytown. Huffman was not seriously injured in the accident. He also refused to take a breath test and is due in Tarrytown Village Court on January 13, 2010. Huffman was placed on leave pending the outcome of the criminal charges.

On December 27, 2009, off-duty Westchester County police officer Joseph Kraus allegedly ran a red light while operating his Chevy pickup truck and struck a Scarsdale police car while intoxicated at the intersection of East Parkway and Popham Road in Scarsdale. Kraus admitted to having consumed 2-3 beers but refused to take a breathalyzer. Kraus was charged with misdemeanor DWI. Emergency personnel had to cut open the police cruiser, which was apparently demolished, to free Officer Jessica Knatz, who suffered facial and back injuries in the accident.

Ironically, 35 year old Officer Kraus had recently taken part in a WABC TV program which detailed the dangers of distracted driving as part of Westchester County’s “Crash Reduction Unit.” Kraus is suspended with pay pending a county police investigation.

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Beginning on December 18, 2009, it will now be a felony in New York to operate a motor vehicle while intoxicated with a child under the age of 16 in the vehicle. Leandra’s Law, named for Leandra Rosado, an 11 year old girl who was killed in a tragic New York DWI accident last October, will require that a motorist with a BAC (blood alcohol content) of more than 0.08 face a potential prison term of up to four years if they have a child 16 or under in the car. If the child is seriously injured in the DWI, the sentence could increase to 15 years, and if the child is killed, the potential jail term could be up to 25 years.

If convicted under Leandra’s Law, the motorist will have to install an interlock ignition system in the car, so that unless the driver is alcohol free, the car will not start. On August 15, 2010, the ignition interlock penalty will be assessed in all New York felony DWI or misdemeanor convictions. The interlock system costs approximately $100 to install and three dollars a day to use. The driver is required to pay these costs as part of his or her sentence.

The New York State Department of Motor Vehicles (NYSDMV) notes that there were 9,202 alcohol related accidents in 2008, with 488 children under 18 injured or killed. There were 5,970 felony DWI arrests in New York last year and over 46,000 misdemeanor DWI charges. The conviction rate was about 95% in these cases.

New York is now in the forefront of tough DWI enforcement around the country, especially if the motorist has young children in the car. The New York State Senate bill co-sponsor Martin Dilan noted that 59 children were killed or injured while passengers in a vehicle in a New York DWI accident in 2008. Governor Paterson stated: “Today, we are sending an important message to those who consider getting behind the wheel with a child while intoxicated. Today, we say enough.”

We will report on the effect of Leandra’s Law this spring when we have had a few months to see how local judges and district attorneys are enforcing its’ provisions.

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