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NY Governor Paterson signed “Leandra’s Law” on November 18, 2009, by which motorists accused of a New York drunk driving offense with a child under age 15 in the car will be charged with a felony. The law, which will actually go in effect on August 15, 2010 (270 days from the signing date), will also require that motorists convicted of a New York DWI install an interlock ignition device in their vehicles for at least 6 months.

Interlocks have been used for many years in NY Felony DWI cases, by which the motorists must blow into the device with alcohol free breath before their cars will start. According to the Westchester County Probation Department, they presently monitor 162 drivers required to use ignition interlocks. Westchester oversees over 1,700 motorists on probation for New York DWI, with 602 convicted of felonies. To prevent a drunk driver from utilizing a sober person to blow into their device, many agencies now use ignition interlocks which require the motorist to continue to blow into the interlocks at regular intervals. If the device does not get a non-alcohol breath, the car’s horn will blow and the lights on the vehicle will flash to alert authorities.

An ignition interlock costs $75.00 to install and $75.00 per month for maintenance fees. It is possible to get false readings if someone recently used mouthwash, for example, but waiting 5 to 10 minutes is usually all that’s needed to try the device again.

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We recently reported on the passage of “Leandra’s Law”, by which any motorist charged with a New York DWI with a child in the car under the age of 15 will be facing felony charges, even on a first offense. This past Saturday, Paul Amay, a 24 year old Mahopac resident, was arrested on a New York drunk driving charge with a blood alcohol concentration (BAC) of .29, almost 4 times the legal limit of 0.08. Mr. Amay’s 5 year old son was in the back seat, not restrained in a car seat.

Initially, Mr. Amay was charged with Misdemeanor DWI and child endangerment. However, the Westchester District Attorney’s Office is considering raising the Misdemeanor DWI to a Felony DWI pursuant to the new law. Mr. Amay is incarcerated in the Westchester County jail on $50,000 bail, and is due back in Ossining Village Court on December 1, 2009. If Mr. Amay’s DWI charge is raised to a felony DWI, the case will automatically be transferred to the County Court as Village Courts do not have jurisdiction in felony cases.

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Last month 11 year old Leandra Rosado was killed in a New York DWI accident on the Henry Hudson Parkway when the driver, 32 year old Carmen Huertas, lost control of the vehicle and it overturned. There were seven girls in the car between the ages of 11 and 14. Ms. Huertas was charged with vehicular manslaughter and driving while intoxicated.

As the result of this tragic accident, New York Governor David Paterson pushed “Leandra’s Law”, which would make it a felony to drive drunk with a child in the vehicle. Lenny Rosado, Leandra’s father, and MADD (Mothers Against Drunk Driving) pushed for the bill’s passage. The New York State Senate was ready to approve the bill this past week, but apparently, Assembly Democrats, led by Speaker Sheldon Silver, sought to weaken the bill by making the penalty a misdemeanor rather than a felony unless the driver’s BAC (Blood Alcohol Content) is at least 0.18, more than twice the legal limit of 0.08.

Silver is sure to face some opposition and criticism for his attempt to weaken Leandra’s Law. In response, Governor Paterson suggested that the BAC for a violation of the law be increased so that a BAC of 0.13 could result in a felony, halfway between the legal limit and the level in the bill. MADD is also seeking to have a mandatory requirement that anyone convicted of a New York DWI be required to install ignition interlocks in their vehicle.

New York is now the third state in the United States to make it a felony to drive while intoxicated with a child in the car, and the 12th state to require ignition interlocks for motorists convicted of drunk driving.

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After a conviction or plea to a New York drunk driving offense, such as driving while intoxicated, driving while ability impaired, or aggravated DWI, one of the biggest concerns that clients have is the ability to maintain their driving privileges. In many cases, clients will be able to drive under certain circumstances after their drunk driving conviction. This limited license is known as a conditional license.

A conditional license allows you to drive to and from work, to and from school, to and from necessary medical treatment, and to and from treatment or programs that are required as part of your sentence with the Court, such as attending a MADD Victim’s impact panel or the drinking driver program. To get a conditional license, you must enroll in and complete the DDP (drinking driver program) a seven week class sponsored by the Department of Motor Vehicles (NYSDMV). If you have taken the DDP within the last five years, you are not eligible to attend the DDP and will not be able to obtain your conditional license.

It generally takes approximately 20 days from the sentence date in your criminal case until you can enroll in the DDP, due to the delay between the local Court forwarding your paperwork to the DMV to establish your eligibility for the DDP. For this reason, as long as you have not refused a breath test, the local judge at your attorney’s request will issue what is known as a “Twenty Day Stay” of the enforcement of your license revocation, and you will then be eligible to begin driving while awaiting your entry into the DDP and receipt of your conditional license. However, if you have refused a breath test, you are not eligible to get a 20 day stay and will have to wait to drive until you enter the DDP.

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The Westchester County Board of Legislators has passed legislation requiring the forfeiture of cars for motorists convicted of any Westchester County drunk driving offense beginning on December 15, 2010. The new law also applies to those convicted of unlawful speed contests or drag races in Westchester County. The four county parkways which the new law would apply to are the Saw Mill River Parkway, Bronx River Parkway, Cross County Parkway, and the Hutchinson River Parkway. Thus, drivers convicted of Westchester County DWI or DWAI on major roadways such as 684, the Taconic Parkway or I-287 would not have their vehicles confiscated as these roadways are operated by New York State, not Westchester County. Interestingly, statistically speaking, there any many more speed contests and drag races on 684 than on the four county run parkways.

Westchester County police have made 498 DWI arrests this year, fast approaching the 588 arrests made in 2008. Opponents of the bill were in favor of the installation of an ignition interlock device, which the DWI convicted motorists would be required to blow into before starting his or her vehicle. If the device detects alcohol, the driver is not able to start the car. Clearly, there is a big difference between a driver who is convicted of a Westchester County DWI for the first time, and who has not injured anyone or been involved in a property damage accident, as opposed to a recidivist who has injured others or damaged property. Without doubt, the Westchester lawmakers were influenced by the tragic Schuler accident this past July, in which 8 people lost their lives when Diane Schuler drove her car the wrong way on the Taconic Parkway, killing herself, her daughter, three nieces, and three men in the car she struck. Ironically, the new law would not have applied in the Schuler accident as it occurred on a state operated road.

The forfeiture law will have a “hardship relief” provision, in which the defendant can avoid the forfeiture penalty if he or she can prove that confiscation would create substantial burdens on the defendant’s ability to travel to and from work, school, or medical treatment. This “hardship relief, if granted, would still require the installation of an ignition interlock in the car.

Over the last several years, there has been a continuous increase in Westchester County DWI arrests.The New York State Division of Criminal Justice Services reports that adult arrests for felony or misdemeanor DWI went from 2,337 in 2002 to 2,650 in 2007. The Westchester County Department of Probation notes that those convicted of DWI offenses account for 23% of their cases.

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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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We all know someone who has been pulled over by the police and charged with New York DWI or another drunk driving charge such as DWAI (Driving While Ability Impaired). During the course of this arrest for driving while intoxicated, the officer will request that the driver perform what are known as “Field Sobriety Tests.” The theory behind these tests, which are known as “divided attention tests”, is that a motorist who has been drinking will not be able to successfully perform them, and/or will be unable to follow the instructions given to them by the officer. The three Field Sobriety Tests that are standardized, and most commonly used, are the Walk & Turn Test, Horizontal Gaze Nystagmus, and One Leg Stand. In subsequent blogs, we will go into more detail as to each New York Field Sobriety Test, but a brief description of each follows.

The Walk & Turn involves walking along a designated straight line for 9 steps heel to toe, turning in a manner directed by the officer, and then walking back along the same line for 9 steps. Horizontal Gaze Nystagmus is a test in which the motorist is required to follow with their eyes a pen or pointer (known as the stimulus) as the officer moves it back and forth to determine if there is distinct jerking of the eyes (nystagmus), rather than what is known as “smooth pursuit” of the stimulus. The One Leg Stand has the driver stand with legs together and arms at their sides, then lifting one leg straight out, six inches off the ground, for a count of 30 seconds.

Numerous clues which the officer will then check for to determine if the motorist has passed these tests (on the Walk and Turn or One Leg Stand) are an inability to keep balance, using arms to balance, swaying, failing to count, simply failing to start when directed or not following instructions. Obviously these tests, although called “Standardized”, are highly subjective, as whether the person passes or fails is determined solely by an officer looking to substantiate his arrest. Further, there are numerous factors which could affect the results, including, to name a few, medical conditions that the driver might suffer from–epilepsy, vertigo, inner ear disorders; their physical condition, (such as being overweight or elderly), the side effects of medications or how much sleep the driver had the night before.

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Men and women absorb and metabolize alcohol very differently. Women will have a higher blood alcohol concentration (BAC) after drinking the same amount of alcohol as men. This is due to women having a smaller amount of body water and less of an alcohol metabolizing compound known as ADH in their stomach, permitting more alcohol to reach the blood. Generally, the amount of alcohol which is oxidized in a 150 pound male or female is about a half an ounce per hour–the equivalent of one 12 ounce beer, 6 ounces of wine, or one mixed drink (1.5 oz of liquor).

It is generally recognized that a 150 pound man will be legally intoxicated after 3 drinks, with a BAC of approximately .087, whereas, with a woman of similar weight, after three drinks, her BAC would be about .10. However, if the woman only weighed 100 pounds, she could easily become legally intoxicated (.08 or above) after as little as two drinks. Other factors, such as how much one has eaten, when they ate, what was consumed, and drinking habits do affect these approximate alcohol absorption calculations. Women are more likely to suffer from alcoholic liver disease, damage to the heart and brain damage from the long term effects of alcohol consumption.

Under New York State law, a driver can be charged with driving while intoxicated with a BAC of .08 and above, and charged with New York aggravated DWI with a blood alcohol content of .18 and above. If the BAC is less than .08, in the region of .05 to .07, a driver can only be charged with New York DWAI, or driving while ability impaired, which is a traffic infraction, not a crime.

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Alcohol is a central nervous system depressant. When alcohol is ingested, it passes from the stomach into the small intestine, where it is quickly absorbed and distributed throughout the body. The liver is responsible for 95% of the elimination of ingested alcohol in the body through metabolism. The remaining 5% is eliminated by excretion in breath, urine, sweat, saliva or feces.

Healthy people will metabolize alcohol at a fairly consistent rate. Generally, a person will eliminate one average drink of alcohol (0.5 oz.) per hour. Alcoholics frequently metabolize alcohol at a significantly higher rate than an average social drinker.

The less you weigh, the more you will be affected by alcohol. BAC (blood alcohol concentration) is the total alcohol in the body divided by body water. When you are arrested for a New York drunk driving offense, the amount of drinks you had is not s important as how much alcohol was in the drinks—thus, two glasses of whiskey could cause greater intoxication than several 12 oz. glasses of beer.

Drinks such as a Manhattan (1.15 oz.) or a martini (1 oz.) have much more alcohol than a 5 oz. glass of table wine (0.55 oz.) or a 12 oz. beer (0.54 oz.) The greatest alcohol content is found in Tequila (45% -50%) and rum, gin or vodka (40%). Beer, on the other hand, has between 3.2% and 4% alcohol content.

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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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