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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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We recently wrote a post about terms you will need to know when you are facing a New York DWI or other drunk driving charge. In this article, we will review some additional terminology that will be particularly important during the arraignment, negotiation, pleading and sentencing stages of your case. When you are arraigned on for either a DWI, DWAI, or DWAID (meaning when your attorney will enter a plea on your behalf), in most instances, the presiding judge will request that you have an evaluation conducted by TASC. TASC stands for “Treatment Alternatives To Street Crime”, and the purpose of this evaluation is to have a substance abuse counselor determine whether you have a drinking or drug abuse issue. If the determination is that you do not have a substance abuse problem, there will be a recommendation that no further evaluation or treatment is required. If the counselor believes there is an issue, as part of your sentence for the DWI, you will be required to attend substance abuse counseling for a period of time recommended by the TASC counselor.

As part of the sentence in many Westchester DWI cases, you will also be required to attend one session of what is known as the VIP panel, or Victim Impact Panel. This is a class run by MADD, (Mothers Against Drunk Driving), in which you will generally pay a fee of $75.00, and will hear stories from the families of those whose family members were injured or killed in accidents with drunk drivers.

At the conclusion of all New York DWI cases, in order to be permitted to obtain a conditional driver’s license, (which will be discussed in more detail in a separate post), you will be required to attend the DDP, or Drinking Driver Program, which is run by the Department of Motor Vehicles, will run seven weeks, and cost about $375.00. The DDP is a treatment, re-education and evaluation program which you must attend promptly, take very seriously and be prepared at any particular time to be tested to determine if you have been drinking that day, which would result in additional treatment.

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When facing a New York drunk driving charge, you will quickly hear several terms which will have particular importance for your case. This article will familiarize you with a few of those terms. First of all, if you were required to take a test of your breath at the scene of your arrest for DWI, this is known as a BST, or breath screening test. Please note that this is distinguished from the Breathalyzer, which is the test of your breath performed at a police precinct. The major distinction is that the BST conducted by the arresting officer at the scene of the stop is not admissible in Court. Thus, if the officer believes he has probable cause to arrest you for Driving while intoxicated based upon the BST, you will then be asked to take a breathalyzer at the precinct.

The Breathalyzer is used to determine your BAC, or blood alcohol content. The results of the Breathalyzer are admissible in Court. In New York, if your BAC is found to be 0.08 percent or above, you are charged with DWI. If your blood alcohol content as tested either by your breath, blood or urine, is determined to be less than .08 percent, you cannot be charged with driving while intoxicated, and may be charged with a New York DWAI, or Driving While Ability Impaired, which the prosecutor will likely charge you with if your BAC is between .05 and .07 percent.

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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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New York State Senator Charles Fuschillo Jr. is about to introduce legislation in which all drivers convicted of New York DWI would be required to install ignition interlocks in their cars. Presently, Westchester County and six other New York counties give judges the option to require ignition interlocks in cases of multiple DWI. New York began its ignition interlock program 20 years ago. Advocates such as MADD (Mothers Against Drunk Driving) argue that unless the interlocks are mandatory, use is low. A spokesperson for MADD claims that ignition interlocks while those convicted of DWI are on probation reduces repeat offenses by an average of 64%. According to the federal Centers for Disease Control & Prevention, each day, 36 people die in car crashes with drunk drivers. In New York, there were 384 drunk driving deaths and more than 7,200 injuries in 2007.

An ignition interlock is approximately the size of a cell phone and is installed into the starting circuit of a car. The driver must blow into the interlock, and if he or she has been drinking, the car will not start. Interlocks can also be set up for “running retests” requiring a driver to provide breath tests at regular intervals. This way, if a sober person started the car, and the driver fails the retest, the horn will sound and the car’s lights will flash, alerting police officers in the vicinity.

It is unclear if the legislation Mr. Fuschillo is promoting has the votes to be instituted, as he is a Republican, now a minority party in the state Senate for the first time in many decades.

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Arrests for Putnam County DWI’s have increased by a stunning 35% in 2008, and Putnam’s lead prosecutor, District Attorney Adam Levy has stated he is ready to take action. There were 633 Putnam County drunk driving arrests in 2008, up from 469 in 2007, and 414 in 2006. In contrast, Westchester County DWI arrests have increased to a smaller extent over the last three years–the increase between 2006 and 2007 was from 2,515 to 2,650. (Numbers for 2008 were not available). In Rockland County, DWI arrests actually decreased from 1,215 in 2007 to 1,082 in 2008.

Mr. Levy has proposed an alcohol awareness program for first time DWI offenders arrested in cases where there has been no personal injury or property damage. The program would involve 35 hours of community service and attendance at a three hour class which costs $250 to attend. The money Putnam receives from course attendees would assist in paying the rising costs of DWI detection and prosecution, according to Levy. Out of state drivers arrested for New York drunk driving would have to take the course and perform the community service in Putnam County. One group that might object to the program would be New York State and alcohol treatment counselors, who would lose many of their clients to the County sponsored program. The proposal will be submitted to the Putnam County Legislature’s Health Committee on March 17.

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If you are arrested for a New York drunk driving charge, or for refusing a chemical test, in addition to any criminal penalties you will be assessed, you will also have to pay what is known as the “Driver Responsibility Assessment.” Beginning in November of 2004, The New York State Department of Motor Vehicles instituted the “Driver Responsibility Program.”

Under this program, if you are convicted of a New York DWI or refusing to take a breathalyzer test, you will be required to pay fines totaling $750 over a three year period. These fines can be paid $250 each year for three years, all at once, or you may pay the initial fine of $250.00 and then the remainder at any time within the three years. If you do not pay the assessment, the DMV will suspend your driver’s license, learner’s permit, or in the case of out of state drivers, your privileges to operate a vehicle in New York State.

The Driver Responsibility Assessment is also imposed on drivers who get 6 points or more on their license within an 18 month period for New York traffic violations. This assessment is a total of $300.00 for three years, which can be paid in $100.00 per year increments, all at once, or by paying $100.00 initially and then the remainder within the 2 following years. Each additional point above 6 points during the 18 months adds an extra $75.00 to the penalty.

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In New York State, driving with a Blood Alcohol Content (BAC) of .08 or above constitutes Driving While Intoxicated. In November of 2006, our legislature implemented a new law which created the charge of Aggravated Driving While Intoxicated in New York, which is defined as operating a motor vehicle with a blood alcohol content of .18 or above. The question to be discussed in this article is “If my BAC is above the .08 minimum for a DWI, but below the .18 to be charged with an Aggravated DWI, what are my chances of getting the reduced charge of a New York DWAI? (Driving While Ability Impaired).

The answer is that the eligibility for a reduction to the lesser charge of DWAI, which is a violation, not a misdemeanor like the DWI (and which results in only a 90 day suspension of your license rather than a 6 month revocation) depends on the County where you were charged. For example, in Westchester County, if you have a BAC of .14 or above, it is very unlikely if not impossible that you will have a chance to get the reduced charge of DWAI. There is a little more flexibility in Putnam County, and at The Law Office Of Mark A. Siesel in White Plains, New York, we have had clients who we were able to get a DWAI with a higher BAC than .14 in Putnam County, assuming that there was no property damage, no one was injured, and this was their first offense.

In many of the boroughs such as Manhattan, Queens and Brooklyn, if your BAC is .13 or higher, you are not likely to get a reduced charge and are facing a New York DWI. In Nassau County, the policies are even more strict, and a blood alcohol content of .12 and above will likely prevent a reduced charge.

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Dr. Luigia Notaristefano, an internal medicine specialist associated with Putnam County Hospital, was arrested on January 26 on charges that she sold narcotics prescriptions to an undercover Putnam County sheriff. Dr. Notaristefano is charged with eight counts of a Putnam County sale of a prescription for a controlled substance, and one count of third degree criminal sale of a controlled substance. Each of these charges is a felony under the Penal Law of the State of New York. The most serious charge, third degree criminal sale of a controlled substance under section 220.39 of the Penal Law, is a class B Felony, carrying a maximum prison term of 25 years.

The investigation into Dr. Notaristefano was a joint effort by the federal Drug Enforcement Administration, (DEA) the New York State Health Department, the Putnam County Sheriff and the Putnam County District Attorney’s Office, after it was learned that a doctor practicing in Putnam County was issuing a large number of narcotics prescriptions to her patients. The prescriptions were apparently for Vicodin, Valium and Suboxone, which is commonly prescribed to treat heroin addiction.

Dr. Notaristefano was arraigned by Carmel Town Justice Joseph Spofford and was released from the Putnam County jail on $25,000 bail. She is due back in the Southeast Town Court on February 3, 2009.

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